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  • Ode Massacre Gujarat Riots Case Judgement

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    Sampath Bulusu
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    A special court in Anand has pronounced its verdict in the Ode massacre case in connection with the post-Godhra riots, wherein 23 persons belonging to minority community were burnt to death.The court has convicted 23 people in the case and has acquitted 23 for want of evidence. It will pronounce the quantum of punishment for the convicted persons on April 12. An agitated mob of about 2,000 gathered near Pirawali Bhagol in the Ode town of Anand district on March 1, 2002 and set a house on fire in which a small group of Muslims had taken shelter. Altogether 23 persons, mostly women and children, were killed in the incident. The same court also heard the case against 15 of these accused in connection with another incident that occurred the next day, in which an old person was killed. The special court hearing Ode massacre case today acquitted 14 persons in a murder case of one Ghulam Rasool Saiyed on March 2, 2002. The police lodged only one FIR for both the cases but two chargesheets were filed for which two separate trials were sought. Since the victims of the Ode killings were not content with the investigation carried out by Gujarat police, the case was taken up along with other major cases by the National Human Rights Commission (NHRC) before the Supreme Court which formed a special investigation team (SIT) to conduct further probe in the case. After the investigation was over, special judge S Y Trivedi charged 47 persons with murder, conspiracy, rioting, unlawful assembly, attempt to murder and destruction of evidence. One undertrial passed away during the proceedings. A red corner notice has been issued against Hirubhai Patel, one of the two accused who have fled abroad. SIT had recommended discharge of one of the accused Arvind Satabhai. During the trial, prosecution examined 158 witnesses, out of them 35 turned hostile. More than 160 documentary evidences were produced before the court by the SIT. After the hearing was over on March 21 last year, special judge Trivedi was transferred, and she resigned from judiciary the next month. Even the special prosecutor in the case also quit. The Gujarat high court appointed sessions judge P B Singh as special judge and senior advocate P N Parmar was selected by SIT as prosecutor in this case. Additional arguments on part of defense counsel ended in December 2012

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    A special court in Anand has pronounced its verdict in the Ode massacre case in connection with the post-Godhra riots, wherein 23 persons belonging to minority community were burnt to death.The court has convicted 23 people in the case and has acquitted 23 for want of evidence. It will pronounce the quantum of punishment for the convicted persons on April 12. An agitated mob of about 2,000 gathered near Pirawali Bhagol in the Ode town of Anand district on March 1, 2002 and set a house on fire in which a small group of Muslims had taken shelter. Altogether 23 persons, mostly women and children, were killed in the incident. The same court also heard the case against 15 of these accused in connection with another incident that occurred the next day, in which an old person was killed. The special court hearing Ode massacre case today acquitted 14 persons in a murder case of one Ghulam Rasool Saiyed on March 2, 2002. The police lodged only one FIR for both the cases but two chargesheets were filed for which two separate trials were sought. Since the victims of the Ode killings were not content with the investigation carried out by Gujarat police, the case was taken up along with other major cases by the National Human Rights Commission (NHRC) before the Supreme Court which formed a special investigation team (SIT) to conduct further probe in the case. After the investigation was over, special judge S Y Trivedi charged 47 persons with murder, conspiracy, rioting, unlawful assembly, attempt to murder and destruction of evidence. One undertrial passed away during the proceedings. A red corner notice has been issued against Hirubhai Patel, one of the two accused who have fled abroad. SIT had recommended discharge of one of the accused Arvind Satabhai. During the trial, prosecution examined 158 witnesses, out of them 35 turned hostile. More than 160 documentary evidences were produced before the court by the SIT. After the hearing was over on March 21 last year, special judge Trivedi was transferred, and she resigned from judiciary the next month. Even the special prosecutor in the case also quit. The Gujarat high court appointed sessions judge P B Singh as special judge and senior advocate P N Parmar was selected by SIT as prosecutor in this case. Additional arguments on part of defense counsel ended in December 2012

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    672 views474 pages

    Ode Massacre Gujarat Riots Case Judgement

    Uploaded by

    Sampath Bulusu
    A special court in Anand has pronounced its verdict in the Ode massacre case in connection with the post-Godhra riots, wherein 23 persons belonging to minority community were burnt to death.The court has convicted 23 people in the case and has acquitted 23 for want of evidence. It will pronounce the quantum of punishment for the convicted persons on April 12. An agitated mob of about 2,000 gathered near Pirawali Bhagol in the Ode town of Anand district on March 1, 2002 and set a house on fire in which a small group of Muslims had taken shelter. Altogether 23 persons, mostly women and children, were killed in the incident. The same court also heard the case against 15 of these accused in connection with another incident that occurred the next day, in which an old person was killed. The special court hearing Ode massacre case today acquitted 14 persons in a murder case of one Ghulam Rasool Saiyed on March 2, 2002. The police lodged only one FIR for both the cases but two chargesheets were filed for which two separate trials were sought. Since the victims of the Ode killings were not content with the investigation carried out by Gujarat police, the case was taken up along with other major cases by the National Human Rights Commission (NHRC) before the Supreme Court which formed a special investigation team (SIT) to conduct further probe in the case. After the investigation was over, special judge S Y Trivedi charged 47 persons with murder, conspiracy, rioting, unlawful assembly, attempt to murder and destruction of evidence. One undertrial passed away during the proceedings. A red corner notice has been issued against Hirubhai Patel, one of the two accused who have fled abroad. SIT had recommended discharge of one of the accused Arvind Satabhai. During the trial, prosecution examined 158 witnesses, out of them 35 turned hostile. More than 160 documentary evidences were produced before the court by the SIT. After the hearing was over on March 21 last year, special judge Trivedi was transferred, and she resigned from judiciary the next month. Even the special prosecutor in the case also quit. The Gujarat high court appointed sessions judge P B Singh as special judge and senior advocate P N Parmar was selected by SIT as prosecutor in this case. Additional arguments on part of defense counsel ended in December 2012

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    JUDGEMENT

    Registration No. :SC/44/2008 Filing No. :SC/44/2008 Filed on : 22/04/2008 Registered on : 22/04/2008 Decided on :04/05/2012

    IN THE COURT OF ADDITIONAL SESSIONS JUDGE, ANAND. (SHRI R. M. SAREEN) SESSION CASE NO.44 OF 2008. EXH.______

    Complainants : (1) (2)

    The State of Gujarat.

    Vora Rehanaben D/o. Yusufbhai Yakubbhai Vora, Residing at Ode, Taluka : Umreth, Dist. Anand.

    VERSUS Accused : Sr. No . Name of accused Age Residential address Surivali Bhagol, Ode Surivali Bhagol, Ode Surivali Bhagol, Ode Remarks

    01 Kantibhai Manabhai Chavda 02 Ravjibhai Manabhai Chavda 03 Jayantibhai Shanabhai Parmar

    40 38 30

    2/474

    04 Rameshbhai Manabhai Chavda 05 Poonambhai Dahyabhai Talpada 06 Ganpatbhai Chhotabhai Chavda 07 Budhabhai Shankarbhai Parmar 08 Harishbhai Vallabhbhai Patel 09 Vasantbhai Poonambhai Patel 10 Lalabhai @ Nileshkumar Manibhai Patel 11 Tino @ Maheshbhai Gopalbhai @ Ramabhai Patel 12 Mineshkumar Poonambhai Patel 13 Prakash @ Pako Jamnadas Patel 14 Umeshbhai Poonambhai Patel 15 Arvindbhai Mangalbhai Patel 16 Manubhai Ashabhai Patel 17 Natubhai Bhagabhai Patel 18 Vinubhai Ranchhodbhai Patel 19 Poonambhai Dahyabhai

    35 36 25 32 38 30 26 30

    Surivali Bhagol, Ode Nr. Bus stand, Ode Surivali Bhagol, Ode Surivali Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Dakor Vad, Ode Dakor Vad, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol,

    31 35 30 37 32 40 48 28

    3/474

    Patel 20 Chhotubhai Ramabhai Patel 21 Dilipbhai @ Deepakbhai Kanubhai Patel 22 Ashokkumar Harmanbhai Patel 23 Piyushbhai Bhailalbhai Patel 24 Samir Bhikhubhai Patel 25 Arvindbhai Bhagabhai Patel 48 35 25 26 36 52

    Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Pathharvadi Khadaki, Ode Malav Bhagol, Ode Abetted as per Pushis vide Exh.459, died during pendency of the case

    26 Riteshkumar Arvindbhai Patel 27 Manibhai Bakorbhai Patel 28 Ghanshyambhai Vallabhbhai Patel 60 Ashokbhai Dahyabhai 29 Patel 30 Bhaveshbhai Kanchanbhai Patel 31 Ghanshyambhai Shankarbhai Patel

    24 63 30 42 28 35

    Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode

    4/474

    32 Dilipbhai Ranchhodbhai Patel 33 Sujitbhai Harishbhai Patel 34 Pintu @ Raghuvirbhai Chandrakant Patel 35 Kiritkumar @ Bodiyo Manubhai Patel 36 Poonambhai Shanabhai Patel 37 Dineshbhai Parshottambhai Patel 38 Bhavesh Manubhai Patel 39 Bipinbhai Manibhai Patel 40 Sureshbhai @ Somaiya/Suresh Chunilal Somaiya 41 Sureshbhai @ Tato Ranchhodbhai Patel APPEARANCE

    35 26 25 26 35 37

    Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode Malav Bhagol, Ode

    Adult Ode, Tal. Anand Accused Adult Ode, Tal. Anand No. 38 to Adult Ode, Tal. Anand 41 joined vide applicatio Adult Ode, Tal. Anand. n Exh.288 and 345

    Ld. Special P.P., Shri B.C. Trivedi and Ld. Special A.P.P. Shri A.R. Desai on behalf of prosecution. Ld. Advocate Shri Mansuri & Ld. Advcoate Shri Shaikh on behalf of witnesses. Ld. Advocate, Shri C. K. Patel on behalf of accused no. 1 to 22 and accused no. 38 and 39. Ld. Advocate, Shri A. H. Dhagat on behalf of accused no.23 to 37 and accused no. 40 and 41.

    5/474

    JUDGEMENT

    (1)

    The accused are facing trial for the offence U/s. 143, 147, 148 r/w Sec.149 of I.P.C. and Sec.302, 435, 436, 440, 451r/w Sec.149 of I.P.C.; Sec.307 r/w Sec.149 of I.P.C., Sec.120(b) r/ w Sec. 34 of I.P.C.; Sec.295, 297, 395 r/w 149 of I.P.C. and Sec.135(1) of Bombay Police Act.

    (2)

    The facts of the prosecution case are that on 27/2/2002 there was train carnage incident occurred at Godhra in which many Kar Sevaks were burnt alive. As a reaction to the incident VHP (Vishava Hindu Parishad) and other organizations called for Gujarat Bandh on 28/2/2002 and at the same time on 1/3/2002 there was Bharat Bandh. On 1/3/2002 in between 13.30 to 13.45 hours, mob of 400 to 500 of Hindu persons hatching conspiracy and formed unlawful assembly possessing deadly weapons like Dhariya, sticks, swords, kerosene, petrol gallons and pouches of

    6/474

    petrol and burning rags of village Ode and pelted stones on the houses of muslims community who were in the minority in the village Ode and shouted to burn muslims alive, kill them and as such poured kerosene, petrol on the houses and shops of the muslims community and in pursuance of that house of complainant and witnesses

    were burnt in which one Nuriben Gafurbhai Vora and Aaiyeshaben Abdulbhai Vora were burnt alive and one Kadar Ismail Vora who was running for his life was called by mob and burnt alive by pouring kerosene on him and also poured kerosene on the witnesses who were running, as such injuring the witnesses. The mob burnt houses, cabins and shops and religious places of the muslims and also broke and damage the property and hurt the feelings of the muslims community in which three persons were burnt alive and many others were injured.

    In this commotion, the complainant and some of the

    7/474

    witnesses ran away and went to Sureli Camp, wherein the complainant Rehanaben Yusufbhai Vora declared contents before the Circle Police Inspector(CPI), Shri K. R. Bhuva on 5/3/2002 who registered the complaint and sent the complaint for registration in Khambholaj Police Station and thereafter took over the investigation of the case, as per the order of the Higher Authority.

    CPI, Shri K. R. Bhuva initially recorded the statements of injured who were admitted in the hospital passed the message of visitation to the Higher Authority, calling FSL Officer, pass the message for videography and photography and went to the place of incident. On 6/3/2002 draw the panchnama of the site of incident before the FSL officer, bones were lying at the scene of incident, 300 grams human bones and 50 grams ash were seized by way of panchnama. Mr. Bhuva has also draw the panchnama of the various properties in Malav Bhagol, 7 accused were found,

    8/474

    they were arrested, panchnama of the injured persons were drawn in the Govt. Referral Hospital at Umreth, additional statements of the complainant and her father Yusufbhai Yakubbhai Vora were recorded and on 7/3/2002 statements of other witnesses were recorded. On 8/3/2002 statements of other witnesses and complainant showed the place where Aaiyeshaben and Nuriben were burnt alive. As such before two panch witnesses, the panchnama of the place were drawn and bones, two pieces of Sari piece and Petticoat were identified by the complainant which was seized by way of panchnama, Muddamal was sent for analysis in the FSL. On 9/3/2002 the statements of other witnesses were recorded, on 10/3/2002 report of addition Sec. 395 was given by the I.O. and other witnesses were recorded. On 11/23/2002 also statements of witnesses were recorded and also on 14/3/2002 interrogation of accused no. 1 to 7 was done, panchnama of rickshaw and Metador was carried out by the I.O., on 23/3/2002 further

    9/474

    statements of complainant was recorded. On 1/4/2002 accused no 7 to 14 and 15 to 44 as they were released on anticipatory bail, they were released by the I.O. as per the order of the Sessions Court. On 24/5/2002 blood sample of Idrisbhai son of deceased Aaiyeshaben was collected for D.N.A. On 16/7/2002 blood sample of Illiyasbhai Ismailbhai Vora brother of deceased Kadarbhai Ismailbhai Vora was collected for D.N.A test and was sent to the FSL. He has also done procedure for drawing map of site, thereafter as papers of charge-sheet were ready, charge-sheet was filed against the 44 accused before the Judicial Magistrate, Umreth, whereas 4 accused were shown as absconding.

    As the Judicial Magistrate, First Class, Umreth was not having jurisdiction to try the case, the Judicial Magistrate, First Class, Umreth vide order dated 29/8/2003 committed the charge-sheet to the Session Court at Kheda.

    10/474

    (3)

    It is admitted facts that Writ Petition was filed in the Honble Supreme Court regarding incidents of communal riots which took place after the Godhra train carnage, present case was also one part. As such the proceedings of the case was stayed by the Honble Supreme Court and on 26/3/2008 vide interim order passed by the Honble Supreme Court, Special Investigation Team(SIT) was formed and it was directed to the SIT to file report within

    stipulated time. The Govt. issued notification of forming of SIT on 1/4/2008, Dy.S.P., Mr. H.C. Pathak was appointed for the investigation as SIT I.O., which was formed under the leadership of Mr. Raghvan retired C.B.I., Director. Dy.S.P., Mr. H.C. Pathak took over the investigation on 11/4/2008 and as per the application of complainant and her father recorded their statements and during that time, out of 44 accused as one accused Harishbhai Dahyabhai died his case was abetted.

    11/474

    One witness Alijibhai Ismailbhai had filed an application before the SIT that the dead bodies of the deceased persons in this case were thrown in step well(Vav) and well. As such in view of the application Dy.S.P., Mr. H.C. Pathak carried out the search operation in the Malav step well and Malav well from 13/5/2008 to 6/6/2008 and carried out various panchnamas. During the search operation one bone and Muslim religious sign moon and star was found which was ceased by way of panchnama. During search operation on 30/5/2008 one scull was founding in Malav well and from 31/5/2008 to 6/6/2008 various bones were found which was ceased on each day carrying out the panchnama, at the same time from Sikotar step well bones were found, primary report regarding bones were also obtained and

    after all the procedure adopted by the SIT, report was filed before the Honble Supreme Court by the SIT.

    (4)

    After report of the SIT was filed before the Honble

    12/474

    Supreme Court

    and on 1/2/2009 stay was lifted by the

    Honble Supreme Court and the case was sent for trial by the order of the Honble Supreme Court, Special Designated Courts were formed, Special Judges were assigned the work of trial, Special P.P. were appointed for each case, Witness Protection Cell was formed. As such present case in Khambholaj Police Station vide I-C.R. No.27/2002 was came before this Court for the trial as Special Court.

    (5)

    Initially as stated above, charge-sheet was filed against the 44 accused, out of which accused Natubhai Satabhai, Ankurbhai Shapurbhai, Samirbhai Vinubhai, Rakeshbhai Haribhai, Mohanbhai @ Sashin Rameshbhai, Nikulbhai Ravjibhai Patel; as they were fled away, their bail bond was cancelled and amount of surety was recovered in the Court from the Surety and their case was separated. Whereas accused Harishbhai Dahyabhai died before the proceeding

    13/474

    came to start during the proceeding of the SIT. As such 37 accused remains present before the Court.

    (6)

    Charge was framed against the 37 accused U/s. 143, 147, 148 r/w Sec.149 of I.P.C; Sec.302, 435, 436, 440, 451 r/w Sec.149 of I.P.C.; Sec.307 r/w Sec.149 of I.P.C.; Sec.295, 297, 395 r/w Sec.149; Sec.120(b) r/w Sec.34 of I.P.C. and Sec. 135(1) of B.P. Act.

    (7)

    As the accused did not plead guilty, evidence was recorded in the case. During the course of evidence, complainant and victim filed application U/s. 173(8) of the Criminal Procedure Code vide Exh.211 which was rejected. As such revision was filed being aggrieved by the complainant and witnesses in the Honble Gujarat High Court which was also dismissed. As such the proceedings initiated; evidence was recorded, during the recording of the evidence, the victims filed an application at Exh.288 and prosecution filed an application at Exh.345, U/s. 319 to join additional accused

    14/474

    and after hearing both the parties, this Court ordered for joining of 4 accused, whose names were disclosed in the evidence. The proposed 4 accused challenged the order of this Court in the Honble High Court and they failed to get any favourable order. As such the matter was again conducted after joining 4 accused, framing the charge against accused no. 38 to 41 and thereafter prosecution filed their closing purshis vide Exh.454 after retrial. (8) Prosecution has adduced following oral and documentary evidence in this case as under: ORAL EVIDENCE A EVIDENCE OF PANCH WITNESSES: Sr.No. Witness Name of witnesses No. 01 01 Bismillakhan Akbarkhan Malek Details Panch witness of site of incident where bones and ash were seized Panch witness of panchnama of burnt houses near Bismilla Masjid Panch witness of panchnama of Exh. 79

    02

    02

    Akbarmiya Husenmiya Malek

    81

    03

    03

    Mustufabhai Umarbhai Vora

    85

    15/474

    04

    04

    05

    05

    06

    19

    07

    20

    person injured witness Faridkhan Panch witness of Jabarukhan Pathan the place where Aaishaben and Nuriben were set to have been burnt alive Firozbhai Rasulbhai Panch witness of Vora panchnama of burnt Metador Maheshbhai Panch witness of Vitthalbhai Patel panchnama regarding search operation in Sikotar step well Virendrakumar Panch witness of Pyarelal Sagar panchnama of search operation in Malav well

    87

    89

    173

    181

    B EVIDENCE OF DOCTORS / MEDICAL OFFICERS / FSL OFFICERS: Sr.No. Witness Name of witnesses No. 01 06 Dr. Sanjay Krushnadas Parikh Details Exh. 93

    02

    07

    03

    08

    Medical Officer of Umreth Referral Hospital who treated injured. Dr. Chhaganbhai Expert doctor of Jinvarshah Raibarkar examining Muddamal bones Dr. Ashish Manibhai Dr. examining

    100

    104

    16/474

    Patel

    04 05

    09 10

    Dr. Dhananjay Maganbhai Patel Dr. Alok Rameshwar Pradad Meena

    06

    11

    Dr. Sanjay Jivabhai Chauhan

    07 08

    12 13

    Dr. Pankaj Haridas Barai Dr. Suresh Vitthaldas Sitpuria

    09

    14

    Dr. Nikunj Narhari Brahmbhatt Dr. Arvind Jethabhai Dalwadi

    10

    15

    11

    16

    Dr. Umaben Jadavbhai Pipliya

    bones found near Malav Bhagol Masjid FSL Scientific Officer Dr. of primary examination of bones recovered from Malav well Dr. examining bones recovered on 6/6/08 from Malav well Dr. examining bones sent by SIT FSL Officer who remains present from 13/5/08 to 6/6/08 during procedure done at Malav step well and well Medical Officer conducted DNA test Medical Officer collected blood sample of Sahinben Yasinbhai Vora for DNA test. Medical Officer collected blood sample of Illiyasbhai Ismailbhai Vora

    108 111

    120

    122 131

    133

    145

    150

    17/474

    12 13

    17 63

    for DNA test Dr. Anilkumar Forensic DNA Madhukant Maheta Assistant Director Dr. Bhupendrabharti Expert doctor Bhikhabhati Gosai examining bones in year 2002

    153 351

    C EVIDENCE OF MAIN EYE WITNESSES AND VICTIMS: Sr.No. Witness Name of witnesses No. 01 21 Idrisbhai Abdulbhai Vora 02 23 Rehanaben Yusufbhai Vora 03 24 Details Exh. 209 244

    04 05 06 07 08 09 10

    29 35 36 37 39 47 48

    11

    49

    Eye witness and injured witness Eye witness / complainant and victim Yusufbhai Father of the Yakubbhai Vora complainant / eye witness and victim Salimbhai Illiyasbhai Eye witness Vora Firozbhai Ismailbhai Eye witness / Vora Kapadwanjvala injured witness Fakir Mahmad Eye witness / Gafurbhai Vora injured witness Firoz Ismail Vora Eye witness / Matarvala injured witness Samirbhai Eye witness Abdulbhai Vora Razakbhai Abdul Eye witness Karimbhai Vora Mahebubbhai Eye witness Abdulbhai Karimbhai Vora Alijibhai Ismailbhai Eye witness Vora

    249

    260 269 270 272 276 291 292

    293

    18/474

    12

    55

    Altafbhai Safimahmad Vora

    Eye witness

    307

    D EVIDENCE OF HOSTILE WITNESSES: Sr.No. Witness Name of witnesses No. 01 25 Karimbhai Rasulbhai Vora 02 26 Yasin Nurmahmad Vora 03 27 Yunusbhai Ismailbhai Vora 04 28 Inayatbhai Yunisbhai Vora 05 30 Mahmadbhai Rasulbhai Vora 06 31 Hanifaben Sattarbhai Vora 07 32 Safiyabanu Karimbhai Vora 08 33 Rasidaben Yunusbhai Vora 09 34 Sahenazben Nurmahmad Vora 10 38 Samikbhai Karimbhai Vora 11 40 Amitbhai Karimbhai Vora 12 41 Gulamhusen Rasulbhai Shaikh 13 42 Mahmadbhai Abdulbhai Vora 14 43 Saburbhai Abdulbhai Vora 15 44 Majidbhai Allarakha Details Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Hostile witness Exh. 254 255 256 259 262 263 264 265 266 275 277 279 280 281 285

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    16

    50

    Vora Nurmahmad Rasulbhai Vora

    Hostile witness

    296

    E EVIDENCE OF WITNESSES WHOSE PROPERTY WERE DAMAGES: Sr.No. Witness Name of witnesses No. 01 45 Ahemadbhai Abdulbhai Vora 02 46 Safimahmad Hasambhai Vora 03 51 Ismailbhai Abdulbhai Vora 04 52 Safimahmad Nurmahmad Vora 05 53 Rajmahmad Gulam Husen Shaikh 06 54 Yusufbhai Fakir Mahmad Vora 07 56 Husenmiya Abbasmiya Malek 08 57 Details Exh. 286 287 297 301 302 303 308

    Victim of property damage Victim of property damage Victim of property damage Victim of property damage Victim of property damage Victim of property damage Labour engaged in excavation process in 2008 Salimbhai Yusufbhai Victim of Vora property damage

    309

    F GOVERNMENT WITNESSES. Sr.No. Witness Name of witnesses No. 01 18 Prafulbhai Vamanbhai Patel

    Details Exe. Engineer, Irrigation Dept. who remains present during procedure on Malav step well

    Exh. 163

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    02

    22

    Dineshchandra Thakorbhai Modi

    03

    58

    Sanjaykumar Ramjibhai Patel

    04

    59

    05

    60

    Kamleshbhai Jaydevbhai Brahmbhatt Vishalbhai Dhulabhai Bharvad

    Maintenance Surveyor, drawing map of place of incident Police Constable who has taken photograhs of Shiv Sadan Fire Officer

    235

    313

    317

    06 07

    66 67

    Executive Magistrate, Anand Rural Ramanbhai Bavaji Dy. Mamlatdar, Parmar Revenue Dept. Ashokbhai Tulsibhai Mamlatdar Patel Anand Rural

    322

    432 437

    G POLICE OFFICERS: Sr.No. Witness Name of witnesses No. 01 61 Narvatsinh Bhupatsinh 02 64

    Details

    Exh. 337

    03

    65

    Head Constable / PSO, Khambholaj Police Station Keshubhai Rambhai C.P.I., Bhuva Investigating Officer in year 2002 Himanshu SIT I.O., Dy.S.P. Chandravadan Pathak

    360

    367

    H FORMAL WITNESS:

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    Sr.No. Witness Name of witnesses Details Exh. No. 01 62 Sahinben Abdul Daughter of 344 Kadar Vora deceased Kadarbhai Ismailbhai Vora I DEFENCE WITNESS: Sr.No. Witness Name of witnesses No. 01 01 Mahendrabhai Ambalal Patel Details Owner of Sadan as defence Shiv per Exh. 465

    DOCUMENTARY EVIDENCES : The prosecution has filed the documentary evidence in this case as under: Sr.NO. Details of Documents 01 Panchnama of Ode Malav Bhagol near Bismilla Masjid 02 Panchnama of place of offence opposite Bismilla Masjid, Ode 03 Panchnama of the persons of the injured witness 04 Panchnama of house of Abdul Yakubbhai Vora, recovered bones and other Muddamal 05 Panchnama of Metador No.GJ-7V-9534 and Rickshaw No.GJ-7W-163 06 Injury certificate of injured Idrisbhai Abdulbhai 07 Injury certificate of injured Firoz Ismail Matarvala Exh. 80 82 87 88 90 94 95

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    08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

    28 29

    Injury certificate of injured Fakir Mahmad Gafur Vora Injury certificate of injured Firoz Ismail Kapadwanjvala Injury certificate of injured Abdul Yakubbhai Vora Certificate of Mr. P.J. Raibarkar, Anatomist, Medical College Letter dated 11/3/02 and Yadi dated 14/3/02 adduced by Dr.Raibarkar Yadi given by Dr. Ashish Patel to the Police Yadi given to Dr. Ashish Patel dated 6/3/02 by CPI Letter written by Dr. Ashish Patel to the Scientific Officer sending sample Report of FSL Scientific Officer to Mr. D.M. Patel FSL report of procedure done in Malav step well Yadi given by Chaudhary to Dr. Alok Rameshwar Prasad Meena Report of Dr. Alok Meena dated 30/5/08 Opinion of Dr. Alok Meena dated 31/5/08 Opinion of Dr. Alok Meena dated 1/6/08 Opinion of Dr. Alok Meena dated 2/6/08 Certificate of Dr. Alok Meena dated 3/6/08 Opinion of Dr. Alok Meena dated 5/6/08 Opinion of Dr. Alok Meena dated 21/10/08 Opinion of Dr. Sanjay Jivabhai Chauhan dated 6/6/08 Yadi written to Forensic Medicine Department, Baroda regarding opinion for the Muddamal bones Receipt of receiving Yadi of Forensic Medicine Department, Baroda Report regarding bones given by Forensic

    96 97 98 101 103 105 106 107 109 110 112 113 114 115 116 117 118 119 121 123

    124 125

    23/474

    30 31 32 33 34

    35 36 37 38 39 40 41 42 43 44

    45 46

    47 48

    Medicine Department, Baroda Certified literature of Forensic Medicine Department, Baroda Letter and Yadi dated 21/10/08 written by SIT to Anatomy Department S.S.G. Hospital Report of S.S.G. Hospital as per Yadi dated 21/10/08 Report of Additional Director, FSL regarding work done at Malav well and Malav step well Forwarding letter and dispatch note dated 4/7/08 regarding Muddamal blood sent for DNA test Report of FSL, Gandhinagar Letter regarding DNA report sent by FSL dated 6/8/08 D. N. A. report Dispatch note sent by SIT regarding D.N.A. examination of bones dated 24/7/08 Receipt of Muddamal by FSL, Gandhinagar Report and letter of FSL dated 6/2/08 regarding D.N.A. Report and forwarding letter of Muddamal bones dated 1/1/08 Copy of dispatch note sent by SIT dated 1/11/08 Receipt of dispatch note and Muddamal Letter of Medical Officer, Anand sending D.N.A. profile of Shahinbanu alongwith blood sampe for D.N.A. matching for bones of deceased Kadarbhai Ismailbhai D.N.A. profile performa Yadi written for matching of blood sample of Illiyasbhai Ismailbhai with Kadarbhai dated 16/7/02 D.N.A. performa of Iliyasbhai Ismailbhai Report dated 28/5/02, Ahmedabad D.N.A.

    126 127 128 132 134

    135 136 137 138 139 140 & 141 142 & 143 144 144-A 146

    147 151

    152 154

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    49 50 51 52 53 54 55 56 57 58 59

    Division Letter written by Ahmedabad D.N.A. Division to Chandigadh FSL sending part of Muddamal Receipt of Chandigadh C.S.F.L. receiving the Muddamal and letter Report of C.F.S.L. Chandigadh Report of C.F.S.L. Chandigardh and FSL Gandhinagar to the Police Station Letter written by Dy. Director dated 13/8/03 Yadi sent to FSL dated 17/10/08 D.N.A. blood report of Kadarbhai and his daughter Sahinbanu dated 24/10/08 Letter written by Dy. Director to SIT dated 1/11/08 Letter written to Chief Engineer Irrigation Department by SIT
    Report dated 6/6/08 regarding obtaining Muddamal article from Sikotar step well and well

    155 156 157 158 159 160 161 162 164 165 166

    60 61 62 63 64 65 66 67 68 69 70

    Report dated 10/11/08 written by Executive Engineer Anand Division to Superintendent Engineer Report received from FSL dated 15/4/02 Letter and dispatch note written by SIT to Director, FSL, Gandhinagar dated 19/5/08 Receipt dated 30/5/08 written by FSL, Gandhinagar Letter written by Dy. Director, FSL to SIT dated 21/5/08 Panchnama dated 13/5/08 of Sikotar step well Panchnama dated 14/5/08 of Sikotar step well Panchnama dated 15/5/08 of Sikotar step well Panchnama dated 16/5/08 of Sikotar step well Panchnama dated 24/7/08 of Sikotar step well Panchnama dated 21/10/08 of Sikotar step well Panchnama of Malav well dated 15/5/08

    167 168 169 170 174 175 176 177 178 179 180

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    71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99

    Panchnama of Malav well dated 17/5/08 Panchnama of Malav well dated 18/5/08 Panchnama of Malav well dated 19/5/08 Panchnama of Malav well dated 20/5/08 Panchnama of Malav well dated 23/5/08 Panch slip from Muddamal Article no.5 Panch slip from Muddamal Article no.6 Panchnama regarding Malav well dated 24/5/08 Panchnama regarding Malav well dated 25/5/08 Panchnama regarding Malav well dated 26/5/08 Panchnama regarding Malav well dated 27/5/08 Panchnama regarding Malav well dated 30/5/08 Panch slip from Muddamal Panchnama regarding Malav well dated 31/5/08 Panch slip of Muddamal Article No.8 Panchnama of Malav well dated 1/6/08 Panchnama of Malav well dated 2/6/08 Panch slip of Muddamal Article No.10 Panchnama of Malav well dated 3/6/08 Panch slip of Muddamal Article No.12 Panchnama of Malav well dated 4/6/08 Panch slip of Muddamal Article No.16 Panchnama of Malav well dated 5/6/08 Panchnama of Malav well dated 6/6/08 Yadi written by CPI Anand to City Surveyor Letter written to Maintenance Surveyor, Ode by SIT Map of place of offence Original complaint Affidavit of complainant filed in the Honble

    182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 236 237 238 245 246

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    100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121

    Supreme Court Application given by complainant to SIT Affidavit of father of complainant filed in the Honble Supreme Court Copy of order regarding taking photographs in the name of Sanjaykumar Patani Photographs of place of incident CD of place of incident Abstract of entry of register of Fire Fighter Letter of proclaimation U/s.144 Notification of Executive Magistrate(Rural) dated 1/3/02 Curfew relaxing order dated 2/3/02 passed by the Executive Magistrate Curfew relaxing order dated 3/3/02
    Order dated 3/3/02 for relaxing curfew on 4/3/02

    248 250 314 315 316 318 323 324 325 326 327 328 329 330 331 332 333 334 335 336 338 339

    Order dated 4/3/02 for relaxing curfew on 5/3/02 Order dated 4/3/02 for relaxing curfew on 5/3/02 from 12.00 noon to 5.00 p.m. Order dated 5/3/02 for relaxing curfew on 6/3/02 Order dated 6/3/02 for relaxing curfew on 7/3/02 Order dated 7/3/02 for relaxing curfew on 8/3/02 Order dated 8/3/02 for relaxing curfew on 9/3/02 Order dated 9/3/02 for relaxing curfew on 10/3/02 Order dated 10/3/02 for relaxing curfew on 11/3/02 Order dated 13/3/02 for lifting of curfew Letter of CPI, Shri K.R. Bhuva regarding registration of complaint Abstract of station diary

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    122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142

    Xerox copy of FIR Letter written by Community Health Centre, Ode to Anatomy Department, Baroda Specimen seal and covers of sending Muddamal Receipt of Muddamal Letter of CPI, Anand regarding sent the certificate Certificate written by Anatomy Department Baroda to CPI, Khambholaj Rough note of Dr. Bhupendrabharti Gosai Dispatch note of sending blood sample of Illiyas Ismail Vora Notification U/s.33(1) of Bombay Police Act Order of inquiry sent by SIT Convinor to SIT Dy.S.P., Shri H.C. Pathak CD of work done by the SIT Letter written SIT Officer to FSL regarding matching blood sample of Sahinbanu Letter written by SIT, Dy.S.P. to FSL to hand over Muddamal to authorized person Letter dated 9/6/08 written by SIT to keep Muddamal in Khambholaj Police Station Receipts of Muddamal received from Sikotar step well Letter written by SIT, Dy.S.P. to Khambholaj Police Station Copy of public notice issued by the SIT Letter written by PSI, Khambholaj to SIT, Dy.S.P. Statement of showing proclaimation of public notice place by Khambholaj Police Station Copy of station diary of Khambholaj Police Station Affidavit filed by the complainant in Hon'ble High Court in Cri. Misc. Application No.1/2011

    340 352 354 355 356 357 358 361 365 368 369 370 371 372 373 374 375 376 377 378 420

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    143 144 145 146 147 148 149 150 151 152

    Affidavit filed by the father of complainant in Cri. Misc. Application No.164/2011 Voucher of amount paid to the victim Letter written by Mamlatdar (Rural) to PSI, Khambholaj Electoral roll and ration card of deceased mentioning them to residing in Ode Order of Dy. Mamlatdar, Anand Order of Dy. Mamlatdar, Anand Receipt of amount paid to Sahinbanu Receipt of amount paid to Idrisbhai Abdulbhai Vora Receipt of amount paid to Fakir Mahmmad Gafurbhai Affidavit of Defence Witness Mahendrabhai Ambalal filed in bail application of accused

    421 433 438 439 440 441 442 443 444 466

    Ld. Special P.P. has filed closing pursuits vied Exh.454. Thereafter further statements of all the accused were recorded, no accused has deposed on oath, but accused no.8 filed an application for examining defence witness vide Exh.461. All the accused have denied the case in toto and have stated that false charge-sheet is filed against them due to communal enmity

    After the defence witness was examined, the defence filed closing purshis vide Exh.467. Thereafter the matter was fixed for

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    argument on behalf of the the parties.

    (9)

    Ld. Special P.P., Mr. B.C. Trivedi has orally argued the matter and has filed written arguments on behalf of prosecution vide Exh.472. Whereas on behalf of

    complainant and victims, L.A. Mr. Mansuri has filed written arguments 6Exh.473. at Eh.474 after seeking permission vide

    Whereas

    L.A. Mr. C. K. Patel and Mr. A. H.

    Dhagat has argued the matter orally and also filed their written arguments vide Exh.479.

    This court has paid sufficient attention towards oral as well as written arguments advanced and/or submitted

    by the Ld. Advocates, appearing on behalf of both the parties and they are discussed hereunder at the relevant point in this judgement and therefore, at the cost of repetition, it is not produced here.

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    (10) In this case, Special Prosecutor, Mr. B.C. Trivedi and Additional Prosecutor, Mr. A. R. Desai as well as L.A. appearing on behalf of the original complainant and victim Mr. Mansuri and Mr. Shaikh has cited some authorities in support of their case. On the other hand, Ld. Advocates on behalf of accused, Mr. C. K. Patel and Mr. A. H. Dhagat has also cited some authorities. This court respectfully bows down with the law laid down by the Hon'ble Apex Court of India as well as by the Hon'ble High Court of Gujarat and other Hon'ble High Courts. All the citations are discussed at the relevant point in this judgement, hereunder for the sake of convenience.

    (11) The following points arise for my determination of this case.

    (1)

    Whether the prosecution proves that alleged 3 missing persons are dead ? If yes, whether the death of 3 persons is homicidal death?

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    (2)

    Whether the prosecution proves that the accused or any of them in furtherance of common object formed unlawful voluntarily assembly burning with a common object of

    properties

    causing

    death

    intentionally by fire, causing act to attempt to commit murder and to rob the properties of the muslims become member of unlawful assembly ? (3) Whether prosecution proves that accused in

    furtherance of common object of unlawful assembly by using force and violence have committed rioting by arming themselves with weapons and inflammable items ? (4) Whether prosecution proves that all or any accused as a members of unlawful assembly in furtherance of the common object have intentionally knowingly cause death of 3 persons by burning them alive and thereby have committed murder ?

    (5)

    Whether the prosecution proves that all or any of the accused have in furtherance of common object of unlawful assembly by burning witness have attempted to commit murder of the witness namely Idrisbhai Vora, Firozbhai Kapadwanjwala, Firozbhai Matarwala and Fakir Mahmmad Gafurbhai Vora ?

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    (6)

    Whether the prosecution proves that all the accused in furtherance of common object as a member of unlawful assembly or any of the accused individually has voluntarily caused hurt ?

    (7)

    Whether the prosecution proves that in

    all the

    accused or any of the accused have by forming unlawful assembly committed robbery or dacoity of the house-hold items of the victims ?

    (8)

    Whether the prosecution proves that accused in furtherance of the common object of unlawful assembly of all the accused or any of the accused have burnt movable and immovable properties of muslim persons and caused damaged to the property by fire and have committed the offence ?

    (9)

    Whether the prosecution proves that all the accused or any of the accused has committed criminal conspiracy to commit offence punishable for death, imprisonment for life or rigorous imprisonment ?

    (10) Whether the prosecution proves that in furtherance

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    of common object

    of unlawful assembly all the

    accused or any of the accused as member of unlawful assembly have spoken words intentionally to insult religious feelings of muslims and have committed the offence ?

    (11) Whether the accused have committed offence by committing breach of the notification of the District Magistrate by arming themselves deadly weapons, Dhariya, burning rags, lighting torch and inflammble items ?

    (12) Which of the accused are liable for committing offence, and if yes, under which sections ?

    (13) What order ?

    (12) My findings to the above points are as under : (1) In the affirmative.

    (2)

    In the party affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35. In the negative for other accused. In the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35.

    (3)

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    In the negative for other accused. (4) In the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35. In the negative for other accused. (5) In the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35. In the negative for other accused. (6) In the affirmative for accused no.30. In the negative for other accused.

    (7)

    In the negative for all accused.

    (8)

    In the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35.

    In the negative for other accused. (9) In the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35. In the negative for other accused. (10) In the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35. In the negative for other accused.

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    (11) In the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35. In the negative for other accused. (12) As per final order. (13) As per the final order.

    (13) Before entering into the appreciation of evidence and deciding all the points in the case first and foremost, it is desirable to discuss and decide the point regarding F.I.R.

    (14) As per the case of prosecution complainant, Rehanaben Yusufbhai Vora has lodged the complaint in Sureli Camp before the C.P.I. Mr. K.R. Bhuva which is produced during the deposition of the complainant at Exh.245.

    (15)

    As regarding the authenticity of the complaint and reliability of the complaint and relying upon the evidence

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    of complaint and also witness and it is argued by the Special Prosecutor that there is delay of filing the complaint, but it cannot be said to be fatal aspect to the entire case of prosecution. FIR was lodged on 5/3/2002 at the relief camp at village Sureli, no family members of the complainant or any other neighbour remained present in Ode after the incident happened. All the inmates of the locality were scattered, some going to Anand at the house of their relative, some going to Bhalej village. Whereas witnesses including the complainant were so scared and confused

    that they did not think of any thing, much less lodging the complaint. As per the deposition of Rehanaben, it is specifically mentioned that on 5th March, 2002 police came to the Camp and took her compliant and at the time of giving complaint, Firoz, Idris and her elder paternal uncle were under treatment in Umreth Hospital and she was too scared who were the police people is not known to her. SIT has also recorded her statements complaint was read over

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    which was true. It is argued by Mr. Trivedi Special Prosecutor that it is clear when the complaint was recorded at Sureli Camp Rehanaben was alone, her cousin and her father have left at Umreth for medical treatment of injured namely Idrisbhai, Firozbhai Matarvala and Firozbhai

    Kapadwanjwala, Fakir Mahmad and Abdulbhai. The question of Bai Rehana manipulating the complaint being tutored is out of place. The complainant was victim of the circumstance, she had not contacted anybody for lodging the complaint nor she has narrated the incident to anybody because atmosphere was totally charged with distrust and animosity.

    As regarding the cross examination of the Rehanaben is concerned in respect of late complaint filing FIR, also there is nothing substantial which can cast any doubt regarding lodging of the complaint. The question regarding possibility of being tutored by somebody is total denied. The witness

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    have escaped from the scene of offence, in such a way that they only priority was to save their lives. Some of them even came to know subsequently as to who has died and who were injured. As such based upon these arguments, Mr. Trivedi has submitted that FIR cannot be doubted in any manner and considering circumstances is justified.

    Moreover so far as FIR has been sent to the Magistrate, it is sent late, but considering circumstances, so many

    communal riots have taken place, naturally police staff must be under the tremendous pressure. These circumstances are such in which nobody can be blamed for late sending of the complaint to the J.M.F.C., Umreth. It is submitted by Mr. Trivedi that late FIR and late sending sending of the FIR to the J.M.F.C. are justified because of circumstances were so unusual and extraordinary. (16) The prosecution has relied upon the following citation on the point of delay sending FIR to Judicial Magistrate, First

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    Class. (1) Balram Singh & Anr. V/s. State of Punjab, AIR 2003 S.C. 2213. (2) Himmat Sukhadeo Wahurwagh & Ors. V/s. State of Maharashtra, AIR 2009 S.C. 2292

    (17) On the other hand L.A. Mr. C.K. Patel has argued on the point of late FIR and has submitted that the unfortunate incident has occurred on 1/3/2002 at 1.30 p.m. till evening. As per the case of prosecution and the complaint if lodged after 4 days on 5/3/2002. Before 5/3/2002 the complainant nor any of the injured witness had stated any ingredients of the incidents or the details of assailants before the police or in front of any person nor police has filed any complaint on behalf of the State considering incident. As such

    deliberately though the complainant and the witnesses were having opportunity of declaring the incident before the police, but have not done so and have adopted unnatural

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    conduct. As such concocted and got-up complaint has been filed by the complainant which cannot be believed in any manner.

    Mr. C. K. Patel has relied upon in the case of Kailash Gour & Ors. V/s. State of Assam, reported in 2012 Cri.L.J. 1050 S.C. (18) Upon hearing submissions of both the sides regarding significance or insignificance of FIR, in the evidence it is true that unfortunate incident has occurred on 1/3/2002 and FIR was lodged on 5/3/2002, it is also a fact that in the Camp when the complainant had gone for shelter has not uttered single word of the incident before anybody. As it appears from the evidence of Rehanaben at Exh.244 apparently and admittedly the complainant had gone to the Camp on 3/3/2002 in the morning. On 4/3/2002 injured were taken to hospital and so it appears that the injured were also scared till 4/3/2002. As considering the evidence of Firoz

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    Kapadwanjwala and Firoz Matarwala as appears from the PW-35 at Exh.269 and PW-36 at Exh.270. That both the witnesses were rescued by the police, however as per the say of the Firoz Kapadwanjwala it was Military police, it

    makes no larger difference, but it is fact that they were rescued by the police. Both the witnesses have narrated the facts before the police during their journey to Sureli. Now regarding the aspect of narrating the question before the police and there were opportunity to the witnesses is concerned, I am of the opinion that the incident which has occurred on 1/3/2002 was not a simple incident, but was communal riots which broke out after the incident of Godhra carnage. The atmosphere prevailing at that juncture was of disharmony and distrust only. The complainant and the witness who were witnesses of dangerous incident, must have been suffering from shock, panic and confusion. The priority at that time was to save their lives and not to go to the police station to narrate incident what was happened.

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    Naturally the complainant who was hardly 18 to 19 years old young girl and witnesses who were also same age group. When facing such atmosphere of commotion, panic, scary atmosphere, they would have gone in such a situation in shock and must have been stunned and at that time they would have not gone for filing of the complaint or disclosing the incident to other member in the Sureli Camp, which cannot be denied that the complainant was alone on 4/3/2002 as it appears from the deposition of Mr. K.R. Bhuva and according to him, he rescued two persons also has also not cared to take down the incident or interrogate question injured person even if injured have not told them or opted to go to for treatment, Mr. K.R. Bhuva has not taken care to take them to the hospital. Mr. K.R. Bhuva has not come forward to be a complainant of alleged incident on 3/3/2002 even in the evening nor has come in the

    defence of the witnesses, no police personnel present in the Camp and the suggestions put before the witness regarding

    police personnel in Sureli Camp before 5th March 2002 are denied. It is also pertinent to note that the complainant or any other witnesses have never discussed with each other or has got any opportunity to frame the facts of the complaint as it appears from the deposition of Rehanaben, Firozbhai Matarwala, Firozbhai Kapadwanjwala, Fakirbhai and

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    Idrisbhai, they have not discussed the

    question with

    anybody or inter-se, so there is no question of framing of any accused wrongly or framing of the facts of complaint wrongly. It is also pertinent to note that Hon'ble Apex

    Court has also taken cognizance of the situation prevailing in Gujarat after Godhra carnage and have some distrust

    towards role of police personnel and for that reasons SIT was constituted. As such ordinary person knowing nothing regarding legal action who has concerned to save his life and to survive in a atmosphere of disharmony cannot be said to immediately rush to the police first file the

    complaint rather than to save one's own live. So in my

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    opinion

    considering

    circumstances

    and

    atmosphere

    prevailing at the particular juncture, merely filing of the FIR if late cannot be said to be a entire cause for considering the entire prosecution version of the incident to be false and as such delay of FIR is not fatal considering the facts of this case to the prosecution. In the case of Kailash Gour V/ s. State of Assam, reported in 2012 Cri. L.J. 1050 S.C., wherein it is laid down by the Hon'ble Supreme Court that Delay in lodging F.I.R. - Murder alleged to have taken place in incident of attack by mob on house of deceased in disturbed area Police though reaching on spot immediately neither recording statement of witness nor recording F.I.R. - F.I.R. Recorded only after statement was given by witness owner of house naming accused only after deliberations with elders of his community No explanation given for delay in recording F.I.R. - Evidence of solitary eye-witness that he had seen murders in moon light doubtful due to

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    presence of fog Medical evidence not supporting prosecution case Motive of crime alleged to be demolition of mosque also doubtful as witness, owner of house had land dispute with some accused Held accused entitled to benefit of doubt.

    Mr. C. K. Patel has placed reliance upon the above cited ruling considering the facts of the case cited as there were no such compelling circumstances which have come on record in the present case and so the delay which was not satisfactorily explained was found to be a fatal to the prosecution. Whereas herein this case conditions of the witness and the complainant can be made out from the incident which has happened all the inmates have left the locality, no near relative, except the complainant was present in Camp, the 5 persons who were injured, who were waiting for their treatment, naturally first priority was to take treatment as they were burnt in the incident. As such

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    considering top priority of their lives, if they had not filed the complaint in time, it cannot be said that the entire incident has concocted.

    (19) As in the case of (1) Balram Singh & Anr. V/s. State of Punjab, reported in AIR 2003 S.C. 2213, wherein Hon'ble Supreme Court has held that F.I.R Delay jurisdiction Magistrate Whether in sending incident

    fatal

    occurred at 8.30 p.m. on 5/5/1990 Police station situated at distance of 40 Kms from place of incident Considering law and order situation in State during relevant period nothing unusual in police reaching hospital aroun 9.00 a.m. in morning on 6/6/1990 F.I.R. Recorded sent to jurisdiction Magistrate which reached him around 0305 hrs. on 6/5/1990 There is delay in preparing the F.I.R. - Delay of sending the same to the jurisdictional Magistrate by itself, would not in any manner weaken the prosecution case It has to be

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    judged keeping in mind creditworthiness of ocular evidence.

    (2)

    In the case of Himmat Sukhadeo Wahurwagh

    & Ors. V/s. State of Maharashtra, reported in the case of AIR 2009 S.C. 2292, wherein Hon'ble Supreme Court has held that Evidence showing that accused by their act had let loose reign of terror and were looking for more members of family of deceased Delay in filing F.I.R. And conducting investigation in circumstances becomes insignificant Conviction of accused not liable to be interfered with.

    (3)

    As in the case of Ramchandra & Anr. V/s. State of

    Punjab, reported in 1982 Criminal Law Journal 36, there was a delay in lodging the complaint and delay was caused to anxiety of relative to provide medical aid to the injured persons before filing of FIR. It was

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    observed that delay must be deemed to be well explained.

    Keeping in the mind ratio laid down in the cited ruling in my opinion no doubt there is a delay in filing FIR, but considering circumstance the atmosphere prevailing at the time the delay is not fatal to the prosecution.

    So far as FIR is sent to the Magistrate U/s. 157 of the Criminal Procedure Code is sent late which cannot be denied. Xerox copy of FIR at Exh.340 reveals that the FIR is sent to the Magistrate at a later stage. Looking to the circumstances prevailing at the relevant time communal riots had taken place under the various villages which were under the jurisdiction of the I.O., there were communal riots in Khambholaj, Vasad, Sarsa, Mogar, Mogari and Vallabh Vidyanagar. As such there was more than six police station involved in the bringing the situation in control at

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    the relevant time and so the staff must would have under tremendous pressure, hence mere late sending the complaint to the Judicial Magistrate, First Class at Umreth can never become the ground for doubting the complaint, considering circumstances at the relevant time unusual and extraordinary nobody can be blamed for the delay of

    dispatch the complaint to the Magistrate and once the complaint was lodged recorded in the station diary offence registered than, only the delay in sending the complaint to the Magistrate cannot have any importance upon the impact of the incident occurred and narrated in the complaint. Hence, in my opinion delay in filing the

    complaint and sending it to the Magistrate is not fatal to the prosecution in any manner.

    POINT NO. 1
    (20) The most important aspect in this case is that the accused have charged with the case of causing death of 3 persons by burning them alive; namely Nooriben, Aaiyeshaben and

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    Kadarbhai. No doubt it is unique case in which first of all, whether 3 persons are dead is to be established and thereafter, whether the death of the 3 persons is homicidal is to be seen. It is unique case that in the entire case no dead body of any person is recovered. The defence has challenged Corpus of murder, there is no recovery of

    dead body nor as per the say of defence Muddamal bone which are recovered are proved satisfactorily to be human origin nor any DNA test has been found in this case. As such defence has come with the case that 3 persons who have been alleged to be murdered are missing and not dead.

    (21) Whether in the case of murder identification of Corpus Delicti is necessary is to be seen. The following citations are relevant on the point of identification of Corpus Delicti relied upon by the prosecution in the case of (1) State of West Bengal V/s Mir Mohammad Omar, reported in AIR

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    2002 SC 2988, (2) Sevaka Perumal V/s. State of Tamil Nadu, reported in AIR 1991 S.C. 1463, (3) Badshah V/s. State of U.P., reported in 2008 AIR S.C.W 1359 and (4) Mani Kumar Thapa V/s. State of Sikkim, reported in AIR 2002 SC. 2920. (22) On behalf of the defence L.A. Mr. C.K. Patel has relied upon the case of Hari krishna V/s. State of Haryana 1990 Cri. Law Journal 385 (P & H).

    (23) Now appreciating this point first of all, it is required to be seen that the persons alleged to have been killed namely Nooriben, Aaiyeshben and Kadarbhai are dead or missing. No doubt as in this case, no dead body is recovered, no P.M. is conducted, there cannot be direct evidence regarding the death of 3 persons. But for appreciating point of death circumstantial evidence and other ocular evidence is to be seen in this case, panchnama of the scene of incident is carried out which is not denied. Panch witness

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    Bismillakhan Akbarkhan Malek has been examined at Exh.79, he has stated in his evidence that 5 to 6 years

    before the date of evidence on 6th he was called by C.P.I., Mr. K. R. Bhuva at Ode Malav Bhagol, there was one another officer who he does not know, the place was situated near the residence of Abdulbhai which was open place, there was heap of ash and some bones of ash were seized from the place, which were taken in a box, which was sealed and panchnama was drawn which was exhibited at Exh.80. In the same way panch witness Faridkhan Jabarukhan is examined at Exh.87, he has stated in the evidence on 8/3/2002 police has called him at Ode, Malav Bhagol as a panch at 6.00 p.m. In evening, Mr. K. R. Bhuva and other police persons were present, complainant Rehanaben was present, panch had gone to house no.839 which was of Aaiyeshaben consisting of 2 rooms and one open Osari. FSL Officer searched the ground with iron rod and found 200 grams of bones on which there was ash and

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    also found one piece of almond colour flower design Sari and one red colour piece of Petticoat, which was identified by the complainant Rehanaben as is of Aaiyeshaben. In the other house no.841, there was nothing found except ash, as such from the evidence of panch witness Bismillakhan Akbarkhan Malek and Faridkhan Jabarukhan Pathan, it is undisputed that charred bones were recovered.

    (24) The aspect of collection of bones is also supported by the say of the Dr. Dhananjay Maganbhai Patel, Scientific Officer, Mobile who is examined at Exh.108, he has stated in his evidence that on 6/3/2002 at morning 5.50 a.m., he departed from Anand towards Ode and went to the place situated near Manu Bhagats house open place, Mr. K. R. Bhuva met him, there was a heap of house hold kits burnt doors, he searched minutely from the heap, pieces of bones were recovered which was handed over to the I.O. for sending it for analysis for further procedure.

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    In the same way, Dr. D.M. Patel has stated that on 8/3/2002 he had gone to Malav Bhagol at the residence of Abdulbhai Vora, Rehanaben was also present, they found some flesh, some bones, burnt piece Sari, burnt piece of Petticoat which was seized and sent for analysis and from the residence of Nooriben ash was collected which was sent for analysis.

    As regarding this say Rehanaben has also submitted same aspect of collection of bones recovery burnt Sari, Petticoat and lump of flesh. Mr. D. M. Patel as well as Rehanaben has identified the Muddamal before the Court.

    (25) Now regarding aspects of findings of bones is concerned, bones are examined by Anatomist Dr. Chhaganbhai

    Jinvarshah Raibarkar, Anatomist of Karamsad Hospital examined as PW-7 at 7Exh.100. Dr. Raibarkar has

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    specifically stated that on 11/3/2002, he received Yadi from the Ode Medical Officer and also received a letter dated 10/4/2002 alongwith letter, he had received sample of box A & B. Bones which were received by him were examined sample-A consisted of broken & burnt bones and sample-B consisted of broken pieces of bones. He identified bones in box-B which were mandibular fossa and part external auditorymeatus of skull, piece of skull cap, part of zygomatic bone, Hamate bone of hand, piece of mandible, middle phalanx, terminal phalanx, piece of spine of cervical vertebra, navicular one of foot. As per the say of Dr.

    Raibarkar all the pieces were identified and appeared to be of human, as sex cannot be decided and whether belonging to some persons also cannot be determined, DNA facility was not available. Dr. Raibarkar was a expert in Anatomy from 1965 1967 report of Dr. Raibarkar is produced at Exh.101, whereas letter dated 11/3/2002 is produced at Exh.202. It is unfortunate as it appears from that letter

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    alongwith burnt bones piece, Sari and Chaniyo was also sent to the FSL, but nothing has come on record which shows in efficiency of I.O. From the cross examination of the Dr. Raibarkar, it is admitted that the size of the bones were not mentioned by the doctor, the possibility of

    extracting red and yellow bone marrow from the bones which are not burnt is answered that if bones are long than only it can be extracted, hence no such extraction is made. No doubt Dr. has admitted that as per anti human serum test, piece of bone precipitation test is done, whether

    bones are of human origin can certainly made out. It is also admitted Dr. Raibarkar that he has not conducted this test, however, the doctor has suggested DNA test. Considering evidence of Dr. Raibarkar, he is expert Anatomist, nothing has come on record in the cross examination that bones were of any animal. These bones which were identified by the Dr. Raibarkar were found at the instance of panchnama drawn at Exh.88, because piece of Sari and Petticoat was

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    also sent alongwith Yadi. As such bone which was found at the residence of Abdul Vora pieces were of human origin as per the say of Dr. Raibarkar which cannot be disbelieved. Naturally in small village of Ode nothing has come on record that the persons who are missing were having animals in their houses. No doubt there may be different method to analyze and to find that bones are of human origin, but Expert Dr. Raibarkar cannot be challenged merely on the gound that he has not resorted to alternative method.

    (26) As regarding the aspect of 3 persons death is concerned, one more important witness who has been examined at Exh.351 in this case is Dr. Bhupendrabharti Bhikhabharti Gosai, as per his say in 2002 he was serving in Vadodara Medical College in Anatomy Department. On 26/3/2002

    letter of Medical Officer, A. M. Patel serving in Community Health Centre(CHC), Ode were received on 27/7/2002

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    alongwith one cardboard and forwarding letter specimen seal was received. The Head of Deaprtment(HoD) gave him sealed box and forwarding letter of CHC, Ode along with specimen seal. Dr. Deepak Vyas, HoD wrote a letter to Khambholaj Police Station regarding the receipt of box which produced at Exh.352 . As per the letter, it was asked that whether bones sent are of human origin and of one or more person and also to describe sex and age and to get the bones DNA analysis from Baroda FSL and to sent the report. Moreover Dr. has also received dispatch

    note(Ravangi Nodh) which is produced at Exh.353, the specimen seal, sample and letter sent alongwith it is

    produced at Exh.354. The receipt of the Muddamal is produced at Exh.355. The Dr. has also received letter from C.P.I on 24/5/2002 sending the certificate of the Muddamal is produced at Exh.356. As per the say of Dr. Gosai on 30/5/2002, he alongwith his colleague Dr. Saroj Kumar inspected Muddamal sample Mark -A in which there was

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    plastic bag containing pieces of bones, (1) part of right and left complete burnt patella, (2) small pieces completely

    charred metatarsal bones, (3) small piece of trochlear part of completely burnt humerous, (4) small piece of completely burnt unidentified bones. As per the say of Dr. unidentified bones sent him were of human origin and age and sex cannot be determined. Moreover bones were of single or more than one person was also not determined. The Dr. had given the certificate in his hand writing on 30/5/2002 which is produced on record at Exh.357. As per the say of Dr. nobody had come to collect the Muddamal, as such in this case, Muddamal was destroyed as it appears in the deposition of panch witness at Exh.79. Dr. has also deposed that he has made some notes while giving certificate in his hand writing and he and Dr. Sarojkumar has signed on notes which are produced at Exh.358.

    (27) Now in the cross examination of Dr. by L.A. Mr. C. K. Patel,

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    nothing has come on record adverse which say that the bones are not received nor doctor has inspected bones and has given the certificate. Merely procedure of seal as well as regarding correspondence has been challenged, which does not shake the version of doctor regarding the inspection of bones.

    As in the cross examination by L.A. Mr. A H. Dhagat, it is admitted that FSL and Anatomy are two different subject to opine regarding bones, Anatomy is resorted. Dr. has

    admitted that he has opined by perception, he has not used any scientific chemical method though FSL is having facility of DNA finger printing and chemical analysis. It is admitted that if chemical analysis of ash of burnt bone is done, the bones are of human nature can be made out truly. The Dr. has advised for DNA test, but no facility was available with the doctor. Dr. has himself stated that on the basis of his expertise and visual perception the bone

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    are of human origin. As placed before the doctor that if he would had DNA facility, he would have opted for DNA test, Dr. has replied that DNA is not his subject, hence he has not called for DNA test. It is admitted fact that doctor has opined on the basis of his visual perception and presumption and his expertise.

    (28) Considering evidence of Dr. Gosai nothing adverse has come on record regarding his expertise which goes against him. He is an Expert Anatomist. He has opined on the basis of his broad expertise and visual perception, that the bones received by him were of human origin, then there is no reason to disbelieve the version of Expert Anatomist. No doubt, he has not opted for any chemical or scientific

    method as that does not come in his purview to do chemical analysis of the bones, he being expert of bones i.e. human Anatomist, he has given his opinion regarding human bones on the basis of his knowledge and expertise

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    and experience. As such though alternative method which must be in existence and the Dr. has not gone for that alternative method, as it was not in his purview the opinion given by the doctor Gosai cannot to be said to be a perfect opinion, this argument on behalf of the defence is not sustainable. As such evidence of Dr. Gosai on the point of bones are received by him of human origin is reliable, trustworthy and believable.

    (29) It is admitted facts that in this case that DNA of the deceased was not found out nor matched with any of the heirs of deceased. As regarding point of DNA analysis and DNA matching is concerned, Dr. Anilkumar Madhukant

    Maheta is examined at Exh.153. That on 28/5/2002, he received one sealed box one blood phial of one parcel-A in which there was one piece of cloth recovered from Ode Malav Bhagol which was identified as A-1. As A-2 burnt tissues and piece of bones and A-3 was ash found from

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    Noori Gafurbhais house and parcel-B was blood sample of Idrisbhai Abdulbhai Vora, DNA finger printing was done and in sample A-1, A-2 and A-3, no blood was found. Whereas in sample A-2 was completely burnt, no DNA was extracted, nor any DNA was extracted from sample A-3. DNA was extracted from sample-B blood of Idrisbhai. As there was no DNA extracted from any other DNA extracted from Idrisbhai blood was not able to be matched. As such, as per the say of doctor DNA was not extracted and so DNA was not matched.

    As per the say of Dr. Anilbhai Mehta on 20/7/2002, he has received two parcels from Ahmedabad FSL in which there were pieces of bones, identified as bones of deceased Kadarbhai and other sample containing 5 ml. blood of Iliyasbhai Ismailbhai Vora who was brother of deceased Kadarbhai. One part of both the samples was sent to Chandigadh CFSL for correct opinion. The report of

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    Chandigadh CFSL was received on 16/7/2003. As per the report of Chandhigadh CFSL piece of bones was of brother of Iliyasbhai Ismailbhai Vora was not possible to be of

    brother of Iliyasbhai Ismailbhai Vora. Report of Chandigadh CFSL is produced at Exh.157. The letter of receiving the Muddamal sample is produced at Exh.156. Report of DNA matching of Idrisbhai and bones sample of A-2 is produced at Exh.154 and the letter to CFSL Chandigadh sending sample of bones and blood phial of Iliyasbhai Ismailbhai is produced at Exh.155. A letter written by Dr.Maheta on 8/8/2003 with his report is produced at Exh.158. A letter of Dy. Director S.L. Vaya under which report at Exh.157 and 158 is produced produced at Exh.159.

    (30) The sample of blood of Iliyasbhai Ismailbhai Vora collected by Dr. Umaben Jadavbhai Pipliya who is examined at on 16/7/2002 Iliyasbhai

    Exh.150, she has stated that

    Ismilbhai Vora was sent with police Yadi on 17/7/2002

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    alongwith

    him

    Majidmiya Malek

    Muradmiya

    and him

    Safimiya for his

    Mahmadmiya

    accompanied

    identification. She has collected 5 CC of blood prepared DNA profile perform of Kadarbhai alonwith the signature of the witness Iliyasbhai Ismailbhai Vora. Yadi is produced at Exh.151. DNA profile performa is produced at Exh.152 and DNA matching procedure was done by Dr. Anilkumar Madhukant Maheta whose deposition is discussed earlier. (31) It is pertinent to note that in 2002 after constitution of SIT DNA finger printing procedure has been again resorted by SIT regarding which blood sample of Shahinbanu Yasinbhai Vora and deceased Kadarbhai Ismailbhai has been collected by Dr. Arvind Jethabhai Dalwadi, who is examined at Exh.145. He has stated in his deposition that on 7/7/2008 at 1.15 p.m.. He received a Yadi from SIT, Dy.S.P., Shri H. C. Pathak for collection of blood sample of Shahinbanu Yasinbhai Vora alongwith the prescribed form, two photographs of Shahinbanu alongwith Mahmad Hanif

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    Hasan Vora, Iqbal Abdulbhai Vora

    also came who

    identified Shahinbanu and as per the procedure he collected the blood of Shahinbanu and sealed the phial filled up the DNA profile performa. Yadi is sent produced at Exh.146, whereas DNA performa is produced at Exh.147.

    (32) Blood sample of Shahinbanu for DNA finger printing which was examined by Dr. Nikunj Narhari Brahmbhat alongwith the second part of sample bones which was sent to Chandigadh CFSL, alongwith report of CFSL Chandigadh. As per the test conducted by Brahmbhatt, it was found that Sahinbanu was not biological daughter of Kadarbhai Ismailbhai from whose bone DNA was extracted. The report was sent to the SIT which is produced at Exh.137.

    (33) From the evidence of FSL Officer, it appears from the bones of Aaiyeshaben, no DNA was extracted, which not matched with the blood of Idrisbhai. Whereas CFSL

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    Chandigadh report is concerned recovered bones of pieces of was not of sibling of Kadarbhai Ismailbhai Vora and at the same time in the year 2008 when blood sample of Shahinbanu is sent for DNA finger printing, though DNA is extracted from the Sahinbanu is not biological daughter of Kadarbhai. Whereas ash which was recovered from the

    house of Nooriben, no DNA was extracted. As such from the entire evidence the facts which emerges on record are that bones which are found at the time of panchnama which are sent to Anatomist inspection are of human origin which cannot be denied. But bones of Nuriben,

    Aaiyeshaben and Kadarbhai is not determined, as DNA is not turned positive. However, it goes without saying yet the case is of death of 3 persons, as all the 3 persons are not yet found out alive in any way, in any manner and in any place. Because, before the incident all those 3 persons were alive, they were seen by the witnesses that Aaiyeshben and Nooriben have entered into the house which was set on

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    fire by the mob. Bones are recovered from that place allegedly one person has been burnt to death, as per the prosecution case near the open chowk, where Jayeshbhais residence is situated. Even for the sake of argument, it is not a place, as per prosecution and if it is a place near Bismillah Masjid, near the Cabin of Abdulbhai and if bones are recovered from that place rather than the place at Exh.80 then also death of third person is proved to have taken place. It is an admitted fact that incident has occurred on 1/3/2002 at 1.30 p.m. to 1.45 p.m. Till today more than 10 years have been passed or till the date of evidence in the court 8 years had passed, no where has come on record that any person in the village have seen 3 alleged dead persons to be alive or moving in the village or any other place, they have been seen. So they are not in existence more than 7 years.

    On the other hand, it has come on record that heirs of

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    deceased persons have received their compensation of death not as missing persons, but as deceased person. PW-66 Ramanbhai Bavaji Parmar examined at Exh.432 has stated that in the year 2002 in riots affected person whose property was damaged and who had expired compensation was to be paid to the heirs of the deceased and to the injured persons also in Ode village. In Ode village Malav Bhagol 3 persons who were died Gafurbhai Vora, Abdul Kadar namely Nooriben Vora and

    Ismailbhai

    Aaiyeshaben Abdulbhai Vora. The amount of compensation was paid by cheque for the death; Nooribens amount of compensation was paid to Fakir Mahmmad Gafurbhai Vora, Abdul Ismail Kadars Vora amount of compensation was paid to Shahinben Abdul Kadar and Aaiyeshaben Abduls amount of compensation was paid to Idrisbhai Abdulbhai Vora and vouchers were signed which were produced at Exh.433.

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    In

    the

    cross-examination,

    it

    is

    admitted

    that

    no

    documentary evidence regarding their death

    has been

    produced. No documentary evidence regarding their injury and death in Ode Nagar Palika is produced. The entire proceedings were done by the Collector and Mamlatdar, Anand. In the cross-examination of the witness and from the entire evidence, nothing adverse come on record, which can be said to affect the deposition of the witness.

    (34) PW-67 Ashokbhai Tulsibhai Patel, Mamlatdar Anand Rural, who examined at Exh.437, he has also stated that in the year 2002 in communal riots, who were paid compensation, he has brought on record of the same. Yadi was sent

    regarding deceased by the Dy.S.P., Vabang Zamir. 27 persons list were examined. Whereas Executive Magistrate received list of 37 persons in the list of Mamlatdar Anand Rural, names of Abdulkadar Ismailbhai, Nooriben

    Gafurbhai, Aaiyeshaben Abdulbhai were shown as missing.

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    Whereas in the report of Dy.S.P., they were referred as missing at 25 to 27. The list of missing persons is produced at Exh.438. To ascertain the existence of the persons in Ode. Copy of ration card and electoral roll is also obtained at the relevant time which is produced at Exh.439 alongwith the main Yadi. On 22/10/2002, Dy. Mamlatdar issued an order to pay relief amount to the deceased and missing persons of communal riots in which at no.19 aid to Nooriben was to be given to his son Fakir Mahmmad Gafur. The said order is produced at Exh.40. On 22/11/2002 Dy. Mamlatdar Office issued an order alongwith the details to pay aid amount to deceased and missing persons of the communal riots in which is at no.5 aid Abdulkadar Ismail was paid to his daughter Shahinben as natural guardian Aminaben Ismailbhai at no.6. Aaiyeshabens aid was paid to Idrisbhai Abdulbhai Vora. Order is produced at Exh.441. The receipts of payment of amount to all the 3 persons heirs was signed which is produced at Exh.442, 443 and 444.

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    (35) In the cross examination of said witnesses, nothing has come on record which can be said to be adverse against the evidence of all the witnesses. It is admitted facts that no death certificate has been produced to ascertain the death in record It has been tried to brought on record through cross examination that whatever aid has been given by the Government is not ascertained as to given to the deceased or missing persons. The defence has tried to bring the case of 3 persons are missing and not death. But considering the evidence on record, no doubt in the case of mass communal riots where persons are burnt alive to death and the dead body is not recovered only bones are recovered. The defence has tried a lot to show that

    persons are not dead, but 3 persons are missing till today. But it is impossible to believe the say of defence considering the evidence on record. If naturally

    prosecution has proved case of missing persons is of dead

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    to various aspects by ascertainment of the bones by way of payment of cheque to the family of the deceased. When persons are missing for more than 7 years, they were not being heard since more than 7 years and where nobody has come forward during these years, that the 3 persons alleged to have been died are alive. Then as per Sec.108 of Indian Evidence Act, burden of proving that persons is

    alive who has not been heard for 7 years is shifted to person who affirms it. Section 108 States as under : Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him. If he had been alive, the purpose of proving that he is alive is shifted to the person who affirms it.

    Section 108 presumption of death will arise if a person is not heard for 7 years. This presumption extends no

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    further. In short the Sec.108 provides that the person is unheard for 7 years, there shall be presumption of death.

    There is nothing on record which can ascertain during these years after the lapse of 10 years, 3 persons who are not found or alive or were seen some way. As such it

    create no doubt in the mind of this Court that all the 3 persons who allegedly to be missing are dead.

    (36) Now next aspect which is to be considered that whether death of 3 persons is homicidal ? It is fact that 3 persons were found alive before the incident had occurred. As incident broke out from the same day, all 3 persons are missing. Bones of human origin which are found at the place of incident. From the panchnama at Exh.88 there are clothes and bones found. It is a place where houses were set on fire and so persons have died is an admitted fact on

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    record. Naturally question which is occurred is not a question which can be primary said to be clear incident of murder, as no dead bodies are recovered, only on the

    basis of bones 3 persons are found to be dead. Naturally 3 persons who are died have not died that of accident. No where in the entire case, there is claim of accidental fire or any accidental death of the deceased nor in the entire case there is claim for natural death of 3 persons, nor is there any claim for case that the persons have committed suicide during or after the incident. It is clear case in which 3

    persons have met their death and that death is due to fire, as houses were set on fire, they are burnt alive. And so, it is case of homicidal death which cannot be denied.

    (37) Now as regarding the main point, whether in this case dead body has not found it can be said that persons who have died have not met of homicidal death or it has not case of murder.

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    (38) As in the case of Mani Kumar Thapa V/s. State of Sikkim, reported in AIR 2002 SC 2920. Wherein it is held that in case of trial for murder, it is not absolutely necessary nor an essential ingredient to establish Corpus delicti. Referring to the case of Sevaka Perumal and Anr. V/s. State of Tamil Nadu, reported in AIR 1991 S.C. 1463. Honble Supreme Court in case of Mani Kumar Thapa has observed It is a well settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential

    ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There as a number of possibilities where a dead body could be disposed of without trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an

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    accused, in many

    accuse would manage to see that

    the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there would be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be trace.

    (39) In the case of Badshah and Ors. V/s. State of U.P., reported in 2008 AIR SCW 1359; wherein Hon'ble Supreme Court has held that Accused while taking away victim stating they would kill him Victim not seen alive since thereafter for last 27 years Inference of murder can be drawn even though Corpus Delicti has not been proved . It is referring the case of

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    Ramjee Rai and Ors. V/s. State of Bihar, reported in 2006(8) Scale 440, wherein it is said It is now a trite law that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In the absence of the dead body.. Referring the above judgement, it is observed in the case of Badshah In the event of murder of an abducted person, either by direct or presumptive evidence, an inference of murder can safely be drawn in respect whereof, it would not be necessary to prove the corpus delicti.

    (40)

    Relying upon the above judgements, in my opinion that herein this case though the dead body of 3 persons are not found that does not mean that the 3 persons have not died nor it can be said that their death is not homicidal death. On the basis of report of the Anatomist, 3 persons are found to be dead, not seen for more than 7 years, when death is not accidental, suicidal or natural, it is

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    homicidal death. As such, I decide issue no.1 in the Affirmative.

    POINT NO. 2 TO 11.


    As all the points are inter connected with each other, it is desirable to discuss all the points together in order to avoid multiplicity of the entire evidence and appreciation of law points mentioned in the evidence.

    (41) First and foremost, it is required to take note of the place of time of incident, topography and map of the place of incident. As per the case offence has occurred on 1/3/2002 at 13.30 to 13.45 hours. The complaint of which is filed on 5/3/2002 by the complainant before the CPI, Mr. K. R. Bhuva, after registration of complaint investigation was taken up by Mr. K.R. Bhuva. He went to the Umreth hospital recorded statements of the injured witnesses, passed the message of visitation to the higher officer, made

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    arrangement for FSL Officer visit, photography and videography. On 6/3/2002 in the early morning, he has drawn panchnama of the scene of incident in presence of FSL Officer. 300 grams of bones were recovered sealed and seized. Thereafter, he draw the panchnama of the entire vicinity, where the incident of rioting had broken out. Panchnama was drawn of the various places in the

    presence of the panch witnesses. Thereafter accused were arrested, interrogated for the weapons. Panchnama of the persons of the injured people was carried out. Various statements of witnesses were recorded from time to time. Thereafter on 8/3/2002 as per the say of complainant, panchnama was drawn where 2 people were alleged to have been burnt. Muddmal bones, piece of Sari, petticoat were recovered and sealed and seized. Thereafter again statement of witnesses were recorded, panchnama of burnt matador and rickshaw were also done and after doing all the procedure, charge-sheet was filed.

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    (42) After charge-sheet was filed by the Investigating Officer, as it is admitted fact that in all the post Godhra riots cases, writ was filed in the Honble Supreme Court and there from the post Godhra case in which one of the case is present case. SIT was constituted by the order of the Honble Apex Court and the further investigation was taken up by the SIT. On 11/4/2008, SIT, Investigating Officer, Dy.S.P., Shri H.C. Pathak took over the investigation of the case visited Ode village, recorded the statements of complainant and her father. On the basis of one application filed by the Aliji Ismail Vora that on 26/2/2008 before the Judicial Magistrate, First Class, Umreth. Investigation was carried out by the Dy. S.P., dewatering work of Malav step well and Malav well was done. From 13/52008 to 6/6/2008 search operation was made, various bones were recovered, panchnama was drawn of all the dewatering work carried out by the SIT. Statements of other witnesses were

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    recorded, preparation of map was done at the instance of SIT. After all the investigation of SIT, report was filed before the Honble Apex Court on 11/2/2009.

    (43) Considering above facts narrated in short regarding investigation. First and foremost aspect which is to be seen place of incident and time of incident. Date of incident is on 1/3/2002 at 1.30 p.m. to 1.45 p.m. at Malav Bhagol, Ode. The topography of the place of incident is to be seen. The Maintenance Surveyor, PW-22 Mr. Dineshchandra

    Thakorbhai Modi is examined at Exh.235. Unfortunately from the entire record as it appears that at the time of incident on 1/3/2002 till investigation with Mr. K.R. Bhuva, no map of scene of incident has been brought on record. As per the Maintenance Surveyor on 24/3/2002 Yadi of preparing the map of Ode village was seen by the witness which is at Exh.236. On 23/11/2009, SIT, Dy.S.P. again sent Yadi for preparing the map of the village Ode of Malav

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    Bhagol area. A Yadi is produced at Exh.237. The witness contacted the Police Officer, panchnama was sought for dated 6/3/2002 and other panchnama dated 8/3/2002 on the basis of the Yadi of original map of city survey, the Maintenance Surveyor prepared a map of Malav Bhagol area where unfortunate incident of this case occurred alongwith various descriptions and explanation. A map is produced at Exh.238.

    In the cross-examination it is mentioned by the witness that he has not seen Yadi Exh.236 till 2009 in his office has not attempted to find out original Yadi and the record pertaining to the Yadi. It is admitted that in map no where Masjid is mentioned nor the damages of shops have been identified nor entrance of the property bearing Survey nos. 374 to 383 and 1083 to 1088 and 1090 to 1099 has been shown in the map. It is also admitted that map Exh.238 is a map of city survey Gamtal. Rest of the facts pertaining to

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    the place of the properties are admitted by the witness. It is also admitted that survey no.1091 and 1094 there is a wall after survey no.1094 which is touching survey no.1086, and survey no.1087 it is an end of the street. It is also not known to the witness as to what is regarding property

    no.1099 as no explanation is shown. It is also admitted that 3 houses are made from 2 survey no.1098 and 1095. It is admitted that place in front of property no. 1101 As per explanation it is place where Kadarbhai was burnt. No entrance or gate has been shown for property no.1101. It is also admitted that there is flour mill in the front side of property no.1080 to 1082. It is also admitted that main gate of Shiv Sadan is situated near property bearing survey no.1079 and in record gate is not shown in survey no.1079. It is also admitted that on the eastern side of Shiv Sadan, there is Krishna Nivas bungalow which is not shown in the map. It is also admitted that properties bearing survey no.1098, 1095 are 2 ft. inside, then property bearing

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    survey no. 1101. It is denied that at the instance of SIT Officer, the map was prepared. It is admitted that he was informed regarding 3 persons burnt alive and to make a map of that place. It is also admitted that he has not shown any place which is mentioned in first paragraph at Exh.82. It is admitted that he knows today that incident of Kadarbhai had occurred near Bismilla Masjid, near Malav Bhagol. To locate the place of incident of Aaiyeshaben and Nooriben, he had taken help of panchnama at Exh.88. He has not contacted Faridkhan or any panch or Rehanaben. He has seen the place of Aaiyeshaben and Nooriben. Aaiyeshabens house no. 1095/A and Nooribens house no.1095/B. It is admitted that whatever explanation is

    mentioned in the map are according to panchnama. It is also admitted that place of Kadarbhai is shown in the map is not consistent with the panchnama. It is denied that he has not visited the place nor has made the map according to the place, and has prepared the map according to

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    Panchnama.

    (44) As considering the evidence of Maintenance Surveyor, unfortunately it is not to the mark which can be said to be a correct topography of the entire case of incident. Mr. K. R. Bhuva who had written the Yadi to prepare may of the place of incident in year 2002 has not cared, whether map was received by him before charge-sheet was filed. It is admitted that in year 2002 no map was prepared nor there is any record of map of the place of incident. SIT had taken care to bring out the map of the site of incident which was not found during 8 years in the record and on the basis of panchnama, map was drawn. No doubt the Maintenance Surveyor has not come out with all minute detailed of the factual aspect of the incident, but has covered up topography of the place of incident to some extent.

    (45) From the map at Exh.238 topography of the place of

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    incident can be made out. From Malav Bhagol to Bus stand road is situated. South to north there is main road going from Malav Bhagol to bus stand and by the side of the main road on the both sides there are properties situated. After the property bearing survey no.1083 main street which enter towards house, where deceased and victim were staying. Just opposite to the road and at the end of the street property no.1101 which is on the western side of the road in the street. On the northern side is iron gate of the property named Shiv Sadan. Just opposite side of property no.1101 is the place as alleged by the prosecution, where Kadarbhai was burnt alive. Just adjacent to the property no.1101 on the southern side is survey no.1098 and 1095, where Aaiyeshben and Nooriben have allegedly to have been died. Just adjacent to the place of Nooriben is one more house which is as per map is of Nur Mahmmad Rasulbhai and at that point of street there is a small wall. On the other side of the wall is also house of Abdulbhai,

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    Karimbhai and Altafbhai who are witnesses. It is pertinent to note that topography has been shown in the map which cannot be denied.

    (46) Moreover it is to be noted that as per the application of prosecution which was not objected by the other side vide Exh.451 and the order passed below that application. The court has inspected the site of incident on 12/11/2011 in the presence of advocates of both the sides and advocates for the victims and the witnesses and also witness were present and the memorandum to that effect was also prepared by the court and it was keep on record which is at Exh.452. So topography is according to the map at

    Exh.238 which cannot be denied which is also viewed by this court.

    (47) As after topography is discussed the evidence of the witnesses is to be appreciated. It is admitted fact that so

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    far as evidentiary value of the panchnama is concerned, it is well settled that panchnama is not being a conclusive evidence, but it can be read only as corroborative evidence of the panchas.

    PW- 1Bismillakhan Akbarkhan Malek is examined at Exh.79. As per the evidence, he was called as panch on 6/3/2002 in the early morning. He has deposed that at the place of Malav Bhagol, there was open space near the house of Abdulbhai, from there sample of ash and some pieces of bones were taken from heap and panchnama was drawn in which he and other panch Azimuddin Mayuddin has signed. No doubt Muddamal Article 1 and 2 seized as per panchnama are destroyed, as per the endorsement on the Muddamal receipt no.77/2009. As such Muddamal was not identified. In the cross-examination nothing has come on record which can adversely affect the veracity of the witness. Small minor discrepancy which does not affect the

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    episode of panchnama are brought on record. He has also stated that he is not knowning CPI, Mr. K. R. Bhuva by name or by face. On the place of panchnama no public person was seen, there was one photographer who was taking photograph. It is from the evidence of panch Bismillakhan Akabarkhan Malek nothing has adverse come on record. As stated above so far as his evidence is

    concerned, collected bones and ash from the out side of the house of Abdulbhai, but has not visited the the house of Abdulbhai. From the panchnama at Exh.80 collection of Muddamal Article 1 and 2 is clearly established that there is nothing to disbelieve the version of Panch witness.

    (48) The other Panch witness Akbarmiya Husenmiya Malek, PW-2, Exh.81 who is Panch witness for drawing of the panchnama of the scene of incident, where 8 to 10 houses were burnt. He has specifically stated that in his deposition that on 6/3/002, he was called by the police at 7.00 a.m. in

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    the morning near Malav Bhagol, Bismillah Masjid, there police person and one Harunbhai was standing, Harunbhai showed burnt houses first, then went to the place of Abdulbhai, where there was ash and bones were collected and the boxes were shown, burnt items were lying out side. Thereafter, they went to the other houses, near Masjid. Then also went house of Nur Mahmmad driver where utensils and mattresses were burnt and lying down. They also had gone to house of Maulvi. As such they visited 7 to 8 houses all in burnt condition and some of the house-hold items brought down from the house and were burnt on the road. The panchnama was drawn, number of houses and the occupiers' names were given by Harunbhai. The witness has admitted all the contents of the panchnama after reading the panchnama, he has signed and the panchnama is taken on record at Exh.82.

    In the cross examination of this witness who was not

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    resident of village Ode, residing at village Bhalej, was asked the ownership of different houses which he could not identify. It is but natural, he does not know the owner of the house which was burnt, because he was not local resident of village Ode. He has stated that by the side of Masjid there is a road going to the house of Abdulbhai that road is 10 to 12 fts. Broad. He had seen the godown by the side of Masjid, description of godown is written in

    panchnama. He has also stated that panchnama was drawn of all the burnt houses located at Malav Bhagol. He has not gone to Surivali Bhagol. It is also stated that he has not seen any bones at the time of panchnama. Now as from the evidence of panch witness is concerned, nothing adverse has been brought on record which falsify the say of panch witness, that he has not visited the site of incident and the place of panchnama.

    As per the say of panch witness some bones were collected

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    from the out side of the house of Abdulbhai in open place situated near his house. As per the case of defence in the entire case, defence has come with the story that place of Kadarbhai is not the place which the prosecution has shown to be i.e. in front of house of Jayeshbhai, but it is near the corner of Masjid, where Cabin of Abdulbhai was situated. Now appreciating this aspect, in my opinion that on perusing of panchnamas at Exh.80 and 82. No where it has come on record that there was a Cabin situated on the road near corner of Masjid. In the panchnama, it has come that place, where 300 gms of bones were collected is an open space, near the godown's house of Abdulbhai. Abdulbhai was having godown has not come on record by way of panchnama. Perusing panchnama at Exh.80, it is Malav Bhagol near Masjid adjacent to the wall of Abdulbhai godown's house. No where in the panchnama it is mentioned that the place was a wooden Cabin or it was on the corner of Masjid. But it is clear mentioned that 300

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    grms. of bones are collected from the open place by 15 ft. X 20 ft. area. Now in support of this say that the place 300 grms bones was taken is the place out side Jayeshbhai's house near Abdulbhai's residence, which must be same house used as godown to keep his spares and other items of stoves repairing. At Exh.82 the pachnama is placed in which it is clearly mentioned that previously before the drawing of panchnama Exh.82. The place which Harunbhai has shown is Malav Bhagol near Masjid adjacent to the godown house of Abdulbhai Stove Repairing Vala, which is 15 ft. in length and breadth. There are stoves place on the ground, there are small boxes, matches, stove primus bati and other small items scattered in burnt condition. And from that place also at the time of drawing of panchnama at Exh.80 bones were recovered on the western side of the place, it is the place where bones are recovered residence of Manibhai Ishvarbhai who is residing is

    facing

    eastern side. And in that house in the chowk there are two

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    residential houses on the left side house no.841 where Babubhai Motibhai Patel is staying and on the other side house no. 842 where Jayeshbhai Manibhai Patel is staying. Just on the northern side of the place where bones are found is a gate of property owned to Mahendrabhai Ambalal Patel. Now if this aspect of panchnama is believed which is on record, it become apparent and clear that as per the case of witness and prosecution place of Kadarbhai is not as per the case of defence. But it is clear, it is the place just out side house of Jayeshbhai. Moreover, if theory of defence is believed for the sake of argument that the bones were found from near Cabin of Abdulbhai which is suggested on the corner of the road of Masjid, then just adjacent to that there would not have been any house, but panchnama would have stated after leaving road, which is at least 30 to 35 ft broad, the other houses are situated. But from the panchnama itself house facing eastern side is shown. Whereas situation would have been different, if

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    defence theory is accepted. Moreover, if it would have been place as per the defence there would have no question of stones lying on the floor , but Cabin was near road on the corner of Masjid. So clearly it has been established by way of panchnama at Exh.82, which cannot be denied that the bones collected at the time of first panchnama at Exh.80 are collected from near house of Abdulbhai on the eastern side of Jayeshbhai's residence open space. Hence panchnama at Exh.80 and 82 are very clear on the point the first collection of bone which are alleged to have been of Kadarbhai from near the house of Abdulbhai and not near the corner of Masjid. Hence panchnamas at Exh.80 and 82 are well believable and reliable witness. and are corroborating the say of the panch

    (49) At Exh.85 panch Mustufabhai Umarbhai Vora PW-3 has been examined, he was panch for drawing the panchnama

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    of injured persons. He has stated in his evidence that on 6/3/2002 he had gone to Umreth hospital called by the Police for panchnama. He hadgone to the male ward where 5 persons were admitted. There was one aged person,

    bandage on his hand and he was given drip and his both hands were burnt. He had also burnt injuries on his nose and foot. He has stated that there were also 4 young persons aged in between 20 to 25 out which 2 persons were having same name Firoz. He does not know the name of other 2 persons. There was blister on the hand of Firoz Kapadwanjwala and also his thigh, elbow and nose were burnt and Firoz Matarwala was also burnt and other 2 persons were also burnt. Injury of each person were recorded in the panchnama which was signed by him. It is produced at Exh.86 which was signed after reading and found out it is to be correct.

    (50) In the cross examination he has admitted that he has no

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    information as to when the injured person were admitted. He has also stated that he has no knowledge as to how the persons were injured. From the entire evidence of the

    panch witness nothing has come on record to challenge reliability of the witness. As such panch witness of the injury of the injured person cannot be doubted panchnama at Exh.86 is piece of evidence corroborating the evidence of panch witness.

    (51) PW-4 panch witness Faridkhan Jabarukhan Pathan at Exh.87, as panch witness was called by police on 8/3/2002 at about 6.00 p.m. he was called at Malav Bhagol at that time Mr. K.R. Bhuva and other Police and second Alimiya Andumiya and witness Rehanaben was present. He was told regarding drawing of panchnama of place, where two women were bunt alive, the said house no.839 which was belonging to Aaiyeshaben. In presence of FSL Officer with the help of iron rod FSL Officer found out some pieces of bone

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    weighed 200 grms. and there was one almond colour piece of Sari with flower design which was burnt and there was one patticoat with read colour border. All these pieces have been identified by Rehanaben as piece of clothes of Aayeshabanu. Muddamal bones were placed in box and signed and sealed and panch slip was kept in the box. Piece of Sari and petticoat was also kept in plastic bag signature and seal was affixed and all Muddamal was sealed. Thereafter they went to house of Nooriben which was house no. 840/01, where he came to know that Nooriben was also burnt alive, nothing except ash was found which was collected and packed. Muddamal Article 3 to 7 were seized by the police. No doubt panch slip in the Muddamal Article No.3, 4 and 5 were decomposed was not in a

    position to read. The panchnama was completed at 8.00 p.m. which was signed by both the panch witnesses, which is produced at Exh.88.

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    In the cross examination, he has been cross-examined at length pertaining to the cross-examination it is mainly regarding situation and location of different house. Panch witness is resident of village Sureli and since last 25 to 30 years, he is member of Taluka Panchayat. He admitted that he was helping the persons in the relief camp which was at village Sureli. He has stated that 800 to 1000 people of Ode were kept in Surei relief camp. He has further stated that relief camp was started out of collection from the people of Sureli village. It is admitted that during communal riots in Ode as he got the news of Pirubhai, he and other leaders of Sureli with the help of Dy.S.P. Vabang Jamir brought the Muslims people of Ode to Sureli in Tempo. He knows that on Friday communal riots broke out in village Ode. He also know that on Friday afternoon one Hindu person died due to police firing. He know Rehanaben and her father. He has admitted that when police came for panchnama, he and Rehanaben had gone from Sureli to Ode. He does not know

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    the geographical position of Rehanaben's residence. At the time of panchnama police persons, 2 panch witnesses, FSL Officer were present. He does not know topography of Surivali Bhagol to Malav Bhagol. It is also admitted that police and FSL Officer had collected the ash and sample of dust. It is denied that in relief camp there was police Bandobast round the clock. He does not know the facts regarding the complaint of Rehanaben, merely he knows that 3 persons were died in the case of Rehanaben. It is also admitted that there was big lump of flesh, some pieces of bones which was received by him in one Potli, which was taken to graveyard where last rites were done. Moreover, he has been asked regarding topography of house no. 839 and 840/1 at the time of panchnama of Aayeshaben and Nooriben. He has not received any information regarding Kadarbhai. As regarding the sealing and collection of sample is concerned, he has supported the case of the prosecution in cross examination. It is also come on record

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    in cross-examination that Rehanaben had tried to give the complaint of incident of Aayeshaben and Nooriben, but police has not recorded the complaint. It is denied that he has taken the injured to the Umreth hospital. It is denied that as he is a leading personality of village, he is helping the complainant.

    As regarding the evidence of Faridkhan is concerned, he being a Member of Taluka Panchayat and though he may be leading personality, it is not come on record that to help the case of complainant, he has come before the Court. Nothing has come adverse on record that whatever panchnama has been done whatever is stated by Faridkhan is false or against the prosecution version. As such there is no evidence come on record in the cross examination to doubt the veracity and reliability of witness Faridkhan nor anything can be said to be against the panchnama which is corroborated by the deposition of Faridkhan.

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    (52) PW-5 Firozbhai Rasulbhai Vora is examined at Exh.89, he was called at Bazarsar pond at 4.00 p.m. on 15/3/2002 where one Matador was found in burnt condition which belongs to Sirajbhai which was handed over to the Sirajbhai. By the side of Matador one rickshaw was also lying turned condition which was handed over to Altafbhai regarding which panchnama was drawn and he signed on the panchnama which is at Exh.90.

    In the cross-examination of the witness, nothing adverse has come on record as to shake the veracity of the witness for drawing of the panchnama. As such panchnama Exh.90 is corroborated evidence of panch witness Firozbhai Rasulbhai.

    (53) As after investigation of Mr. K.R. Bhuva and other drawing of panchnama by Mr. Bhuva and filing of the charge-sheet

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    as discussed above, the case was investigated by the SIT, Dy.S.P., Mr. H.C. Pathak has done work of dewatering of Malav well and Sikotar step well(Vav).

    As regarding which PW-18 Prafulbhai Vamanbhai Patel, Executive Engineer, Irrigation Department is examined at Exh.163. He is an Executive Engineer serving in Irrigation Department. In the year 2008, SIT had requested Irrigation Secretary regarding dewatering to be done in Ode and on the basis of that letter Chief Engineer was instructed to carry out dewatering work through Executive Engineer. The copy of the letter of Chief Engineer is produced at Exh.164. On the basis of letter from 13/5/2008 till 27/5/2008 the work of dewatering of Malav well and Sikotar step well(Vav) was done and interim report was also prepared. Thereafter on 30/5/2008 using Hitachi, excavator, JCB

    machine dewatering work was done till 6/6/2008 and the report was also sent, which is produced at Exh.165. From

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    6/6/08 to 23/7/2008 again dewatering

    of step well was divers were

    done through submerceble pump and also

    used. Work of dewatering was taken up at difference stage on 19/10/2008 and 21/10/2008 and report was also filed by the divers. That report was sent with the forwarding letter by Department to the Superintendent Engineer which is produced at Exh.166.

    Secondly PW-19 panch witness Maheshbhai Vitthalbhai Patel, Work Charge Clerk in Irrigation Department has also been examined at Exh.173. From 13/5/2008 till 16/5/2008 and on 24/7/2008 and there after on 21/10/2008

    dewatering of Sikotar step well was done. Panchnama of various days are produced at Exhts. 174, 175, 176 and 177 during 13/5/2008 till 16/5/2008, no bone or any human remains were found. On 24/7/2008 also nothing was found, panchnama was drawn at Exh.178. On 21/10/2008 with the help of divers, Monitors and Cameras some mud and other

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    filthy garbage was taken out from the well (Vav) and one bone was recovered. Bone was primarily examined by Medical Officer, Ode which was not of human origin. The bone was sealed, panchnama was drawn which is at Exh.179. On 15/5/2008 it has been stated that on Malav well also dewatering work was done, nothing was found out, panchnama was drawn which is at Exh.180. It is also in cross examination, it is admitted that all the proceedings were covered by photography and videography. From the evidence of Maheshbhai Vitthalbhai Patel, nothing comes on record which is helpful to the prosecution, regarding the work carried out by the SIT.

    (54) As per the evidence of PW-20 Virendrakumar Pyarelal Sagar at Exh.180, who serving in City Survey Office in Umreth. On 17/5/2008, he was called for as panch and 2 bottles of water of well were collected and Control sample of water of Nagar Palika was also collected. Panchnama was drawn

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    on 17/5/2008 regarding collection of water from Malav well and Nagar Palika tap at Exh.182. Thereafter from

    18/5/2008 to 23/5/2008 dewatering of Malav well was done, but nothing was recovered from the well during those days. However, panchnama was drawn which is produced at Exh.183 to 186.

    On 24/5/2008 one bone was recovered, no sure opinion was given by the doctor who was present there. Moreover one symbol of moon and star was also found which was seized, panchnama was drawn which is at Exh.189. Whereas panch slip is produced at Exh.187 and 188. On 25/5/2008 dewatering work was done, but nothing relevant was found from the garbage, panchnama was drawn which is at Exh.190 to 192.

    On 30/5/2008 during dewatering of Malav well one skull bone was found which was seized by way of panchnama

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    and panch slip was also affixed which is at Exh.193 and 194. On 31/5/2008 again dewatering was done and 13 bones were found and as per the opinion of Medical Officer the bones wre of non-human origin. Panchnama was drawn which is at Exh.195. Panch slip is at Exh.196.

    On 1/6/2008, 30 bones were found which were seized and opined as of non-human origin. The bones were seized, panchnama was drawn which is at Exh.197. Whereas on 2/6/2008 again dewatering was done and 10 different bones were recovered which was opined that of nonhuman origin. Panchnama was drawn, panch slip was affixed which is at Exh.198 and 199.

    On 3/6/2008 12 different bones were recovered one green colour chadar was also found, bones were not of human origin as per opinion given by the Medical Officer. Muddamal was seized, panchnama was drawn which is at

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    Exh.200 and panch slip is at Exh.201. On 4/6/2008 again dewatering was done 2 bones were found which was of non-human origin, which is opined by the Medical Officer. Panchnama was drawn, panch slip was also affixed, which is at Exh. 202 and 203 respectively. On 5/6/2008 again dewatering was done of Malav well 15 different bones were recovered which was of non-human origin, which opinion given by Medical Officer. Panchnama was drawn, which is at Exh.204.

    On 6/6/2008 again panch was called again dewatering of Malav well 5 different bone were recovered, which was opined by the Medical Officer that of not human origin. Panchnama was drawn which is at Exh.205.

    From the cross examination of witness nothing adverse has come on record. At the same time, from the deposition of witnesses it is clear that nothing helpful to the prosecution

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    has come on record though bones are recovered. Medical Officer has opined regarding bones of non-human origin.

    (55) One Husenmiya Abbasmiya PW-56 is examined at Exh.308, he is a labour person who was engaged with the work of dewatering well for 5 to 6 days. He was gone for

    dewatering, he found from the well one cloth of Dargah and bones were recovered. There were other labourer persons also in the work of dewatering and SIT has recorded his statement.

    (56) As regarding bones which are recovered from the Malav well is concerned, primarily they were identified by doctors who were present on the site as and when recovery of articles were made. Dr. Alok Rameshwar Prasad Meena PW-11 at Exh.111 and Dr. Sanjay Jivabhai Chauhan PW-11 at Exh.120 were present at the time of dewatering of the well. As per the say of Dr. Alok Meena bones recovered on

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    30/5/2008 was primarily opined as bones of animal and it was recommended to be sent to Anatomy Department. The report was also prepared on 30/5/2008. The 13 bones which were recovered primarily were opined of animal, report of which is also prepared at Exh.114. On 2/6/2008 20 bones which were recovered from Malav well were found to be animal bones. As per his primary examination report at Exh.115 and 116. On 3/6/2008 12 bones which were recovered were opined to be of animal origin, and the report was made which is at Exh.117. On 5/6/2008 15 bones were found which were that of animal origin and report thereof filed at Exh.118. On 21/10/08 bone measuring 14.5 cm. was recovered which was not of

    human origin as opined by the doctor, report was given at Exh.119.

    As per the say of Dr. Sanjay Jivabhai Chauhan on 6/6/2008 5 bones were recovered from Malav well. He was called for

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    examining the bones. The bones were not of human origin, report was given at Exh.120. Both the witnesses have

    suggested for Anatomy examination of the bones.

    (57) Anatomist, Dr. Pankaj Haridas Barai PW-12 is examined at Exh.122. He received various bones for examination as Anatomist 4 panel doctors have examined the bones. As per the report of SIT and as per report of all the 4 doctors, the bones which were received were not of human origin. It was asked by the SIT as to what temperature 4 bones were charred and converted in ash. As per the say of the doctor, it is converted into ash at 1000 centigrade after 1 hour. Reference to this aspect is produced at Exh.126. On 21/10/2008 Dr. Barai as per the letter of SIT one bone measuring 14.5 cm. long was received. As per the say of doctor, whether the bone of human origin was not ascertained for that he has suggested for DNA test. The report of that aspect is produced at Exh.128.

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    (58) PW-14 Dr.Nikunj Narhari Brahmbhatt, DNA Expert on this aspect is examined 133. As per his say on 24/7/2008, he has received 79 bones, total 9 articles found during dewatering of Malav well from 24/5/2008 to 6/6/2008. He and his colleagues Tejalben Shah performed DNA finger printing on the bones But no DNA extraction was made possible as may be the bones were not of human origin. Report was prepared regarding this aspect, which is produced at Exh.141.

    On 1/11/2008 one bone measuring 14.5 cm. length was also received for DNA finger printing it was done by Tejalben Shah, but no human blood was found from that bones. As such report was given by Tejalben Shah is produced at Exh.143. FSL Yadi and dispatch note is produced at Exh.144 and receipt of Muddamal received is produced at Exh.144A.

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    (59) At the time of dewatering of Malav well and Sikotar step well, FSL Officer Dr. Suresh Vitthaldas Sitpuria PW-13 at Exh.131 was present. He supported the case of other panch witnesses. As well nothing as Executive Engineer, to the Irrigation

    Department,

    favourable

    prosecution

    regarding any human bones recovered from dewatering has come on record in his evidence. But regarding process he has supported the case of prosecution.

    (60) As per the proceedings of the SIT is concerned, it is clearly on record that dewatering, as per application of Aliji Ismail was done, who had applied in the Court of Judicial Magistrate, First Class, Umreth was done between

    13/5/2008 to 6/6/2008, bones were recovered, but not of human origin. All these bones were sent to the Anatomy Department. That the Yadi of receiving the Muddamal is produced on record. All these bones were decided for the

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    purpose of origin. All the bones were not of human origin. Water sample of well and step well also collected, but

    nothing has come out favourable to the prosecution. All the panchnamas and correspondence are produced at Exh.113 to 135. Whereas opinion of bones and DNA reports are produced on record. Hence evidence of above proceedings pertaining to the proceedings adopted by the SIT, nothing has been brought on record, which is favourable to the prosecution. All the proceedings are done, dewatering of Malav well and Sikotar step well is carried out. SIT has tried its level best to bring out the real facts and other materials which was not found at the earlier investigation, which were alleged to have been destroyed, but nothing has been favourable to the prosecution in this aspects.

    (61) Now before entering into the appreciation of evidence on record celebrated principles in regard to the appreciation

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    of evidence should be taken into consideration.

    The human mind is an imperfect instrument

    which in

    attempting to grasp facts, unconsciously twists and turns them often.

    A witness cannot be expected to possess a photographic memory and to recall the details of an incident. The human is not screen of the video tape. If the witness is overtake witness of the criminal cases are often overtaken by event, when the incident happens without anticipation and by the way of surprise.

    There is no rules of human behaviour and action different witnesses under different situations whereas some speak speechless, some start wailing, some runs away and some retaliate with courage, conviction and belief that the wrong to be remedy.

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    The cannot be any set pattern of uniform rule of human reaction and to discard a piece evidence on the ground of reaction not falling in set pattern is unproductive and pedantic exercise.

    Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and

    circumstances of each case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some shout for help. Others run away to keep themselves to remain safe. As there is no set rules of natural reaction. No evidence of any witness can be discarded on the ground of reaction in a particular

    manner. To discard such an evidence is unrealistic and

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    unimaginative.

    It should be bourne in mind that the set up as a circumstances in which the crime is committed. The quality of evidence, the nature and temperament of witnesses, the level of the understanding, power of perception and probability in ordinary course of nature about the act at the time of occurrence is different for different witnesses. The endeavour must be to find out the truth from the record.

    At the same time it must not be forgotten that there can not be a prosecution case with cast-iron perfection in all respects and the reason being that the perfection to that degree in ordinary course of human life is an utopian thought.

    However and nevertheless, obligation lies upon the Court

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    to analyze, shift an assess the evidence on record, with reference to trustworthiness and truthfulness of the prosecution case, by dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the evidence without being obsessed by the air of total suspicion about the case of prosecution. What is to be insisted upon is simplicitor proof emanating from the circumstances of the case and a ring of truth. The contradictions and infirmities might have been point out in the prosecution case must be assessed at the yardsticks of probabilities of the existence of the fact or not. Unless infirmities and contradictions are of such a nature as to undermine the substratum of the evidence and found to the printed the core of prosecution case, over emphasis may not be applied to such contradictions and infirmities.

    Normal discrepancies in evidence are those which are due to normal errors of observation, normal error of memory

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    due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful may be, material discrepancies are normal and expected of the normal person. Court has to label the category to which a discrepancy may be categorized. While normal

    discrepancies do not corrode the credibility of a party's case, material discrepancies do so.

    A person has, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is however, no absolute standard. What degree of probability amounts to proof in a exercise in each case.

    Doubts, would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any

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    favourite other than truth. To constitute the reasonable doubt, it must be free from an emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lace of it, as opposed to mere vague apprehension. A reasonable doubt is not an imaginary, trivial or a merely possible doub; but a fair doubt based upon reason and common sense and it must grow out of the evidence in the case.

    The proof beyond reasonable doubt is a mere guideline and not fetish. The concepts of probability, and the degree of it, cannot obviously be expressed in terms of units to be

    mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic

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    probability

    must, in the last analysis, rest on a robust

    common sense and ultimately, on the trained intuitions of the judge. Where the protection given by the criminal

    process to the accused persons is not to be eroded, at the same time, the uninformed legitimization of trivialities would make a mockery of administration of criminal justice.

    Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.

    A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that guilty man does not escape. Both are public duties.

    In the criminal case, court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way.

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    The

    broad

    features

    of

    the

    prosecution

    case,

    the

    probabilities and normal course of human conduct of a prudent person are some of the factors which are always kept in mind while deciding in the merit of the case.

    Exaggerated story put up by the prosecution would not wash away the entire incident, which has been proved by the witnesses who were present on the spot. The incident might have commenced somewhat in different manner but the fact of the commission of the offence, when proved by the witnesses, the prosecution's case cannot be thrown out only of the basis that prosecution has put inflated version of the incident.

    (62) The prosecution in regard to appreciation of evidence has relied upon the following citations.

    (i)

    Jayatilal Kuberdas Sharma V/s. State of Gujarat,

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    reported in 2006(3) GLH 253. Cast iron perfection : A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A jugde also presides to see that guilty man does not escape. Both are public duties. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than an innocent. Letting guilty escape is not doing justice according to law. The proof beyond reasonable doubt is mere guide-line and not fetish. Reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense.

    There cannot be a prosecution case with a cast-iron perfection in all respects and reason being that the perfection to that degree in ordinary course of human life is an utopian thought.

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    (ii)

    Allarakha K. Mansuri V/s. State of Gujarat, reported in AIR 2002 SC 1051. Miscarriage : A miscarriage of justice which may arise from the acquittal of guilty is not less than from the conviction of an innocent.

    (iii)

    Koli Bhopa Premji V/s. State of Gujarat, reported in 2004(1) GLR 592. Memory Reactions: The human mind is an imperfect instrument which in attempting to grasp facts,

    unconsciously twists, and turns them often. A witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on a mental screen. It so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which often has an element of surprise. The mental faculties therefore, cannot be expected to be attuned to absorb the details.

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    Different witnesses react differently under different situations, whereas some become speechless, some start wailing, while some others run away from the scene and yet, there are some who may forward with courage, conviction and belief that the wrong should be remedied.

    There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern, is unproductive and a pedantic exercise.

    (iv)

    Hardeep V/s. State of Haryana and Anr., reported in AIR 2002 SC 3018. Evaluation: In the criminal cases, the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and normal course of human

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    conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. (v) Kulesh Mondal V/s. State of West Bengal, reported in AIR 2007 SC 328. Evidence as a whole : The evidence cannot be read in piecemeal and defence cannot take advantage of reading some one or two portions here and there from evidence of witness. The evidence is required to be read as a whole and thereafter, it is required to be weighed and appraised.

    Contradictions: Minor contradictions cannot affect the prosecution case. Only those contradictions that lead to inference of impossibility or improbability of prosecution version can have adverse impact.

    Discrepancies: Normal discrepancies in evidence are those which are due to normal errors of observation,

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    normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be.

    Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label to the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.

    (vi)

    Gura Singh V/s. State of Rajasthan, reported in AIR 2001 S.C. 330. Partly Reliable: Even when major portion of evidence of a witness is found unreliable, the remaining part of evidence, if inspired confidence and sufficient to prove the guilt of accused, the conviction can be based thereon.

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    Hostile Witness: It is a misconceived notion that merely because a witness is declared hostile, his entire evidence should be excluded or rendered unworthy of consideration. In appropriate cases, the Court can rely upon the part of testimony of such witness, if that part of the deposition is found to be creditworthy.

    (vii) Mahendra @ Malio Bachubhai V/s. State of Gujarat, reported in 2007(1) GLR 39. Parrot-like: Consistent version of two eye witnesses

    corroborating each other would not be weakened nor would it be rendered doubtful, on ground of alleged parrot-like or totured version, when the deposition is otherwise found truthful, reliable and trustworthy.

    (viii) Ram Anup Singh and Ors. V/s. State of Bihar, reported in AIR 2002 S.C. 3006. Tutored witness: The case of prosecution cannot be

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    disbelieved merely

    because the testimony of the eye

    witnesses is consistent by raising a suspicion that they may be got up or tutored witness. (ix) Kailsh Raghuvir V/s. State, reported in 2007(3) GLR 2530. Injured witness: As a matter of fact, the evidence of injured person lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant. Evidence of injured witness ought to be accepted unless, grave circumstances warrant that such evidence be discarded.

    (x)

    Lilgar Kamjibhai Pargi & Anr. V/s. State of Gujarat, reported in 2009(3) GLH 195. Eye-witness: The evidence of eye-witnesses cannot be brushed aside lightly on imaginary or flimsy ground. Ordinarily, an eye-witness is worthy of credence, unless it is established that the witness has reason to fabricate the case

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    against the accused and that the facts from other evidence on record established that it would not be just and proper to rely upon such witness. (xi) Hikha Jiva Gujaria V/s. State, reported in 2009(1) GLR 844. Interested witness : There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused.

    (xii) Rama Shish Rai V/s. Jagdish Singh, reported in AIR 2005 S.C. 335. Enmity: It is well settled principle of law that enmity is a double edged weapon. It can be a ground for false implication and a ground for assault. Therefore, a duty is cast on the Court to examine the testimony of inimical witnesses with due caution and diligence.

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    (xiii) Krishna Mochi and Ors. V/s. State of Bihar, reported in AIR 2002 S.C. 1965(1). Appreciation of evidence Evidence of witness Deficient regarding some accused But sufficient to prove guilt of other Conviction can be based on it Falsus in uno falsus in omnibus Has no application is India.

    Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be

    maintained. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been bound to be deficient to prove guilt to prove

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    guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liar. All that the

    maxim amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. The doctrine is dangerous one specially in India for if a whole body of the

    testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-shop.

    Appreciation of evidence Discrepancies in evidence

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    Normal and material discrepancies Difference.

    Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of normal person. Courts have to label the category to which discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies so.

    (xiv) Mohmad Salim I. Qureshi V/s. State, reported in2006(3) GLR 2385. Solitary witness: There is bar in basing conviction on the testimony of solitary witness, so long as the said witness

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    is reliable and trustworthy. Number of witness: Law does not require any particular number of witnesses to prove a fact. Public prosecutor need not require examine all witnesses cited by police in the charge-sheet.

    (xv) Binay Kumar Sing V/s. State of Bihar, reported in AIR 1997 SC 322. Number of witnesses Identification of accused Even a testimony of single witness is sufficient However is case large size of unlawful assembly, the Court can insist on at least two reliable witnesses for

    identification of accused.

    (xvi) Chandra Shekhar Bind and Ors. V/s. State of Bihar, reported in AIR 2001 S.C 4024. Large number of accused participated in incident Two witness theory can be adopted Benefit of doubt

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    can be given to accused who had not been identified by more than one witness.

    (xvii)Masalti V/s. The State of U.P., reported in AIR 1965 S.C. 2002. Evidence - Appreciation Criminal Trial Partisan witnesses. There is no doubt that when a criminal has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in

    weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not

    evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But, it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that evidence of partisan or interested witnesses.

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    Often enough, where factions prevail in villagers and murders are committed as a result of that enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fat rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted correct.

    Number of witnesses.

    It is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would

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    not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three more witnesses who give a consistent account of the incident. In a case, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. It is no doubt, the quality of the evidence that matters and not the number of witnesses who give evidence. But sometimes it is useful to adopt a mechanical test.

    (63) The following authorities are relied upon by the L.A. on behalf of the complainant and witnesses. (i) Dani Singh and Ors. V/s. State of Bihar, reported in AIR 2004 SC 4570.

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    Appreciation of evidence Murder Witnesses related of friendly with deceased Evidence of cannot be

    discarded on that ground Court is required to carefully scrutinize evidence and find out if there is scope for taking view about false implication. (ii) Kishori V/s. State of Delhi, reported in AIR 1999 SC 382. Murder Riots Accused persons members of mob alleged to have attacked and killed three deceased persons belonging to particular community No

    discrepancy in testimony of eye witnesses about death of deceased and in identifying presence of accused persons in mob Details as to role attributed to

    several persons in mob or narration as to succession of events taking place, not relevant.

    (iii)

    State of U.P. V/s. Dan Singh & Ors., reported in AIR 1997 S.C. 1654. Testimony of eye witnesses cannot be rejected only

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    because of some inconsequential contradiction or exaggeration.

    When people are killed during a riot, there may be a possibility of the incident being exaggerated or some innocent persons being named as being part of the assailants party. This may happen wittingly or

    unwitting. But just because

    there may be some

    inconsequential contradictions or exaggeration in the testimony of the eye witnesses that should not be a ground to reject the evidence in its entirety in the cases of riots where there are large number of assailants and number of witnesses, it is but natural that the testimony of the witnesses may not be identified. What has to be seen is whether the basic features of the occurrence have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot, viz the injuries

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    sustained by the victims and the number of people who are attacked and killed.

    (iv) Paresh Kalyandas Bhavsar V/s. Sadiq

    Yakubbhai

    Jamadar & Ors., reported in AIR 1993 S.C. 1544. Interested witness Credibility Interestedness Not a ground to reject evidence Moreso when witness is injured witness.

    Mere interestedness is not a ground to reject the evidence of the eye witnesses particularly those who were injured. Firstly their presence during the

    occurrence cannot be doubted. Secondly the injured witnesses would not be the last persons to leave out the real culprits and implicate others falsely. However, it becomes necessary to scrutinize their evidence with great care and caution. Normally in a case of this

    nature in the light of the medical evidence, their

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    previous statements, the earliest version put forward and other circumstances like the investigation being defective and also the effect of omissions or

    discrepancies.

    (v)

    Dana Yadav alias Dahu and Ors. V/s. State of Bihar, reported in AIR 2002 S.C. 3325. Test identification parade Accused well known to prosecution witnesses from before Holding of identification parade would be waste of public time.

    (vi) Baladin and Ors. V/s. State of Uttar Pradesh, reported in AIR 1956 S.C. 181. Statement to police during investigation Value of Police record unreliable Effect.

    Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in Court with

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    reference to the statements said to have been made by them before the investigating police officer.

    Statements made by prosecution witness before the investigating police officer being the earliest

    statements made by the with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in Court, with particular reference to those statements which happen to be at variance with their earlier statements; but the statements made during police investigation are not substantive evidence.

    Hence the record made by a police investigating officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or

    unreliable on the ground that it was deliberately perfunctory or dishonest, it loses much of it value and

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    the Court in judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused.

    (vii) State of Karnataka V/s. Yarappa Ready, reported in AIR 2000 S.C. 185. Murder Evidence of eye witness Criminal Courts should not expect set reaction from eye witness on seeing incident like murder.

    Where in a murder trial, the evidence of eye witness was disbelieved by High Court on ground that on seeing the incident she did not shout or cry but remained calm, it would not be proper. Criminal

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    Courts should not expect a see reaction from any eye witness on seeing an incident like murder. If five persons witness one incident there could be five different types of reaction from each of them. It is neither a tutored impact nor a structured reaction

    which the eye witness can make. It is fallacious to suggest that eye witness would have done this or that on seeing the incident. Unless the reaction

    demonstrated by an eye witness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural.

    (viii) Bhargavan & Ors. V/s. State of Kerala, reported in 2004(1) GLH 534. Material and normal discrepancies Normal

    discrepancies do not corrode the credibility of a party's case They are due to normal errors of observation, normal errors of memory due to lapse of

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    time or due to mental

    disposition Material

    discrepancies are not normal They are not expected of a normal person. (ix) State of U.P. V/s. Anil Singh, reported in AIR 1988 SC. 1998 Appreciation of evidence Duty of the Court

    Rejection of prosecution version only on the ground that all witnesses to occurrence were not examined Not proper It is also not proper to reject the case for want of corroboration by independent witnesses if

    the case made out is otherwise true and acceptable.

    (x)

    Main Pal and Anr. V/s.

    State of Hariyana & Ors.,

    reported in 2004(2) C.L.H. 651. Related witness Courts to critically analyze his evidence with caution Cause he is related or his conduct credibility. somewhat unnatural, does not affect

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    (xi) Takadir Samsuddin Sheikh V/s. State of Gujarat and Anr., reported in 2009 (2) G.L.H. 499. Principles of Falsus in uno falsus in omnibus has

    application in India It is the duty of the Court to separate grain from chaff.

    (64) Discussions of evidence against newly added accused no.38 to 41. (65) Before discussing the entire evidence on record, in my opinion that the accused no. 38 to 41 who were added by this Court vide order below application at Exh.288 and 345, evidence against them is to be appreciated.

    As it has come on record, it is admitted fact that accused no. 38 to 41 were not charge-sheeted along with other accused, nor their names were disclosed by any witness or complainant in the statement before the Investigating Officer. Firstly names of the accused no.38 to 41 are

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    disclosed by PW-21 Idrisbhai Abdulbhai Vora, PW-35 Firoz Ismailbhai Kapadwanjwala, PW-36 Fakir Mahmmad

    Gafurbhai, PW-37 Firoz Ismail Vora Matarwala and PW-55 Altaf Safi Mahmmad Vora in the Court during trial.

    Out of these witnesses, Idris Abdul has been examined at Exh.209, he has specifically stated that in the mob accused no.41 had come with burning rags. Thereafter in the incident of Kadar accused no.38, 39 and 40 were present. Accused no.38 assaulted Kadar with a weapon, accused no. 39 kicked Kadar on front side. Whereas accused no. 41 was carrying house-hold items on the next day. In the chief examination of the witness, after the addition of new accused and after framing of the charge and the evidence was recorded on 4/7/2011. He has specifically identified 4 accused no. 38 to 41.

    (66) As regarding the evidence of Firoz Ismail Kapadwanjwala

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    PW-35 is concerned, he has named accused no.41 in the mob who set fire to the mattresses and the wooden rack. And in the incident of Kadar, he has named accused no.39 who kicked Kadar and accused no.40 assaulted Kadar with a weapons and also accused no.41 and other accused poured kerosene on Kadar and burnt him. In the chief

    examination of the witness after the addition of new accused and framing of the charge on 4/7/2011. The witness has identified accused no.39, 40 and 41.

    (67) As per the deposition of witness PW-36 Fakir Mahmmad Gafurbhai, he has identified accused no. 39, 40 and 41 who were in the mob and he has also stated that same mob had burnt Kadarbhai alive. In the chief examination after addition of new accused on 4/7/2011. The witness has identified accused no.39 and 41 before the Court.

    (68) As per the evidence of PW-37 Firoz Ismail Matarwala, he

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    has named accused no. 40 and 41 who were in the mob who set fire to the house and mattresses lying in front of the house and has also named the same mob in the incident of Kadarbhai. After 4 accused were arraigned and charge was framed. In the chief examination of new witness, he identified the accused no. 40 and 41.

    (69) Another eye witness of the incident Altaf Safi Mahmmad Vora PW-55, he has named accused no.38 in the mob and he was having big hammer (Ghan). After the accused were added and charge was framed against new accused. The said witness identified accused no.38 in the Court.

    (70) As regarding cross examination of all the above witnesses is concerned, PW-21 Idrisbhai Abdulbhai Vora. Perusing cross examination dated 7/4/2011 of PW-21. It is admitted by him that statement was read over by the police. However, names of the accused no.38 and 41 was there in the

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    statement is denied. Moreover, he is asked in the cross examination material contradiction against his statement regarding part played by the accused no. 38 to 41. He has denied the fact that he has not mentioned any fact regarding part played by the accused no.38 to 40. He has also denied the fact that accused no.41 was carrying away corrugated sheet and other house-holds items is not mentioned in the statement nor accused no.41 was having burning rags in his hand is not mentioned in the statement. He has also denied that names of accused no. 38 to 41 was never given to the police.

    Now regarding contradiction put before by the defence pertaining to the role played by the accused no. 38 to 41 is concerned, the Investigation Officer, Mr. K.R. Bhuva in his deposition at Exh.360 has clearly mentioned on page no.70 and 71 that Idris declared 11 persons name in his statement which was read over to him. The names of accused no. 38

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    to 41 were never mentioned. No names of other accused were mentioned by Idris and has never suggested to add new names in his statement. It is also admitted by the I.O. that nothing came on record regarding role played by the accused no.38 to 41. Moreover regarding overt act for

    incident of Kadarbhai by the accused no.38 to 40 is not stated by Idrisbhai in his statement, nor act of taking away corrugated sheet and other house-hold items by accused no.41 is stated in the statement, nor accused no.41 was having burning rags is also not stated.

    As such regarding evidence of Idrisbhai for point of accused no.38 to 41 is concerned, it is a material contradiction which has come on record regarding role played by accused no. 38 to 41 in his deposition. As such evidence regarding accused no. 38 to 41 is based upon the material contradiction in the deposition of Idrisbhai. Hence, it is not safe merely on the basis of evidence of Idrisbhai to

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    consider accused no.38 to 41 as to be involved on the basis of reliable evidence.

    (71) Now as regarding

    evidence of PW-35 Firoz Ismail Vora

    Kapadwanjwala. In his cross examination on 4/7/2011 contradiction have been brought on record by the defence regarding his previous statement. He has denied facts that he has seen Suresh Tato from the iron grill door is not mentioned in the statement. Moreover as regarding overt act in the incident of Kadarbhai, he has denied the facts that he has not stated fact in the statement.

    Now regarding the contradiction PW-64, Mr. K. R. Bhuva, I.O. at Exh.360 in his cross examination on 23/9/2011 on page no. 71 has specifically admitted the fact that whatever stated by Firoz Ismail Vora PW-35 regarding new accused no. 38 to 41 is not mentioned in the statement. It is also admitted by him that the witness has not narrated the

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    names of the accused no.39 to 41 in his statement. The witness PW-35 has stated that his statement was recorded for only once, no other statement was recorded by the SIT.

    Now considering the evidence of PW-35 Firoz Ismail Vora Kapadwanjwala on the point of accused no. 39 to 41 material contradiction has come on record. As such it is not safe to rely upon the evidence of Firozbhai Kapadwanjwala for the role played by the accused no. 39 to 41.

    (72) As regarding the PW-36 Fakir Mahmmad Gafurbhai Vora, he has named the accused no.39 to 41 in his cross examination in chief conducted on 4/7/2011 page no. 19 he has stated that police had recorded his statement on 5/3/2002 for first time which he has not read. He has also stated that he has never complained regarding his

    statement before any officer of SIT nor has applied before any SIT Officer. He has admitted that when he first came

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    for deposition, he came to know that name of accused no.39 to 41 is not mentioned in his deposition. He has not met any SIT Officer at that time who were present. He has also admitted that he has not given any application to the police mentioning names of accused no. 39 to 41. It is also admitted that he has not narrated as to what role played by accused no.39 to 41 before the police. As regarding the contradiction of witness seen the accused no.39 to 40 is denied.

    As regarding evidence of CPI, Mr. K.R. Bhuva. I.O. PW-64 is concerned, on 23/9/2011 on page no. 71 paragraph 4, it is admitted by the I.O. that only 7 persons names were revealed in the statement of Fakir Mahmmad Gafur. It is also admitted that witness has not narrated names of accused no.39 to 41 in his statement. It is also admitted that statement was read over before the witness. The contradiction regarding the witness seeing accused from

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    the iron grill door and which is not mentioned in the statement is proved by the I.O.

    (73) As such considering

    deposition of PW-36 some of the

    admitted facts have come on record regarding not mentioning names of the accused no.39 to 41 in the statement as per the I.O. The I.O. read over the statement, witness even coming to know regarding absence of names in the statement has not met the officer of SIT and moreover witness who has seen accused no.39 to 41 from iron grill door is material contradiction which is proved by the I.O. As such deposition of PW-36 on the point of role played by the accused no.39 to 41 absent in the statement mentioning in the deposition is not truly reliable.

    (74) Now considering evidence of PW-37 at Exh.272 in his evidence, he has named accused no. 40 and 41. As

    regarding the cross examination of the witness on 4/7/2011

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    on page no.14, paragraph 2. It is stated that police has not written names came to his knowledge when he came before this Court for his first deposition and read his statement. It is also admitted that he has not made any representation before the police or SIT Officer nor filed any complaint or application before any authority. It is

    admitted by him that he has not stated in his statement regarding role played by accused no.40 and 41. Regarding the contradiction that when he saw the mob, he saw Suresh Ranchhod and Suresh Somaiya with weapons is not stated any statement is denied by him. That he has not seen

    accused no.40 and 41 on the day of incident nor identified them is denied by the witness.

    Now going over to the evidence of CPI, Mr. K.R. Bhuva, at Exh.360. In the cross examination on 23/9/2011 on page no. 71 paragraph 5, it is admitted by the I.O. that he recorded the statement of Firoz Ismail Vora, read over the statement.

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    In the statement 9 persons were named. Whereas accused no. 40 and 41 were not named nor their role was stated. The contradiction which arose in cross-examination of the witness is proved by the I.O.

    Now considering the evidence of PW-37 Firoz Ismail Matarwala. It is also clear that names of accused no.40 and 41 are given for the first time in the court, he has not named accused no.40 and 42 in his statement as proved by the I.O. Moreover, though the names of the accused no.40 and 41 was not there in the statement. He has not consulted SIT nor has given any application before the SIT in time. As such, as it appears from the evidence of PW-37, he has also narrated the incident according to the other witness and has gone against his statement. Hence, it is not safe to rely upon the PW-37 regarding accused no. 40 and 41. the aspect of

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    (75) As regarding evidence of PW-55 Altaf Safimahmmad Vora at Exh.307 is concerned. The witness has alleged against accused no.38 who was in the mob. In the cross examination of the witness conducted on 2/7/2011 in paragraph 10, it is denied that the police has not read his statement. It is also denied that he has not given name of Bhaveshbhai Manubhai Patel when statement was recorded. It is admitted by the witness that before giving the names of Bhaveshbhai Manubhai in the statement, he has not stated this fact before anybody. Regarding role of Bhaveshbhai Manubhai, he has denied the facts that he has not stated the fact regarding role of Bhaveshbhai Manubhai in his statement. It is also denied that Bhaveshbhai Manubhai was having hammer in his hand stated by him in the statement. Now again turning over to the evidence of PW-64, Mr. K.R. Bhuva, CPI at Exh.360. Deposition was conducted on 23/9/2011 on page no.72 in paragraph 6, it is admitted by

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    the I.O. that he has recorded the statement of Altaf and read over the statement in which 6 names were given by him and what role was played by Bhaveshbhai Manubhai was not stated by the witness and nothing had been representated by any witness regarding the accused no. 38 to 41 till the investigation was with him.

    Now regarding evidence of PW-55 is concerned, it also suffers from material infirmity, contradiction and

    discrepancies. Discrepancies and contradictions are proved by the I.O., no where from the date of incident till the deposition, he has stated the names of accused no.38. As such evidence of PW-55 is also not of such a nature which can be relied safely. (76) Upon perusing of the above 5 witnesses PW-21 Idrisbhai Abdulbhai Vora, PW-35 Firozbhai Ismailbhai Vora

    Kapadwanjwala, PW-36 Fakir Mahmmad Gafurbhai Vora, PW-37 Firoz Ismail Matarwala and PW-55 Altaf

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    Safimahmmad Vora; appears that whatever allegations are made against the accused no.38 to 41 are false in nature as per the say of I.O. Mr. K. R. Bhuva.

    (77) It is pertinent to note that the incident has occurred on 1/3/2002 and deposition of the witness are recorded in the year 2010 during that entire period. The witness have not filed any representation against accused no. 38 to 41 before any authority nor in the statement before CPI, Mr. K. R. Bhuva their names were mentioned. For the sake of arguments, if it is believed that witnesses have mentioned the names of accused no. 38 to 41 in their deposition, it should be believed in my opinion that this submissions cannot be sustained. Because present case is of a case in which for the incident occurred in 2002, the investigation was carried out and as it was alleged to be a tardy investigation and as per the order of the Honble Supreme Court, matter was further investigated by the SIT after its

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    constitution. SIT was constituted in the year 2008 and there after also in the year 2010 witness have deposed before the Court during period of 2008 to 2010. No witness came forward to give names of accused no.38 to 41 nor they have cared to file any application to the SIT after its constitution asking for adding the names of accused no.38 to 41. The witness no doubt has tried to bring on record that they do not know the SIT was constituted and was investigating in the matter. This attempt of ignorance on the part of the witnesses cannot be sustained as

    dewatering work was being done in the year 2008 on the basis of application filed by the witness Aliji Ismail Vora before the Judicial Magistrate, First Class, Umreth it was being done was known in the village and this fact was Moreover, perusing the evidence of

    known to Idrisbhai.

    witness PW-65 Mr. H. C. Pathak, SIT, I.O., Dy.S.P., he has specifically stated that public notice were issued, all the notices were affixed on various places of village Ode and it

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    was mentioned that anybody who wants to state any facts regarding the incident in this case can come before the SIT. The public notice was also published in local news paper Anand District and it was affixed on the various place of Ode like Dargah, Masjid, temple, Panchayat office, post office, bus stand, hospital, streets and road and other public place where public can read. As such even if the witnesses were not residing in Ode village, but they had no knowledge of public notice and the constitution of SIT is not believable at all. Moreover as it has come on record that complainant and her father had applied before the SIT and their statements were recorded, so Idrisbhai who is cousin brother of Rehanaben was not knowing this fact is also not believable. Hence this is a special case, wherein SIT has been constituted and when every procedure has been done by the SIT to get information regarding offence, nobody except complainant and her father came before the SIT and the witnesses no.21, 35, 36, 37 and 55 did not

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    appear before the SIT nor stated anything against the accused no.38 to 41, nor they have referred names of accused no.38 to 41 in their police statement. The above referred witness no. 21, 35, 36, 37 and 55 have not filed any application, complaint before any authority. Hence

    allegations levelled against the accused no.38 to 41 after span of 8 years are doubtful and suspicious. As it appears that involvement of accused no.38 to 41 is after thought of the witnesses.

    (78) It is pertinent to note that in this case that PW-23 complainant Rehababen who is examined at Exh.244 has not stated anything against the accused no.38 to 41. Merely she has identified accused in the court as they belong from the same village. In the cross examination of PW-23 has taken up on 18/6/2011 on page no.29 paragraph no.3, it is admitted by her that Bhaveshbhai Manubhai and Suresh Somaiya have filed application before the Honble High

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    Court in which she had filed an affidavit and appeared as complainant and affidavit was filed on 10/3/2011 in the Honble High Court. The affidavit is shown to the witness she admits the photograph and signature of each page and also admitted that whatever stated in the affidavit is true and whatever she knew is written in the affidavit. It is also admitted that contents of the affidavit were read over to her and explained in Gujarati by her advocate and as contents were correct it was signed by her. The affidavit filed by the complainant is produced at Exh.420 and 421. No doubt in the cross examination it was taken up on 18/6/2011. She has denied some of the facts pertaining dispute between herself and Idrisbhai. She has also denied the facts regarding Chapter case filed by her against Idrisbhai on the basis of application given to the SIT. However, it is admission on the part of Rehanaben that whatever is stated in the affidavit is true and in the affidavit she has stated that she has not seen 4 accused taking part

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    in the offence, which was true fact. Now regarding aspect of complaint filed by the Rehanaben before the SIT on the ground that she and her father was pressurized to withdraw themselves from the case is admitted by PW-36 Fakir Mahmmad Gafur Vora. In the cross examination on page no.18, it is clear admission that it is true that they pressurized Rehanaben and her father to withdraw from the case and threatened her for which Rehanaben filed the complaint and he and Idris were arrested and set free on bail in the Mamlatdar Court. This admission on the part of Fakir Mahmmad support the theory of defence that Idris and other 4 witnesses had tried to take over case from hands of complainant and her father and wanted to proceed with the case as per their own wish. And for that reasons, they have tried to implicate 4 persons falsely in the case. This defence is somewhat believable because in this case except PW-21, 35, 36, 37 and 55; no other witnesses have stated the names of

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    accused no.38 to 41. As per the case of prosecution Rehanaben and her father and other witnesses have viewed the incident from Shiv Sadan, alleged place of Kadarbhai. As per the case of prosecution Kadarbhai's incident occurred near the open place of Jayeshbhais residence and from the top floor of the Shiv Sadan, it can be seen. How can Rehanaben and her father and other witnesses of Shiv Sadan not seen accused no.38 to 41 in the incident. Moreover, it is also to be noted that PW-21 has named all the 4 accused, PW-35 who was at the same place, he has only seen 3 accused, PW-36 has also seen only 2 accused, whereas PW-37 has also seen 2 accused and PW-55 has only seen 1 accused. When the incident is seen by all the

    witnesses at the same time, why they have not seen all the 4 accused altogether, it is question, which raises doubt.

    It is also to be noted that as per the case of prosecution Altaf was on the 2nd floor of Abdul Karims building

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    alongwith Razak Abdul, Karim and Mahebub Abdul and Karim was at the same place. They have not mentioned any fact regarding the accused no.38 or accused no.39 to 41. This is also a fact which is inconsistent with the story of other 2 witnesses. This is also a fact which create doubts regarding role played by accused no.38 to 41.

    (79) It is pertinent to note that

    defence has come with the

    story with the particular defence that all the above 5 witnesses were contacting the Patels in the village and were threatening them either to give money or they will be named in the Court and on that basis names of the accused are falsely given by way of application U/s.319.

    The above defence gets some support from the deposition of PW-65 at Exh.367. In the cross examination taken up on 4/10/11 by the defence. It is admitted by the SIT, Dy.S.P., Mr. H.C. Pathak that from the date he has taken up

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    investigation nothing adverse came against the accused no.38 to 41 during his investigation. It is apparently admitted by the I.O., Dy.S.P., Shri Pathak in the application filed before him, it was revealed that except Idris before the evidence of 4 witnesses, if money is given by the accused, than some of the richer accused name of the accused will not be declared in the Court. It is also admitted that if Bhaveshbhai Manubhai pays the amount, his name will not be disclosed in the Court, otherwise, it will be declared in the Court. It is also admitted that amount was asked from Bhavesh by Altaf and other 4 witnesses. Considering the admission of Investigating Officer on record, it is apparent and clear that some foul play has been tried to be played while getting implication of 4 new accused. (80) No doubt this Court has added 4 new accused no. 38 to 41 on the basis of allegations levelled in evidence of 5 witnesses U/s.319 of Criminal Procedure Code. But merely

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    addition of new accused cannot be said to be true evidence unless and until entire evidence is appreciated in true sense. On appreciating entire evidence pertaining to all the 4 accused, in my opinion the evidence pertaining to accused no.38 to 41 by the witnesses is not reliable and not beyond shadow of doubts and the prosecution has failed to establish the case against the accused no.38 to 41 beyond shadow of doubts. Though opportunities had been given to the witnesses to come forward with a particular case and to state all the relevant facts of the case before the SIT nothing came forward and merely alleging against the accused no.38 to 41 in the deposition, though not named in the statement is not believable and reliable and trustworthy. Evidence of witnesses whose properties were damaged. (81) The following witnesses are those whose properties are damaged in the unfortunate incident on 1/3/2002. Sr. Witness Exh. No. No. Name Detail

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    1. 2. 3. 4. 5. 6. 7.

    45 46 51 52 53 54 57

    286 287 297 301 302 303 309

    Ahmedbhai Vora Safi Mohd. Vora Ismailbhai Vora Safimohamad Mohd. Vora Raj Mohd. Shekh Yusufbhai Vora

    Abdulbhai for damage Hasanbhai for damage Abdulbhai for damage Noor for damage Gulamhusen for damage Fakir Mohd. for damage

    Salimbhai Yusufbhai Vora for damage

    (82) Appreciating the evidence of above witnesses, PW-45, Exh. 286 Ahmedbhai Abdulbhai Vora in his deposition has stated that on 1/3/2002 there was a Bharat Bandh call and all the markets of Ode were closed. He was in his house. At about 1.30 to 2.00 p.m. there was a commotion and mob of 500 to 700 people who were in the Bazar, they were shouting but what they are shouting is not known to him. As he saw the mob from a distance, he and his family members left

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    the place and went to Sureli. Later on he came to know that his house was burnt and damage was caused. This witness is not cross examined by the defence.

    (83) PW 46, Exh. 287 Safimohamad Hasanbhai Vora.

    This

    witness has deposed on oath that on 1/3/2002 there was Bharat Bandh call and tense atmosphere was prevailing in Ode. All the Bazars were closed. At about 1.30 p.m., mob of 500 to 700 persons came to Malav Bhagol who were carrying weapons, sticks, Dhariya and were shouting "MARO MARO". The mob started burning the properties, broking the properties, damaging the properties in Malav Bhgaole. He did not identify any persons of the mob as he was scared he and his family members closed their house and left for Sureli. Lateron he came to know that his house and his cycle shop was burnt and damaged.

    In the cross examination it is admitted by him that he has

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    not seen the mob. As soon as he heard the shouts of the mob, he and his family members went to Sureli via Bhalej.

    (84) PW-51, Exh. 297 Ismailbhai Abdulbhai Vora. He has deposed on oath that he was serving on a Floor Mill of Harishbhai Chimanbhai Patel and was staying with his family. On 1/3/2002 there was Bharat Bandh and all the Bazar of Ode were closed and he was in his house. Atmosphere was tense. He heard some shouts that mob is coming, as such he was scared and along with his family, after locking house, he went to Ahima. From Ahima he went to Sundelpura. In Sundelpura, he stayed at his cousin's house where he came to know that all the Muslims of Ode were gone to Sureli. So he also went to Sureli. Lateron he came to know that his house has damaged and burnt and he suffered a loss of Rs. 2.50 lacs. He also came to know that in Ode, Muslim's properties were damaged and burnt and in rioting some persons have died.

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    He has not been cross examined by the defence. (85) PW 52, Exh. 301, Safimohamad Noor Mohd. Vora. He has deposed on oath that he is working as a Conductor in the S.T. He has two sons namely, Irfan and Altaf. His wife's name is Madinaben. At the time of incident he was driving Rixa No. GJ-7-W-5163. On 1/3/2002 there was Bharat Bandh and all Bazar of Ode were closed. Atmosphere was tense. All persons were there in their house at the time of riots. They all had gone to the house of Abdulkarim Rasulbhai his brother-in-law and was staying on the 3rd floor. Mob was shouting. As such they all were hiding in the house. the mob burnt all the houses opposite the house of Abdulkarim. As they were hiding in the house, they were not able to see as to who were there in the mob. After some time, as the atmosphere calm down, they went away via Ranchhodji Mandir to Gajipura and from there to Sureli. The mob had burnt his Rixa and house and he suffered a loss of Rs. 3.00 lacs.

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    In the cross examination, it is admitted by him that in Sureli Camp all his family members and family members of Abdulkarim Rasulbhai was present. It is also admitted that when they went to Sureli, with him all the members of his family accompanied him.

    (86) PW-53, Exh. 302, Raj Mohd. Gulamhusen Shekh. He has deposed on oath that at the time of incident he was staying in Malav Bhagol and was having his garage. On 1/3/2002 there was Bharat Bandh and Bazar were closed. On the date of incident in the morning 7 a.m. he had gone to Pij for attending a marriage and came back at 4 p.m. to Ode. At that time riots broked out in Ode. He was dropped at near Cinema by the Luxury Bus. His mother, father and other family members had left the village and he was told not to enter in the village. As such he went to Sureli. His family members met him at Sureli after 8 to 9 days. He came to

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    know that his garage and house were burnt.

    In his cross examination he has admitted that he has gone for the marriage of Ashok S/o Mafatbhai Panchal to Pij. He has also admitted that accused No. 22 was also there in the marriage and other accused not before court Sachin Rameshbhai Patel was also present. He has been shown a photograph of the marriage which he has admitted to be taken at the time of marriage. He has also admitted that Punambhai Shanabhai accused No. 36 is residing opposite Ashokbhai Panchal and he was in the marriage at Pij. It is admitted that he left Ode at 7 to 7.30 a.m. for Pij and in Luxury Bus accused No. 22, 36 and Sachin Rameshbhai and other persons of Malav Bhagol was there. The photograph of marriage was clicked by the photographer who was there in the marriage and the photograph is referred to the witness.

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    (87) PW- 54, Exh. 303, Yusufbhai Fakir Mohd. Vora. He has deposed on oath that on 1/3/2002 there was Bharat Bandh, Bazar were closed, atmosphere was tense. He was there in his house with his family. At 1.30 to 2.00 p.m. his cousin brother Yunusbhai Ismilbhai came and told that there is a atmosphere of rioting in the village. As such he along with his family members after locking his house went to Sureli. Lateron he came to know that his house was burnt. He has not seen any mob nor any shouts. He has not been cross examined by the defence regarding his deposition.

    (88) PW-57, Exh. 309, Salimbhai Yusufbhai Vora. He has deposed on oath that he is son of Yusufbhai Yakubbhai Vora and brother of the complainant. He was staying as per his deposition on oath in Malav Bhagol, opposite Masjid. He was in Shiv Sadan. On 1/3/2002 at about 1.30 p.m. he heard some shouts of "MARO KAPO". At 2.30 p.m. he ran away

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    from Shiv Sadan and went to Ode highway and from there he went to Umreth. 20 to 25 days, he resided at Umreth and thereafter he went to Sureli where he met his mother, father and sister. In Sureli, he came to know that 24 (twenty four) persons were burnt alive in Surivali Bhagol and 3 (three) persons burnt alive in Malav Bhagol. The three persons who were burnt alive were his aunt Aaiyeshaben, his father's aunt Nooriben and Kadarbhai Ismilbhai from his Maholla and the property in his Maholla were burnt.

    In his cross examination, some minor omission are taken on record regarding his fleeing away from Shiv Sadan. It is admitted in his cross examination that in his statement it is written that he and his brother Irfan were hiding in vacant house called Shiv Sadan and as they were apprehending that they will be killed, they ran away. He has not seen any member of mob or identified any member of mob. Some contradiction are taken on record by the

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    defence which is not affecting the main base of incident of riots. It is admitted that he has not seen the incident of Kadarbhai, Aaiyeshaben and Nooriben.

    From the evidence of the above referred witnesses one admitted position is comes on record is that some incident had happened in Malav Bhagol on 1/3/2002. Properties of persons of Muslim community were damaged and burnt. However no witnesses have stated anything regarding the identification of the persons in the mob. As such who were the persons in the mob are not identified by the witnesses but the factum of the incident of arsoning and damaging the properties of Muslims and mob gathered at Malav Bhagol is clearly supporting the prosecution case. Evidence of Hostile Witnesses :
    1.

    (89) The following witnesses examined by the prosecution are declared hostile. Sr. Witness Exh. Name No. No. Detail

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    1. 2. 3. 4. 5. 6. 7. 8. 9.

    25 26 27 28 30 31 32 33 34

    254 255 256 259 262 263 264 265 266 275 277 279 280 281 285 296

    Karimbhai Vora Yasinbhai Noor Vora Inayatbhai Vora Hanifaben Vora Sufiyabanu Vora Rasidaben Vora Shahenazben Mohd. Vora

    Rasulbhai Hostile Mohd. Hostile

    Yasinbhai Ismilbhai Vora Hostile Yunusbhai Hostile Hostile

    Mohamad Rasul Vora

    Sattarbhai Hostile Karimbhai Hostile Yunusbhai Hostile Noor Hostile Hostile Hostile

    10. 38 11. 40 12. 41 13. 42 14. 43 15. 44 16. 50

    Samik Karim Vora Amit Karim Vora Gulamhusen Shekh Mohemadbhai Abdulbhai Vora

    Rasulbhai Hostile Hostile

    Saburbhai Mohemadbhai Hostile Vora Majidbhai Allarakha Vora Hostile Noor Vora Mohd. Rasulbhai Hostile

    (90) As regarding the appreciation of the evidence of the above witnesses are concerned, it is a settled principle of law that

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    even all the witnesses have turned hostile, their entire evidence can not be discarded and the evidence which is helping to the prosecution case can be considered to that extent. (91) PW-25 Karimbhai Rasulbhai Vora Exh. 254: Considering the above principle of law, appreciating the evidence of PW-25 Karimbhai Rasulbhai Vora Exh. 254 has deposed on oath that he is having his house Survey No. 1085 situated opposite Masjid on the main road in Malav Bhagol. The incident occurred on Friday after the Godhra Carnage. On the date of incident there was Bharat Bandh call. He had not gone for namaz. He was in his house. His son came on cycle from Bazar where he saw the mob. As they apprehended that mob will come towards their house, they locked the house and went away in the nearby fields. After they left their house, where was the mob is not known to him. They all went to Sureli where they came to know that their house and all the houses in their line were burnt.

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    Many persons were killed.

    He has been declared hostile by the prosecution and in the cross examination by the Special Public Prosecutor he has admitted that his statement was recorded in Sureli Camp after one week in which he has narrated that at 1.30 to 2.00 p.m. mob of approximately 500 persons carrying dhariya, sticks, petrol cans and burning rags came towards their street and were shouting "Sala Bandiyaone Kapi Nakho, Jivta Salgavi Do". It is denied by him that he has not stated in the statement that he went away in his house and he saw the persons who are Ravji Mana, Punam Shana, Ghanshyam Shankar. It is also denied that he has stated in the statement names of Harish Vallabh, Ghanshyam Vallabh, Prakash Jamnadas, Dilip Kanubhai, Sachin @ Mohan Chhotu Rama, Kanti Mana and Jayanti Shana. He saw Ghanshyam, Punam and Ravjibhai who were in front of the mob. It is admitted by him that it is true that all the persons were

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    having sticks, dhariya, kerosene, petrol and burning rags. The witness has identified Punam Shana, Ghansham Shankar and Ravji Manabhai - Accused No. 36, 31 and 2. It is also admitted by him that he has stated in his statement that mob has caused death of Aaiyeshaben, Nooriben and Kadarbhai by pouring petrol came to his knowledge in Sureli.

    In the cross examination by the defence of this witness, it is admitted that it is stated that his son told him that there is commotion in the Bazar and the mob is coming towards their house. As such he and his family locked their house and went away. It is also admitted that he, his wife and his two sons and daughter immediately went away to Sureli. It is also admitted that mob was coming from Surivali Bhagol. It is also admitted that three names which he has given and identified were in the mob coming from Surivali Bhagol which he saw while passing

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    beside the temple. It is admitted that he has not seen any person damaging or burning the properties. It is also admitted that he saw the mob from a distance coming from Surivali Bhagol. It is also stated that the three persons who is identified and who are in front of the mob, whether it is stated before the police or not is not known.

    It is admitted that on 7/3/2002 his statement was recorded. On 9/3/2002 whether his further statement was recorded is not remembered. He has given the names of the persons identified once before the police. It is not happened that mob was coming from Malav Bhagol. It is also not happened that after seeing the mob coming from Malav Bhagol, he after sending his family, climbed up the Dargah and hidden himself. It is also admitted that he has not stated the names of accused No. 36, 31 and 2 in his 9/3/2002 statement. He has also not stated that on 9/3/2002 he saw accused No. 36 from the terrace of

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    Dargah. It is sated that it is true that as he was scared, he did not remain present to see the mob. It is also admitted that it is true that three persons he has identified is falsely identified. Considering the evidence of the present witness, no doubt he has been turned hostile by the prosecution but to some extent he has supported the case of prosecution regarding the incident which has happened on 1/3/2002 in Malav Bhagol. It is admitted fact that from the evidence of the hostile witness that mob had come and some incident of arsoning and burning the properties had happened. It is also known to him that three persons had died.

    As regarding the identification of three accused No. 31, 36 and 2 are concerned, he has identified the persons in the court, it can not be denied as the witness and the accused are staying in the same village, same locality. As such they are known to him. But the major fact which has come on

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    record is as soon as he heard that some commotion is taken place, he immediately locked his house and left for Sureli. So there are chances that he might have not seen or identified the persons coming in the mob. Secondly, it is also to be noted that the witness has emphasized that the mob was coming from Surivali Bhagol, whereas in the entire case of prosecution mob has come from Malav Bhagol. So the mob of this case as per the case of prosecution which was coming from Malav Bhagol might not been a mob which is seen by the present witness. It is also not remembered by him whether the names of the accused identified by him were stated before the police or not. Moreover as regarding the accused No. 36 - Punam Shana is concerned, as discussed above in the evidence of PW-53, accused No. 36 was present in the marriage in Pij. It is admission in the cross examination of the said witness. They had returned from marriage at 4.30 in the evening. Whereas, as per the say of this witness the incident

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    occurred at 1.30 p.m. So it is not possible for accused No. 36 to remain present at two places simultaneously. As such, considering the evidence of Karimbhai Rasulbhai Vora PW-25, though his evidence is supporting the case of prosecution on the factum of the incident occurred in Malav Bhagol on 1/3/2002 at 1.30 p.m. but the

    identification of the accused No. 2, 31 and 36 can not be relied upon and for that aspect the evidence of hostile witness is not supporting the case of prosecution and it is a piece of un-reliable evidence.

    (92) PW-26, Yasinbhai Noor

    Mohd. Vora - Exh. 255. This

    witness has deposed on oath that at the time of incident he was residing opposite Masjid in Malav Bhagol and was doing dish connection work. On the date of incident there was Bharat Bandh. He had gone for connection in G.E.B. His Boss - Girishbhai came to G.E.B. and told him that there are riots in Surivali Bhagol and as such he remained in G.E.B. in

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    night. His Boss came and dropped him in Sureli Camp. Besides this he has not supported the story of prosecution.

    This witness is declared hostile by the prosecution. In cross examination by the Special P.P., he has not supported any fact of his statement nor any fact regarding the identification of the persons in the mob. As such considering the evidence of the present witness in the cross examination by the prosecution nothing supporting the incident or the identification of any accused has been brought on record. Hence the present witness is not supporting the case of prosecution.

    (93) PW-27, Yasinbhai Ismilbhai Vora Exh. 256. This witness has deposed on oath that on 1/3/2002 there was call of Bandh. He was in the field doing agriculture work and after returning he was taking his lunch. At that time there was tense atmosphere in the village and he and his family

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    members went to the fields and from there he went to call his brother Siraj. After he came back to the field, he did not find his wife and children and as such he went to Sureli. After 15 days he came to know that his wife and children are in Anand. Except this, the witness has not supported the case of prosecution. He has been turned hostile and in the cross examination by the Special P.P., he has denied that his statement was recorded and also he has denied the entire facts of his statement before the police. Considering the entire evidence, the only fact which emerges out supporting the prosecution is on 1/3/2002 there was a tense atmosphere in the village and for that reason the witness left his house. As such except this fact the witness is not supporting the prosecution in any manner.

    (94) PW-28 - Inayatbhai Yunusbhai Vora - Exh. 259. This witness has deposed on oath that at the time of incident he, his brother and sister were in their house. His mother-

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    father had gone for cultivation work and after their mother-father returned, they were taking lunch. As there was tense atmosphere in the village they all left their house and went to the field. After some time, his father went to call his uncle Siraj and as they were in the field they heard shouts of the mob and so as they were scared, he, his mother and his brother, sister went away to Anand and after 15 days his father met him in Sureli. They heard the shouts at 1.00 to 1.30 p.m. Except this, the witness has not supported the entire case of prosecution. He has been declared hostile. In the cross examination by Special P.P., he has not supported his statement nor supported the names which has been given by him in his police statement. As such from the evidence of present witness the only fact which emerges out helping the prosecution is regarding tense atmosphere in the village, shouts of the mob at 1.00 to 1.30 p.m. Except this, no other facts are supporting to the prosecution.

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    (95) PW-30 Mohamad Rasul Vora Exh. 262. It is deposed on oath that on 1/3/2002 incident occurred on Friday. It was Bandh. They were all in their house. He wanted to go for Namaj but persons in the Bazar said that there is commotion in the Bazar. As such as there was shouts in the Bazar he and his family members ran to Sureli. While going to Sureli, he saw the mob doing rioting from a distance. He has not identified any persons from the mob. In Sureli, he came to know that his house and shops were burnt. Except this, the witness has not supported the case of prosecution. He has been declared hostile and after declaring hostile in the cross examination by the Special P.P., he has not supported his statement recorded by the police nor supported the names given by him in the statement. Hence in his evidence the fact regarding the mob coming, tense atmosphere and knowledge of burning the house and shops have come on record supporting the case of prosecution

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    else nothing has come on record against the accused. Hence, except the tense atmosphere and the mob coming, this witness is not supporting the case of prosecution. (96) PW-32 - Hanifaben Sattarbhai Vora Exh. 263. It is deposed on oath by this witness that it was Friday on the date of incident. Her children told her that there is commotion in the village. As such they all left the village and went to Sureli. Except this, the witness has not supported the case of prosecution as per her statement recorded by the I.O. She has denied the facts narrated by her in the statement. The names given by her in the police are denied. Hence except there was a commotion in the village she has not supported the case of the prosecution regarding the involvement of the accused.

    (97)

    PW-32 Sufiyabanu Karimbhai Vora Exh. 264. She has stated on oath that the incident occurred on Friday. It was Bandh call. She was at her residence. At 1.00 to 1.30 p.m.

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    on the date of incident there was tense atmosphere in the village, her husband told that there is a commotion in the village and lot of commotion in the village bazar and there is a mob in the bazar. Hence, they all left for Sureli. Except this she has not supported the case of prosecution hence she was declared hostile and in the cross examination by the Special P.P. she has denied that her statement was recorded and also denied the facts narrated in the statement along with names of the accused in the mob. Hence, the only fact which is supported by this witness is regarding commotion and tense atmosphere in the village. Rest of the facts of the prosecution case are not supported by this witness.

    (98)

    PW-33 Rasidaben Yunusbhai Vora Exh. 265. She has deposed on oath that on the date of incident she and her husband had gone to the fields and in the afternoon returned for lunch and were taking lunch. At that time

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    there was a tense atmosphere in the village. As such she, her husband and children went away to the field. After some time her husband went to find her brother-in-law Siraj as the atmosphere was very tense in village and riots broked out she and her children went to Anand and her husband was left away. After 15 days she came to know that her husband is in Sureli. She also came to know that her house was burnt and some Muslim persons were also burnt alive. Except this facts, the witness has not supported the other facts of the case of prosecution. This witness has been declared hostile by the prosecution. In the cross examination of the witness by the Special P.P. she has denied that her statement was recorded. She has also denied the narration of her statement in which she has seen the mob and named the persons in the mob. Hence only to the extent of damage caused to her property and tense atmosphere in the village, she has not supported the case of prosecution.

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    (99) PW-34 Shahenazben Noormohd. Vora - Exh. 266. She has deposed on oath that it was Friday on the date of incident. Bazar was closed. She was in her house. Her son Ramiz was sick. As at the time when she was in the house, she came to know from the people that Rally was taken out. As such she and her son left their house and went to village Bhaliyesar. Except this, she has not supported the case of prosecution. She has been declared hostile. In cross examination by the Special P.P. she has denied the fact that her statement was recorded. She has also denied the entire narration of the statement and also the names given by her in the statement.

    (100) PW-38 Samik Karim Vora - Exh. 275. He has deposed on oath that at the time of incident he was staying with his father Karimbhai in Malav Bhagol area. On 1/3/2002 it was Friday and bandh call was given. He wanted to go for

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    Namaz but as he saw mob in the bazar, he returned back to his home. He saw the mob from a distance. As he was scared he has not seen who were in the mob. As the mob was coming towards their house, he and his family members left the house and he as well as 2-3 other boys went away to Shiv Sadan and stayed their for some time. After 10-15 minutes half an hour, they were in the Shiv Sadan. They heard shouts of mob, siren and police firing. As such he jumped from the back of Shiv Sadan and passing Solabhai Khadki went to Ravalji Khadki and as there was one motor standing there, he and boys of his street, his sister went to Sureli. His father Karimbhai, Rasulbhai, mother Sufiyaben and brother Amit had not accompanied him. After 2-3 days in Sureli, police came and recorded his statement. In Shiv Sadan Salim @ Iliyaz, Salim Sabur and Samir Sattar were with him. He saw houses burning in his Maholla from window of Shiv Sadan.

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    He is declared hostile as he not supported any other facts of the prosecution case. In the cross examination by the Special P.P. he has not supported his statement recorded by the police.

    In the cross examination by the defence it is admitted by him that as the Masjid in Malav Bhagol was closed he was going to offer Namaz in Masjid situated in bazar. It is true that he was going to the Masjid which is near Surivali Bhagol. He saw the mob near Surivali Bhagol bazar and returned back and talked with his parents. At that time all family members locked the house and went away. It is also admitted by him that he and another broke open the closed Shiv Sadan bunglow and entered in it. It is also

    admitted that as there was commotion in the village he ran away from Shiv Sadan after half an hour as felt commotion in the village he ran away passing Solavali Khadki. It is also admitted that till he left away from Shiv Sadan he had not

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    seen any commotion or riots in near Malav Bhagol. It is also admitted that as and when the news of commotion spread, all the Muslim persons in their locality left their home. Now, considering the evidence of this witness who has turned hostile not supporting the case of prosecution pertaining to the incident occurred at 1.30 to 2.00 p.m. nor he has supported the case of prosecution regarding names of accused leveled by him in his statement. But the say of the prosecution regarding the incident occurred on 1/3/2002 in village Ode is supported by this witness. Though before riots broke out in Malav Bhagol he left Shiv Sadan but riots do broke out in the Malav Bhagol can not be denied. As such on the point of identification or name of the accused, witness is not supporting the prosecution but regarding the facts of incident occurred, there is some support of the witness to the prosecution though he has turned hostile. (101) PW-40 Amit Karim Vora Exh. 277. He has deposed on

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    oath that on 1/3/2002 it was Friday. He was in his house. As his father told him to see what was going in bazar, he went to bazar on cycle and on returning he told his father that atmosphere is tense in bazar. Hence they all decided to leave the place. Where his father, mother and brother had gone was not known to him but he and one Inayat both went to Masjid on the terrace. As they saw the mob, they went down the Masjid from the back side and passing through Aashirvad Wadi they went to Dargah near Malav Talav. He heard shouts of the mob from a distance. He has not identified the mob. After that he went to Anand. Except this he has not supported the other facts of the incident. He has been declared hostile by the prosecution. In the cross examination by the prosecution he has not supported police statement nor he has supported the names narrated by him in the statement. But in cross examination by the prosecution he has submitted that in the incident Idrish, Abdul Yakub, Firoz Ismail Kapadvanjvala, Firoz Matarvala

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    and Fakir Mohamad were burnt and he went to Umreth hospital to see them. In the incident his house was damaged and burnt and he suffered loss of Rs. 7.00 to Rs. 8.00 lacs.

    Now considering evidence of this particular witness it is clear that he has not supported the entire incident which happened on 1/3/2002 at 1.30 p.m. in Malav Bhagol. But from his evidence some incident had happened, properties were damaged, five persons were injured comes on record. Hence the witness who has turned hostile has supported to some extent the case of prosecution on the facts of incident.

    (102) PW-41 Gulamhusen Rasulbhai Shekh Exh. 279. He has deposed on oath that incident occurred on 1/3/2002. He had gone to fetch some wood from the field and returned back at 12.45 p.m. His house was locked. Neighbors told

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    him that his family had gone to near pond. As such he also went to pond where he met his daughter, son and wife. His elder son Raj Mohamad had gone in the marriage. When he was coming to his garage after fetching wood he saw mob coming from bazar side. As such he ran away. Except this evidence he has not supported the incident though as per the case of prosecution he is also eye witness. He has been declared hostile. In the cross examination by the

    prosecution he has not supported the statement recorded by the police. Except he came to know in Sureli that Kadarbhai Ismailbhai, Aaiyeshaben Abdulbhai, Nooriben Gafurbhai were burnt alive and Abdul, Idrish, Firoz were injured.

    This witness though turned hostile is not supporting his statement wherein he has disclosed the names of the accused and also stated the facts of incident. But the only support which he gives is regarding some incident had

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    happened and some persons had died and some persons were injured. As such besides except the facts of incident, this witness does not support the case of prosecution regarding the accused or the factum of entire incident.

    (103) PW-42 Mohamadbhai Abdulbhai Vora - Exh. 280. He has deposed on oath that on 1/3/2002 it was Bharat Bandh call. His wife and his children had gone to Anand. He offered Namaz at Anand and at 4 O'clock he started for Ode. As he was going from back side road, he felt the tense atmosphere in the village. As such he hid himself behind the bushes near the pond. He saw the mob from the distance. This witness has also not supported the case of prosecution and was declared hostile. In the cross examination by the Special P.P. he has not supported the statement recorded by the I.O. nor he has supported his statement declaring the names of the accused in the statement. Hence evidence of this particular witness is not

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    supporting the case of prosecution.

    (104) PW-43, Saburbhai Mohamadbhai Vora Exh. 281. This witness has deposed on oath that on 1/3/2002 it was Bharat bandh call. All bazar of Ode were closed. He was in his cattle shed. His wife was with him. At 1.15 p.m. his brotherin-law Yunusbhai Ismilbhai @ Allarakha came from Bhagol side and told him that there is commotion and shouting going near Bhagol and smoke is seen. As such he and his wife locking the house went away. They went to Ode stand and from there Ratanpur cross road, they went to Anand. Considering the evidence of this witness he has been declared hostile by the prosecution as not supporting the case. In the cross examination by the Special P.P. he has not supported the case made out by him in his police statement nor he has supported the narration of the names of the accused in his statement. Only the support which is given by him is regarding the knowledge of damages

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    caused to the shops, houses of Muslims community in Ode and death of Aaiyeshaben, Nooriben and Kadarbhai. The witness is not cross examined on any of the point by the defence.

    (105) PW-44 Majidbhai Allarakha Vora Exh. 285. This witness has in his deposition on oath stated that he on the day of incident there was Bandh. He was sitting outside of his shop. His elder brother Salim Allarakha had gone to offer Namaz and after returning he told to close down shop as there is commotion going on bazar. As such he, his wife, mother and daughter went away in the field after locking their house and from there they went to Sureli. In Sureli he came to know that his cabin is damaged, his house is also damaged and burnt, and some people in Malav Bhagol are burnt alive.

    This witness is declared hostile by the prosecution nothing

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    supporting

    the

    case

    of

    the

    prosecution.

    In

    cross

    examination by the Special P.P., he has not supported his previous statement. He has not given any support regarding incident seen by him or names narrated by him in the police statement or their identification of the accused. Only support which is given in the cross examination is that he came to know that Kadarbhai, Nooriben and Aaiyeshaben residing in Ode Malav Bhagol were burnt alive. Witness is not cross examined on any point by the defence. Considering the evidence of the witness only support which has been given by the witness is regarding some commotion in the village on 1/3/2002. Except this, as regarding the accused or the name of the accused disclosed by him no support is given by the witness.

    (106) PW-50, Noor

    Mohd. Rasulbhai Vora Exh. 296. He has

    deposed on oath that on Friday, atmosphere was tense in Ode, markets were closed. He after having lunch with his

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    mother, went to Shiv Sadan and was sitting outside a heap of grass and Rehana and Yusufbhai went in Shiv Sadan. At 1.30 p.m. he heard some loud shouts. As such he was scared and he hid himself behind the heap of grass and the whole day he sat over on the back side of the heap of grass. In the night, he came out of Shiv Sadan. Near gate of Jayeshbhai there was a dead body lying in turned position. Thereafter he went to Jayeshbhai's compound where he met Abdul Yakub, Idrish Abdul, Firoz Ismail Matarvala, Firoz Kapadvanjwala and Fakir Gafur who were hiding inside. But then again at 11.30 as there was some apprehension in their mind they returned back to Shiv Sadan and hid over there. Except Fakir Gafur and Firoz Kapadvanjwala all other accompanied him. On day of Saturday, the whole day they stayed in Shiv Sadan and in the morning on Sunday, he, his mother Mariyamben, Abdul Yakub, Yusuf Yakub,

    Jubedabibi, Rehana, Firoz Matarwala, Idrish all went to Sureli. Aaiyeshaben was not there. She had gone to her

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    own house he heard her shouts. Idrish told him regarding dead body of Kadarbhai, which he had seen near Jayeshbhai's house.

    The witness is declared hostile as he not supported the some of the contents of his statement regarding the incident and the names assigned by him in the police statement. In the cross examination he has denied the facts of the statement recorded by the I.O.

    In the cross examination by the defence it is admitted by him that he has not stated anything before the police whatever stated in the chief examination. His nephew Firoz Matarwala was staying in Ghanshyambhai's house as a tenant. As his wife was gone to her maternal house, Firoz was coming for the meals. As regarding the topography of the street, it is admitted that first house is of Abdul Yakub, second is of Yusuf Yakub, 3rd is of Fakir Mohamad, last is of

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    the witness. It is also admitted that in front of their houses, is also line of other houses whose doors are opening on the Malav Bhagol main road. Some houses are of 2 floors and some of are three floors in one line. It is also admitted that Malav Bhagol Masjid road can not be seen from their house or standing outside his house. It is also admitted that on the southern side of his house after the wall is house of Abdul Karim Rasulbhai. It is also admitted that on or from any part of Abdul Karim Rasulbhai's house, Malav Bhagol Masjid main road can not be seen. It is however voluntarily stated that from the 3rd floor, the Minar of Masjid can be seen but road can not be seen.

    (107) Now considering the evidence of this witness, this witness is supporting some important aspect of the incident. However he has not named any accused. But he has supported the facts when the incident had occurred in their street. He has seen one dead body lying outside

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    Jayeshbhai's house. Except the identification and the naming of the accused the fact regarding the incident had occurred is supported by this witness. So though the witness is turned hostile, some of the facts of the incident are supported by this witness along with the topography of the houses details and the persons accompanying him. Evidence of main Eye-witnesses. (108) The following witnesses are examined by the prosecution who are eye witnesses of the incident and some of them are injured witnesses. Sr. Witness Exh. Name No. No. 1. 2. 21 23 209 244 Idrish Abdul Vora Rehana Yusuf Vora Detail Injured witness eye

    eye witness and complainant father of complainant eye witness eye witness eye eye

    3.

    24

    249

    Yusuf Yakub Vora

    4. 5. 6.

    29 35 36

    260 269 270

    Salim Iliyaz Vora

    Firoz Ismail Vora Injured (Kapadvanjvala) witness Fakir Mo. Gafur Injured

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    Vora 7. 8. 9. 37 39 47 272 276 291 292 293 307 Firoz Ismail (Matarwala) Razak Vora

    witness Vora Injured witness eye

    Samir Abdul Vora

    eye witness

    Abdulkarim eye witness eye witness eye witness eye witness

    10. 48 11. 49 12. 55

    Maheboob Abdulkarim Vora Aliji Iamail Vora Altaf Safi Mo. Vora

    (109) PW-21 Idrish Abdul Vora Exh. 209. The witness is injured witness. In his deposition on oath he has stated that after taking his lunch on the date of incident on 1/3/2002 Friday, he was sitting in his house and at that time 4 to 5 leading persons of the village namely, Minesh Punam, Harish Vallabh, absconding Natu Sata, not before court Asha Rama and Arun Shankar Mukhi came and said that they were to take out a Rally and remain inside the house. After that he went in the Masjid to offer Namaz. At 1.30 p.m. when he returned, his house was closed and having inquired of the family persons they were in Shiv Sadan. So he went there. He saw his mother, father, his grand mother Nooriben,

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    uncle Yusufbhai, Noor Mohamad, Fakir Mohamad, Firoz Ismail Matarwala, Firoz Kapadwanjwala, Rehana and Salim Gulam, Samir Abdul and Siraj Fakir Mohamad. As his father desired to have tea, his mother, father, witness himself, Firoz Ismail Matarwala, Firoz Kapadwanjwala, Fakir

    Mohamad Gafurbhai, his grand mother Nooriben they all went to his house to take tea. During that time his neighbour Kadarbhai also came to his house. After tea, as they were sitting, they heard shouts hue and cry from the crowd saying "Sala Bandiyaone Salgavi Nakho, Maro, Koi Jivto Bachvo Na Joiye". At that time he heard the sound of breaking the cabin of Abdulbhai meant for repairing of primus, battery and other things. The mob came near the corner of his street shouting after breaking the cabin and came towards his house and as the mob saw them in the house, they shout "Aa lokone jivta bali nakho" to burn them alive. Mob was of 200 to 250 persons. One of the persons from the mob closed the door from outside and

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    started to throw away mattresses and its stands near the grill. Thereafter the mob poured some kerosene on it. At that time he identified Accused No. 8, 13, 10, 11, 26, 35, 9, 12, 35, 14, 29, 20, 19 in the mob and also the persons who are not before the court. He has also stated that Accused NO. 8 and 13 and Natu Sata were having kerosene can. Accused No. 35, 10, 26, 11 and 41 were having burning rags and others were having sticks and spears. The mob pouring the kerosene his house was burning. they were all running here and there to save their lives. His mother started burning as the house was on fire. She shouted, "Idrish, help me". After that, he strongly pushed the door of the house and he, Firoz Matarwala, Firoz Kapadwanjwala, Kadar and Gafur all who have received burns went and hid themselves in the house of Noor Mohd. Rasul. Whereas his mother Aaiyeshaben and grand mother Nooriben were not able to come out. Kadar was burnt heavily, he could not tolerate and so he came out saying that he can not bear the burns.

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    At that time the witness came out a little to see whether the crowd allowed Kadar to go. At that time Natu Sata caught hold of Kadar and other persons from the crowd reached there. In which Accused No. 8, 9, 12, 13, 38, 39, 40 and other persons not before the court poured kerosene on Kadar and threw burning rags. Accused No. 38 assaulted Kadar with the weapon whereas accused No. 39 has kicked Kadar on the front side. Kadar fell down, shouting for help. Kadar was burnt near the open space opposite the house of Jayeshbhai. As the situation calm down he the witness, Fakir Gafur, Firoz Kapadwanjwala came out of the house of Noor Mohamad. They saw Aaiyeshaben and grand mother Nooriben dead. They went to Jayeshbhai's house and hid themselves behind the heap of tobacco where his father came to him. His uncle Yusufbhai, Rehana, Jubeda and Noor Mohd. also came to the compound of Jayeshbhai to

    hid themselves as they were thinking to go to some safe place. In the night some people from the mob returned

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    with torches and electric batteries. As they felt that compound of Jayeshbhai was not safe, they again went to Shiv Sadan, except Firoz Kapadvanjwala and Fakir

    Mohamad who were unable to walk and so they hid themselves on the upper room of Jayeshbhai's house which was occupied by Ratansinh. On the next day, they saw persons of the crowds taking their household kits, corrugated sheds in which there was Accused No. 41, 10, 26 along with other persons of the crowd. He has stated that whole day of Saturday they passed in Shiv Sadan. Next day at about 4.30 in the morning they started on foot from Shiv Sadan through fields went to Sureli and they were admitted in the hospital and on Tuesday police has recorded his statement. Whatever is stated in the court was stated by him before the police. He stayed for 20 days in the hospital and he was burnt on his both hands and both legs.

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    (110) In light of the deposition of Idrish Abdul Vora, it is argued by ld. Advocate on behalf of the defence relying upon the cross examination of the witness that whatever is stated by the witness is totally contradictory to the police statement and improved version has been stated by him in his deposition. Many contradictions and omissions are

    brought on record by the defence which are denied by the witness are proved from the evidence of the I.O. The facts which are not narrated by the witness before the police are stated after 8 years in exaggerated manner with lots of improvement.

    (111) In the cross examination in para-7 the topography of Malav Bhagol has been asked and it is admitted by the witness as to where which house is and which shop stands. It is admitted in the cross examination that it is true "if anybody standing on the door of his house and any incident occur in Malav Bhagol, it can not be seen". It is also true that

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    "road of Malav Bhagol chowk to Masjid can not be seen standing near his house". It is also true that his father's cabin can not be seen from his house. It is true that iron door of Jayeshbhai's house is just opposite the street coming from the main road towards their house. Compound wall of Jayeshbhai's house is 10' to 12' high. It is true that from one house, his uncle and father has made two houses. Rehana's residence, Fakir Gafur and his residence are in a line having ground floor only where as Noor Mohd.'s house is pakka and having one storey. It is

    true that door of his house is 2.1/2' inside after the compound wall of Jayeshbhai. It is also true that from Shiv Sadan nothing can be seen in their house. As such it is in the light of this admission it is argued that the incident of Nooriben and Aaiyeshaben can not be seen by any of the witnesses. How the incident has happened, what happened can not be known to any witness as it can not be seen from any place. It is admitted in cross examination in para-53,

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    "incident of Aaiyeshaben and Nooriben had occurred inside the house". It is also admitted that the incident of Aaiyeshaben and Nooriben can not be seen from Noor Mohd. Rasul's house and from Shiv Sadan. In para-54 of cross examination of the witness, he has ommitted to say that his mother Aaiyeshaben and Nooriben and Kadarbhai were burnt to death and their bodies were destroyed.

    (112) It is argued by ld. Advocate on behalf of the defence that in cross examination lots of contradictions and omissions which are material are put before the witness, they are denied by witness are proved by the I.O. As such the statement of the witness dtd. 5/3/2002 is not true and keeping aside the statement totally a new evidence is brought on record. As such evidence in chief examination can not be used against the accused. On one side the witness has put before the court new story and on the other side he has stated that whatever stated on 5/3/2002

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    is true. Moreover the witness has also contradicted own theory of his injury which is against the documentary evidence i.e. injury certificate and also the panchnama Exh. 88. The witness has deliberately hidden some material facts and had tried to put contradictory new story to implicate the accused falsely. Moreover in the arguments, ld. Advocate on behalf of the defence has submitted regarding the place of incident of Kadarbhai as from the evidence of C.P.I. Shri K.R. Bhuva Exh. 360 para-130. It is admitted that from the statement of Idrish place of Kadar was ascertained and it was near Bismilla Masjid near godown of Abdul. Hence the story put before by the witness regarding the place of Kadar near the iron gate of Jayeshbhai is false. Moreover, the witness has stated in the chief that as his mother was burning and shouting for help he pushed the door and he along with Firoz Kapadwanjwala, Kadar, Firoz Matarwala, Gafur went and hid themselves in Noor Mohd. Rasul's house. Whereas it is contradictory to the

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    evidence of Firoz Matarwala. As such inter-say witnesses are contradicting each other. Moreover incident of Kadarbhai can not be seen from Noor Mohd.'s house as there are

    other houses between them having latrine, bathroom on the Otla and so in order to implicate the accused falsely the incident of Kadar is concocted. For the first time the incident has been stated before the court which can not be believed. The evidence is doubtful, it can not be believed at all, full of contradictions, omissions and improvements and so it is submitted to discard the evidence of Idrishbhai.

    (113) The sum and substance of the cross examination in which the contradictions and omissions are brought on record is that the event or incident as narrated by Idrish can not be seen by him from anywhere and merely to implicate falsely accused, improvements in exaggerated version has been brought on record.

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    (114) Considering the evidence of Idrish on record the witness is a natural witness. It can not be denied. His presence at the time of incident can not be doubted as he, his mother, father and other family members were sitting in the house and were taking tea the attack was made by the mob. It also can not be denied from the entire evidence of Idrish that he is an injured witness. As regarding the seeing the incident is concerned, it is on record that he was in the house but the door of the house was closed by some persons from the crowd and mattresses and the stands were thrown down and was put to fire near the grill that saws that there was a grill in the door from where the entire incident can be seen. The witness has not come forward to say anything which he could not have seen. but when he is inside the house, when he is accompanied by the family members in the house namely, Nooriben, Aaiyeshaben, his father, Kadarbhai, Firoz Kapadwanjwala, Firoz Matarwala and Fakir Gafur, naturally, he was the best

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    person to see as who has come to his house. there is nothing to deny that he could not have seen the incident. When the crowd enters Raveshi of his house shouting to kill all the persons in the house, naturally the witness would have been under a panic, he would have been under some threat of for his life and so naturally it would not have been the same version as which he could have described before the police, which he has described in the court.

    (115) It is pertinent to note in this case that entire investigation carried out by the C.P.I. was challenged by the complainant and the witnesses before the Hon'ble Supreme Court and on the basis of the Writ Petition filed by the witnesses SIT was constituted though the witnesses demanded the case to be transferred out of Gujarat. But naturally Hon'ble Supreme Court also must have seen the lapses in the investigation and so the Special Team was constituted. Hence when there was an allegation against the tardy

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    investigation, it could have been happened that whatever real incident was stated by the witness before the police might not have been recorded by the police and in that case contradictions and omissions are bound to happen which have happened in this case. In a case of communal riots where many people are involved as assailant and as there is a tardy investigation, there is a possibility of witnesses speaking against the police statement and as per the settled principle of law police statements are not conclusive or substantive. But whatever statement in the court is substantive evidence and so discrepancies and contradictions and omissions arisen in the evidence which were bound to happen which are not of nature which can wash out the entire version of prosecution. The substratum of the incident which has occurred on 1/3/2003 is not shaken at all by the version of witness. In the entire police statement the incident has been narrated. The death of Aaiyeshaben, Noori and Kadar has been narrated. The

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    names of some assailants are narrated. Merely the place of seeing the incident by the witness is challenged or some new accused are arraigned by the witness does not make him totally doubtful about the incident. In my opinion the version of Idrish pertaining to the facts of incident, place of his seeing the incident is not shaken up by the contradictions and omissions. It can not be said that totally the witness has washed out the prosecution case by omission and contradiction and so the witness Idrish who is injured in the incident is a natural witness, his presence can not be doubted. He is injured by burns and so I am of the opinion that his evidence is reliable and trustworthy to the extent of happening of the incident.

    (116) As regard the place of incident of Kadarbhai is concerned, in earlier issue, it has been discussed that as per panchnama Exh. 80, 300 gram bones were collected from near the godown of Abdulbhai. As per the say of panch

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    witness at Exh. 79, he has gone to near the house of Abdulbhai where 300 gram of bones were collected from open space 15' X 20' and on the ground there were stones. Nowhere on record in the entire evidence it has come that there was a godown of Abdulbhai. On the contrary as it has appeared in evidence Abdulbhai was having a cabin of Primus and Torch repairing. At the same time panchnama Exh. 82 on record. Panch witness has been examined at Exh. 81. He has stated the facts regarding panchnama. In the panchnama Exh. 82 it is clear that near the place of godown of Abdulbhai some match sticks, some parts of Primus repairing, other things were lying scattered near the place. When shaking the heap of ashes 300 gram of bones were recovered earlier and the place from where the bones are recovered on the Western side is house of Manu Ishwar in which there are two houses one of Babubhai and one of Jayeshbhai and the number is mentioned at 842 and on the Northern side from the place where the bones are found

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    is the gate of the house owned by Mahendrabhai Ambubhai Patel. As such from this panchnama, no doubt it is near the Masjid but the houses of the witnesses on the place of incident is also called Malav Bhagol near Masjid. So place of incident of Kadar as it comes to be from the panchnama is not as per the defence near the Masjid. On the corner because no godown is situated and no question regarding godown is asked by the defence in the entire evidence. Hence, regarding the defence version is

    concerned that place of incident of Kadar is changed by the witness and the other witnesses can not be sustained. Moreover one hostile witness Noor Mohd. Rasul Exh. 296 has clearly stated in his chief that as he went out of Shiv Sadan in the night and went near the gate of Jayeshbhai he saw one dead body, turned in a Namaz doing position, which was told him to be of Kadar by Idrish. This important aspect has nowhere been challenged by the defence in the cross of the said witness and so it remains un-challenged.

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    Hence the place of incident of Kadar also gets supports from other hostile witness including panchnama. As such in the light of this evidence, evidence of Idrish is found to be natural, reliable, trustworthy. The place of Kadar is also found to be the same as mentioned by Idrish and so evidence of Idrish though having contradictions and omissions, it can not be discarded wholly.

    (117) PW-23, Rehana Yusuf Vora Exh. 244. She has deposed on oath that incident took place on 1st March, 2002 at about 1.00 to 1.30 p.m. When she heard shouts and cries of some persons the day was Friday and it was a special day for prayer. At about 12.00 to 12.30, two leading persons along with others Asha Rama and Natu Sata leaders came and talked with her father that there a Rally is going to pass and nothing is going to happen. So all remain in house. She has heard that talk. Thereafter her father went to Masjid for prayer and she went to Shiv Sadan for washing the

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    clothes. Shiv Sadan was owned by Ghanshyambhai and keys were lying with them. Her mother Jubeda, her brother, her nephew, her brother Idrish came to Shiv Sadan. Her father also came with her uncle Abdulbhai, grand mother Nooriben and aunt Aaiyeshaben. After some time her brother Irfan Salim and cousin's son Salim left Shiv Sadan. Along with them Firoz Kapadwanjwala also left Shiv Sadan. Thereafter Fakir Gafur who is also known as son of Bhikhaka, Nooriben, Bhikhakaka, Idrish, Aaiyeshaben,

    Abdul, left Shiv Sadan for taking tea. Firoz Matarwala and Kadar also joined them for tea. After some time they heard some loud cries, so she, her father, mother, grand mother Mariyam, Noor Mohd. all remained in Shiv Sadan, went

    to 3rd floor. At 1.45 p.m. they saw the 500 persons mob came towards their house from Masjid side and pouring kerosene, burning rags in houses situated in the street and all the houses were burning. She identified some of the persons in the crowd. However she does not remembered

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    who was carrying which weapon. But some were carrying kerosene, some were having burning rags, she identified Accused No. 13, 8, 9, 10, 11, 12. They were setting fire to their house and were shouting "kill them". She heard shouts from house where incident of fire took place continued for two hours. All were shouting "help-help". She saw Firoz Matarwala coming from the burning house. After lifting the sheets and as her elder uncle was not able to go out, he caught hold of the sheet and as such both came outside and went to Babubhai's house. Firoz was burnt while lifting the sheets. She heard shouts of Aaiyeshaben and Noori and after sometimes the cries were stopped. She also saw Idrish, Kadar, Firoz Kapadvanjwala going to Noor Mohd.'s House. She further stated that at about 5 to 5-30 p.m., the same crowd once again came out. Kadar come out. He was burning and he was pouring water on his burn areas. At that time the crowd saw him. Natu Sata told him to come and they will do nothing to him. As

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    such Kadar came out and went to open place near to Shiv Sadan. At that time crowd surrounded Kadar started beating him. At that time Petrol was poured upon him and Kadar was burnt. In that crowd she has identified Harish Vallabh, Prakash Jamana, Vasant Punam and other persons who are in the crowd. Kadar was fully burnt. The crowd went away in the evening. She does not know what happened to Noori and Aaiyeshaben as she did not go over that way. In the night, when she came out with her parents, grandmother and Noor Mohd. from Shiv Sadan and went towards house of Babubhai, she saw dead body of Kadar turned upside down. They crossed the dead body of Kadar. Abdul and Firoz Matarwala was there at Babubhai's resident. Firoz Kapadvanjwala and Idrish and Fakir Mohd. also remained there. They hid themselves behind the heap of Tobacco and one bed lying over there. As Firoz Kapadvanjwala and Fakir Gafur were very scared they went to Ratansinh's tenanted house on the first floor and hid

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    themselves over there. In the late night crowd again came with batteries watching for the persons survived. As they were scared after seeing the crowd they immediately entered the Shiv Sadan and stayed there for three days and saw the crowd taking away their household kits. On the 3rd in the early morning they went to Sureli Camp along with parents, her uncle Abdul, Noor Mohd., Brother Idrish, Grandmother Mariyam and Firoz Matarwala. On 5th police came and complaint was lodged which she signed. Which she has admitted and the complaint is filed produced at Exh. 245 in the record. Witness has identified accused in the court. She has also stated that after 3-4 days police took her to the houses which were burnt, where she saw a lump of flesh, almond colour Saree, petticoat piece, which was weared by Aaiyeshaben on the date of incident. She identified those articles in the court. This is the sum and substance of the chief in examination in Rehana.

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    (118) In the cross examination one thing which is not disputed is the presence of the witness on the date, time and event of the incident. From the entire cross examination what is disputed is the presence in Shiv Sadan along with other witnesses. Moreover, whether the witness has seen the incident from Shiv Sadan is also disputed.

    (119) Relying upon cross examination it is argued by ld. Advocate Mr. C. K. Patel and Mr. Dhagat on behalf of defence, that complaint is lodged after full deliberation at the belated stage. There are improvements exaggeration and

    contradictions and

    omissions in the evidence of the

    witness. On page 13, para 10 the entire contradiction has come on record which she has never stated before the police and that contradiction is proved in the deposition of CPI Mr. Bhuva, PW64, Exh. 360 on page 35 & 38 below 55 & 59. As such witness has deposed totally contradictory against her complaint and the further statement. Hence, it

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    can not be believed. It is also submitted that she has stated false fact regarding one Adambhai in her complaint. Moreover, as per the complaint the entire episode of Kadar took place at 8 p.m. How she has seen the incident, from where she has seen the incident is not disclosed by her in the entire evidence. Moreover, as per her say the mob has come thrice, once in the afternoon, secondly in the evening and the third in the night which is not possible and it is a new addition to the evidence. As per the cross examination in para-14 & 13 of the deposition page 17 as per the say of witness she has seen the incident from window of third floor. She is not able to state the measurement of window. She can not see the incident sitting at the window. She had to stand. It is admitted that there were no iron grills on the window. It is denied that there is no window on the second or third floor of Shiv Sadan facing towards her house. It also admitted that they have to go from the staircase to the first and second floor of the Shiv Sadan. The ground floor

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    is having the door. It is also admitted that compound wall of Shiv Sadan facing toward her house is 12' height. It is in "L" shape. It is also admitted that the small streets of their house is 5' broad which goes upto house of Noor Mohd. and there it ends. It is admitted that from any part of Shiv Sadan front portion of their house can not be seen. It is denied that 500 persons mob entered in their street and they are standing in the street can not be seen. It is

    admitted that there is Raveshi (open balcony) in front of house of Abdul, Yusuf and Noori and it is covered by tin sheet. There is latrine, bathroom in the open raveshi of Abdulbhai. It is admitted that from any part of Shiv Sadan, if, any person is standing then open balcony of Abdulbhai, her house and Nooriben's house can not be seen. It is also admitted that from Shiv Sadan inner part of the house of Abdul, Noori and her house can not be seen. It is admitted that at the time of incident Noori and Aaiyeshaben were in which house is not known. It is also admitted that who

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    burnt Aaiyeshaben and Noori is not seen by her nor she has seen Aaiyeshaben and Noori burning. As regarding the geographical position in Shiv Sadan is concerned it is submitted by ld. Advocate for defence that no photographs have been produced on record of Shiv Sadan which were taken at the time of incident. No Panchnama is drawn by CPI Mr. Bhuva of Shiv Sadan. No further statement has been recorded by SIT Dy.S.P. regarding geographical position of Shiv Sadan in 2002. He has also not received any photographs or video-graphy of Shiv Sadan from CPI Mr. Bhuva. As such it is submitted that say of Rehana is not supported considering the topography of Shiv Sadan and other houses situated in the street. It is also submitted that SIT Dy.S.P. has investigated and has recorded the statement of owner of Shiv Sadan namely Mahendra Ambalal and he got the information regarding where the keys of Shiv Sadan lying at the time of incident. The prosecution has not examined Mahendra Ambalal. As such he is examined as

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    the defence witness and his deposition can not be ignored and from the deposition of Mahendra Ambalal the evidence of Rehana and other persons hiding in Shiv Sadan proves to be false. Considering the evidence of Rehana it is clearly submitted that the entire evidence of Rehana is full of contradiction omission and exaggeration. It is not trustworthy and reliable. New theory and story has been brought before by the witness in the court, veracity of the witness is doubtful as such the entire evidence should be discarded.

    (120) From the submission of both sides as the prosecution has submitted to rely upon the evidence which is a natural evidence and the submission of defence as stated in earlier it is a special case in which SIT has come in to picture after allegation against the tardy investigation was made in the Hon'ble Supreme Court by the complainant and the witness. Right from the beginning from year 2003, the

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    allegation regarding tardy investigation have been leveled against IO. The case is of such a nature in which in communal riots many properties are damaged,3 persons have lost there lives. It is not disputed that Rehana is the complainant nor it is disputed that she was not present at the time of incident. As regarding the incident being seen by Rehana from Shiv Sadan is concerned, as per local inspection of this court, the report which is filed at Exh. 452, it is three storey building and there is small balcony facing towards the houses of the witness i.e. towards southern side, photographs of Shiv Sadan also produced on record at Exh. 314. This photographs were taken by Sanjay Ramji Pattni PW-58 Exh. 330 at the instance of SIT Investigating Officer Dy. S.P. Shri Pathak in presence of witness Yusufbhai. No doubt photographs are taken recently in the year 2008 after the SIT took over the investigation. Photographs are taken on such a way that the seen of offense can be seen from the floors of Shiv Sadan.

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    The balcony, the windows are also shown in the photographs and from the balcony also photo is taken. No doubt the photographs clearly established this fact that there is an open space on the three floor of Shiv Sadan from where one can see the place i.e. the street where the houses are situated. Even this court has inspected the site of incident. The part of tardy investigation of C.P.I. Mr. Bhuva comes on record from this fact is that when in the complaint and from the statement of the witnesses name of Shiv Sadan revealed, how come he had not cared to draw panchnama of Shiv Sadan. As per his say there were photographs of the place of incident but it has not been placed in the record nor handed over to SIT. Hence, the SIT had to take photographs in 2008 nearly six years after the incident. But that itself does not support the say of defence that geographical position of Shiv Sadan is changed during the six years. No iota of evidence has come on record that Shiv Sadan was not situated in 2002 nor even the owner of

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    Shiv Sadan Mahendrabhai who has been examined in defence at Exh. 465 has stated that the position of Shiv Sadan has changed and it was not such as it is today or renovation work or any construction work has been done in Shiv Sadan during this six years. So the submission of defence that Shiv Sadan's geographical position is not clearly brought on record is not sustainable as there is no change in the geographical position during this years in Shiv Sadan. No doubt as per the admission of Rehana, the balcony portion of all the houses can not be seen nor what is going on in the house can not be seen but if a mob enters in the street where the houses are situated, there is nothing on record adverse which can show that nobody can see the mob from the second floor balcony of Shiv Sadan. Hence say of Rehana that she has seen mob, she has identified the persons from Shiv Sadan can not be disbelieved. As such the arguments on behalf of the defence is not sustainable regarding the viewing of incident

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    by Rehana from Shiv Sadan.

    (121) As regarding the incident occurred thrice as per the say of Rehana is concerned, she has stated the incident one in the afternoon, incident of Kadarbhai in the evening and in the late night again crowd coming and they all again hiding in the Shiv Sadan. It can not be denied that the incident which happened in the afternoon at 1.30 to 1.45 p.m. and as per say of Rehana it continued for two hours that means atmosphere was tense up to 4 O'clock, at that time as per Idrish they were hiding Noor Mohd.'s house and as Kadar was not able to tolerate his burns, he came outside and he was caught hold of by the that mob between 4 to 5 and when Kadar was caught by the crowd, beaten by the crowd, he was burned by the crowd and when entire incident of Kadar was over, it may be in the evening and so entire incident as narrated in the complaint by Rehana must have been completed by 8 O'clock which she must have

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    bifurcated in her deposition. But in all even if she has narrated incident in the deposition in a different manner it does not changes away the happening of the incident.

    (122) Moreover there are contradictions and omissions brought on record by the defence, proved by I.O. which are not narrated in detail in the appreciation but as stated earlier whatever is stated by the witness before the police whether it was written in the same manner by the police is not known to the witness and whatever happened in the incident is narrated in the court. So there are

    contradictions and omissions bound to happen when there is allegation of tardy investigation. As such those

    contradictions and omissions though are in number on record but those contradictions and omissions considering the complaint and considering the deposition on record does not affect the entire incident. The incident remains as it is. Hence, the contradictions and omissions does not help

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    this court to come to conclusion that the witness is unreliable or untrustworthy.

    (123) As regarding the incident of Aaiyeshaben and Noori is concerned, no doubt the incident has occurred in their house. As per say of Rehana they have gone to take tea in Abdulbhai's house. The crowd came, entered their street, poured kerosene which was seen by Rehana. It is not the case of defence that the crowd had come only to meet somebody or had come to do some other work. But the crowd entered in the street, shouting slogans and merely thereafter the incident of fire had taken place. So it leads to an inference that Nooriben and Aaiyeshaben who were in the house were burnt alive in this incident. So it might not have been seen by Rehana.

    (124) As such considering the entire evidence of Rehana, she is a natural witness, her presence can not be doubted, she is a

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    complainant. Though the complaint is filed at a later stage but that is not fatal to the prosecution as discussed earlier. Hence in my opinion evidence of Rehana is reliable, trustworthy and can not be discarded on the grounds of contradictions and omissions.

    (125) PW-24 Yusuf Yakub Vora Exh. 249. He is father of the complainant Rehana. As per his deposition on oath, on 1/3/2002 it was Friday, it was tense in the village atmosphere. At 12 to 12.30 p.m. he was standing outside his house. At that time 4 to 5 persons of the village came to him and said they will be taking out a Rally, nothing will happen. You remain in your house. Persons were accused No. 8 Natu Sata, Asha Rama and other 4 to 5 persons. After offering Namaz, he came to his house, as there was no one in the house, he and Abdul went to Shiv Sadan. There were hue and cries in the village and a scary atmosphere. In Shiv Sadan he met his wife Jubeda, daughter Rehana, aunt

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    Mariam,

    Nooriben,

    Fakir,

    Idrish,

    Samir,

    Firoz

    Kapadwanjwala. After some time as Abdul desired to take tea, he along with his wife Aaiyeshaben, Nooriben, Idrish, Firoz Kapadwanjwala, Firoz Matarwala all went to take tea and the witness, his daughter, his wife and aunt Nooriben all stayed in Shiv Sadan. At 1.30 to 1.45 p.m. one mob of 500 persons carrying deadly weapons, burning rags, kerosene, sticks, dhariya came towards their street and pouring kerosene on the mattresses stands and also pouring kerosene on the doors and pouch of petrol on the door and burnt the house. He identified Accused No. 8 to 12, 18 and 32 and other accused person not before the court. Who was having which weapon is not remembered by him. He also say one Fauji known as Fauji in the village who came with tempo with some persons and was taking away carrying the household kits. Witness has identified persons who came to tell him that Rally is going to be taken out and also the mob who burnt the houses. He has

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    not identified as to who was Minesh Punam and Vasant Punam but has specifically stated that both are brothers and both were present. He has also identified the Fauji who is accused No. 5. After the incident of burning there were shouts of help coming from the houses. He saw incident from Shiv Sadan. After theincident the crowd went away. Firoz Matarwala and Abdul came outside from the back after lifting the corrugated sheets and round about 5.00 p.m. Firoz Kapadwanjwala, Idrish, Fakir Mohd. went to hid near Noor Mohd.'s house. Whereas Abdul and Firoz

    Matarwala went to Babubhai's house and hid themselves behind heap of tobacco.

    (126) At 5.00 to 5.30 p.m. again the mob came towards the house shouting if anybody is survived, kill them, burnt them. At that time Kadarbhai was burnt. He came out to pour water on his legs. Natu Sata saw him and told him to go away. He will do nothing. As such Kadar went over there

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    and the crowd surrounded him, assaulted him and poured kerosene, petrol from the pouch and burnt him. The incident of Kadar took place near the gate of Shiv Sadan opposite Jayeshbhai's house, between the Otla and gate of Shiv Sadan. He has also stated that Aaiyeshaben and Nooriben were in the house, their cries, were heard in Shiv Sadan but as he was scared he was not going to help. He heard help shouts for the five times and thereafter the shouts stopped. As the atmosphere calm down in the evening they all came out from Shiv Sadan, went towards Babubhai's house, they met Firoz Matarwala, Abdul, Idrish, Firoz Kapadwanjwala, Fakir Mohd. and they all hid over there. In the morning 4 to 5 a.m. as the mob came again with batteries and burning rags to see if anybody is survived at that time all were very much scared. Firoz Kapadwanjwala and Firoz Matarwala went on the first floor of Babubhai's house and he and other went to Shiv Sadan and on Sunday morning they left Shiv Sadan and reached

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    Sureli early in the morning. Abdul Yakub, Firoz Matarwala and Idrish who were with them to Sureli were burnt and injured, he took them to Umreth and they were admitted in the hospital on Monday and from hospital he went back to Sureli where his statement was recorded. In his deposition whatever photographs which are brought on record Exh. 314 details of the photographs have been stated by him. As such in examination in chief of witness Yusuf has narrated same details as of Rehana which is corroborating the incident and other aspect as Rehana's deposition.

    (127) As per arguments submitted by ld. Advocate Mr. C.K. Patel and Mr. Dhagat on behalf of defence in view of the cross examination it is mainly submitted that whatever is stated in chief is totally contradictory to the police statement recorded on 7/3/2002. Merely to implicate new accused the witness has stated new things. No where it has been

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    shown in the evidence as to which accused has taken part in what manner.

    (128) As regarding aspect of Fauji is concerned it is also submitted that it is a total new thing which has come on record and which is not there in evidence of any other witnesses in the entire trial. The evidence of Fauji is contradictory to the statement which is proved by the I.O. It is also submitted that in the cross examination page No. 13 to 16, para 12 onwards the contradictions are asked which are denied by the witness but they are proved in the deposition of PW-64 C.P.I. Shri Bhuva Pg. 60 and 61. It is also submitted considering the geographical position of topography of Shiv Sadan that it is not possible for the witness to see incident from Shiv Sadan as stated by him which is also contradictory to his police statement. Moreover it is submitted that considering the entire evidence of witness it is not reliable, trustworthy and as it is

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    full of contradictions and omissions, the entire evidence should be discarded.

    (129) Considering the arguments of the ld. Advocate for the defence as stated earlier the witness has accompanied the complainant in Shiv Sadan. There is a consistent version regarding the incident as same of Rehana. As discussed above the topography of Shiv Sadan it is not to be discussed as it has been discussed earlier, the open place in front of Jayeshbhai's house can be clearly seen from Shiv Sadan. As stated above in this case the investigation of I.O. is challenged in the Hon'ble Apex Court. Hence

    contradictions and omissions are bound to occur. The contradictions and omissions which are brought on record and admitted by the I.O. in his deposition are not of such nature to shake up the entire evidence on record. As such considering the entire evidence on record of this witness though it is having contradiction and omission in it, the

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    identification of the accused, the happening of the incident is not challenged. However it can not be denied that name of Fauji has occurred in this evidence which has not come on record in any other place. Moreover the tempo had come and Fauji had come and was taking away the household kits at the time of incident is little bit doubtful because when the incident or arsoning was going on the crowd was busy in setting fire to the houses. It can not be a conduct of any person to call a tempo and to carry out the household kits and go away. Moreover evidence of Idrish which is discussed earlier, the evidence of Rehana which is discussed earlier has not leveled the aspect of carrying away the household kits by Fauji in a Tempo with the help of the other persons. Idrish was in the house when the incident occurred. As per the say of Idrish the house was locked so there was no question of taking away household kits when the house was locked. Idrish was the best person to see. At the same time Rehana also has seen the incident

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    from the place where Abdulbhai has seen. But Rehana has also not stated about Fauji or any tempo standing in the street. It is also pertinent to note that the street from Masjid towards Jayeshbhai's house is 10' to 12' broad but the street in which the houses are situated is 5' broad. So if a tempo is brought it can not go upto end of the street and opposite Masjid and so if a tempo is standing inside the street opposite Masjid which is 10' to 12' broad that street can not be viewed from Shiv Sadan. As there is a house which is 2 storey goes upto end of street. Hence, the

    theory of bringing tempo and Fauji carrying household kits is not believable.

    As per the settled principle of law if some of the evidence is not believable but the rest and a major portion is believable than merely on the basis of none believable evidence the entire evidence can not be discarded. As principle of "Falsus in uno, Falsus in omnibus" has no

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    application in India. As such except the evidence of Fauji the rest of evidence of Abdul is reliable and trustworthy.

    (130) PW-29, Salim Iliyaz Vora. Exh. 260. This witness has in his deposition stated on oath that the witness was residing in Bhatwada in house rented from one Barot and was driving Matador of Dinesh Sata Patel. He is owner of one Matador which was given to his cousin Inayat. On the date of incident at about 1.30 p.m. he was coming to his house for taking lunch at that time a crowd of 500 people have gathered near Malav Bhagol and they were having burning rags, sticks, dharia and petrol, kerosene tins. He saw this sitting in the Matador. As the crowd started coming towards him he immediately left in the Matador towards the house of Dineshbhai. He parked Matador and went to Sureli. He saw the crowd shouting "bandiyaone mari nakho, kapi nakho" and was using abusive words. The witness has identified Accused No. 8, 9, 12 and 13.

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    It is argued by the ld. Advocate Mr. C.K. Patel and Mr. Dhagat on behalf of the defence relying upon the cross examination that whatever stated in the examination in chief is proved as an omission in the cross examination. It is also stated that from Bhatvada corner, Malav Bhagol area can not be seen and as such the witness has created a false evidence. It is denied that from Manibhai Barot's house Masjid Chowkdi and Malav Bhagol Chowkdi can not be seen. It is admitted that at 1.30 to 1.45 p.m. he came towards Bhatvada from bus stand. He denied that he heard any shout of firing at Surivali Bhagol. His Matador was facing towards Malav Bhagol. He has admitted that he was on the corner of the road turning towards Bhatwada as the mob saw him they all chased him so he went to the house of his master Dineshbhai after reversing the Matador. It is admitted that while reversing the Matador no person of the mob came towards him taking him or his Matador. It is

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    admitted in cross examination that if anybody is standing in Malav Bhagol three roads than Malav Bhagol to Masjid road can not be seen. It is also admitted that house of Rehana, Kadar, Yusuf can not be seen from Malav Bhagol three roads. Hence in the cross examination his contradiction and omission are brought on record which are proved in the deposition of the I.O. It is also submitted by the defence that the conduct of witness is doubtful, he has not declared names of any of the assailants before anybody. As such evidence of witness is against human conduct and so considering the contradiction and omission considering the evidence of witness, the evidence is not reliable, he is having unnatural conduct and so his evidence should be discarded.

    Upon hearing the submission on behalf of the defence I am of the opinion that this witness is natural witness who was going towards his house for lunch in his

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    Matador where he saw the crowd coming towards him. It was a natural conduct that if the crowd coming towards him having deadly weapons, burning rags he immediately ran away. Naturally he is from the same village. He has recognized some persons who are coming towards him. So merely because he has not stated before anybody his conduct can not be doubted because at the time of incident the atmosphere was very tense. There was disharmony and distrust amongst people and prevailing situation was scary and the person who had just rescued himself from an attack and ran away he must have been under a shock position. So he might have not declared before anybody. He immediately ran to his master's house, parked matador and ran away as there was a disharmony and distrust prevailing amongst two communities at that time and his master being a member of one community he might not have told the incident to his master as there was a lack of trust. So that conduct can not be termed as

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    unnatural. It is but natural reaction and for that reaction it can not be said that entire evidence of the witness can be doubted. As regarding the topography of the place is concerned nothing has come on record to doubt that the witness has not been able to see the mob or was not been able to identify the persons in the mob. Hence in my opinion the presence of the witness can not be termed as unnatural presence. At the same time I am of the opinion that witness is reliable, trustworthy and can not be doubted.

    (131) PW-35 Firoz Ismail Kapadwanjwala Exh. 269. He is nephew of Yusufbhai Yakub Vora. As per his deposition on oath on 1/3/2002 at 11.30 a.m. he was sitting on the Otla outside house at that time 5 persons came and told to remain calm, nothing would happen to them. The persons were Accused No. 8, 12, Natu Sata, Asha Rama, Arun Mukhi. On Otla Abdul, Idrish, Fakir Gafur were also sitting.

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    At 12.30 after he completed his meal he went to offer Namaz and returned at 1.30 to 1.45 p.m. All the persons from his house were in Shiv Sadan. As such he also went to Shiv Sadan and after some time Abdul told them to have tea. As such Abdul, witness, Firoz Matarwala, Idrish, Nooriben, Fakir and Aaiyeshaben went to Abdulbhai's house to take tea and Kadar also joined them. Whereas other persons Rehana, her father, mother, Noor Mohd. and Mariam were in Shiv Sadan. As they were having tea at that time one mob came from Bhagol side shouting

    "bandiyaone mari nakho, kapi nakho" and were breaking Abdul's cabin and burning it came in the street of their house. One person from the mob closed the grill door from the outside and the mattresses stand was dropped in the open balcony. He identified the mob and identified Accused NO. 8, 9, 11, 12, 13, 26, 35, 41 and Upendra Vinu and Samir Pidheli. Accused No. 13 was having sharp weapon where as Accused No. 35 was having chisel in his

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    hand whereas others were holding kerosene can and burning rags. The mob threw pouring kerosene on the

    house and burning rags on the house. As such he was burnt. Accused are identified by the witness in the court. He identified Accused No. 10 also who was in the mob. He has further stated that Idrish broke up the door and he, Fakir Gafur, Kadar, Ismail, Idrish went to hid in Noor Mohd.'s house. As Kadar was not able to tolerate the burns he came out and he was caught by Natu Sata and thereafter he was surrounded by mob. Accused No. 13 assaulted him with a weapon. Accused No. 39 kicked him on front side. Accused No. 40 assaulted him on his head with the hammer whereas Accused No. 9, 12, 13, 41, 39 and Natu Sata poured kerosene on him and burnt him alive. Incident of Kadarbhai was seen by him below the staircase of Noor Mohd.'s house. Thereafter mob went away. All the three persons from Noor Mohd.'s house went to Jayeshbhai's house where they met Firoz Matarwala,

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    Abdul Yakub. Whereas Nooriben and Aaiyeshaben were burnt dead in Abdul Yakub's house. Thereafter he, Idrish, Fakir Gafur, Firoz Matarwala, Abdul all went to first floor of Jayeshbhai's house and hid over there where Yusuf, Rehana and Yusuf's wife also came and all hid themselves behind a heap of tobacco. In the night the mob came with petrol, shouting to kill if anybody is alive. As such he and Fakir Gafur hid themselves on the first floor of Jayeshbhai's house where they stayed for three days. 3rd day in the afternoon Military police came and he and Fakir was rescued and taken to Sureli. As it was Sunday, no treatment was given and on Monday he was taken to Umreth Hospital. He sustained injuries on his hand, legs, face and ear and remained in the hospital for 20-25 days. In the hospital he narrated the incident to the police.

    In arguments submitted by ld. Advocate Mr. C.K. Patel on behalf of the defence considering the cross examination

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    of the witness it is

    argued that the witness has improved

    his entire narration which is mentioned before the police at the time of statement. After 8 years witness has come with a new story with lot of exaggeration, contradiction and omissions. The contradiction in the cross examination are recorded on Page 5, para 5, 10 and 13 though they are denied by the witness but are admitted and proved by the I.O. PW-64, Exh. 360 in Para 16 and 17. As such considering the contradictions and omissions it comes on record that the witness has stated totally new things before the court. It is also submitted that there are discrepancies in the deposition of the witness and that of Firoz Matarwala as the witness PW-35 has stated that all five persons hid themselves on the first floor of Jayeshbhai's house whereas this is not supported by Firoz Matarwala as he has stated that in Jayeshbhai's compound Abdul, Fakir Gafur, Idrish and Firoz Kapadwanjwala met him. As such there is a contradiction between Firoz Matarwala and Firoz

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    Kapadwanjwala. Moreover as per Rehana also Firoz Kapadwanjwala had left Shiv Sadan with her brothers. As such witness was not present at the time of incident. Moreover the specific allegation leveled by the witness in the deposition are not stated in the police statement against any of the accused. Moreover there is an improvement in the deposition of witness as Idrish has not stated that there was an iron grill door which was closed whereas the witness has specifically improved this version and so it creates doubt regarding regarding the viewing of the incident. Moreover the witness has not stated anything about Firoz Matarwala and Abdul in his deposition and so his presence at Abdul's house is doubtful. Witness has not stated anything regarding Nooriben and Aaiyeshaben when they left Abdul's house or Noor Mohd.'s house. As regarding the incident of Kadarbhai is concerned it is submitted that the witness has not stated anything where the incident of Kadar has taken place when they were

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    hiding below staircase of Noor Mohd.'s house. It is not possible to view the incident of Kadarbhai as there is nothing brought on record by the prosecution whether there was any staircase in the Noor Mohd.'s house and where was the staircase. Moreover it is submitted that the witness has not stated anything that mob had come again at 5.00 to 5.30 p.m. as stated by Rehana. As such there is a doubt whether the witness has seen the incident of Kadar. Moreover as regarding his own injury, the witness has not stated anything before the Medical Officer and his injuries is not such which can be covered U/s. 307 of I.P.C. In totality the entire evidence of the witness is full of contradiction, omission, highly doubtful and suspicious which can not be relied and so the evidence of witness can be discarded.

    Upon considering the submissions on record, I am of the opinion that the present witness is admittedly an

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    injured witness which can not be denied and so it cannot be termed as a chance witness nor a concocted or broughtup witness. No doubt the contradiction and omission are on record which are duly proved by the I.O. but as stated earlier the entire contradiction and omission do not wipe away the entire factum of incident which has occurred. As regarding the discrepancy of iron grill door is concerned, it is very minor discrepancy because though Idrish has not stated that there was iron grill door but in his deposition he has stated that the mattresses and the stand of mattresses was dropped near the grill. So there was some grill. There was a grill on door which can not be denied. So this is not an improvement or discrepancy which affect the incident. As regarding the contradiction pertaining to the deposition of Firoz Matarwala and Firoz Kapadwanjwala is concerned I am of the opinion that contradiction arisen and are to be proved with the previous statement and not with the deposition of other witness. However even if it is

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    believed that all the five witnesses had gone to Jayeshbhai's house first floor in the deposition of Rehana and Idrish it has come on record that they all met once at Jayeshbhai's house and though all hid themselves behind heap of tobacco so the discrepancy is not of such nature which can create a doubt regarding veracity. All the persons gathered once at Jayeshbhai's house, they hid themselves behind heap of tobacco as the mob came again in the night along with the torch only Fakir and Firoz Kapadwanjwala hid themselves on the first floor of Jayeshbhai's house. So meeting at Jayeshbhai's house compound and going on first floor is not a much bigger contradiction which can be taken in to consideration. As regarding say of Rehana that Firoz Kapadwanjwala left Shiv Sadan may be true but that does not mean that he has left the entire vicinity where the incident took place. Rehana must have not seen Firoz

    Kapadwanjwala going into Abdul's house for taking tea. He left Shiv Sadan but he might have gone to Abdul's house

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    can not be disbelieved.

    As regarding the incident of Kadarbhai is concerned as in earlier discussion also considering the panchnama and other evidence, place of Kadarbhai is placed at

    Jayeshbhai's house opposite the gate of Shiv Sadan. It is a fact that while hiding themselves in Noor Mohd's. house below the staircase, Kadar came out as he was not able to tolerate the burns and he was caught hold. Even if it is believed that Jayeshbhai's place was not seen which was far away and between that place of Noor Mohd.'s house there were three houses, than also taking away of Kadarbhai by Natu Sata and crowd surrounded him can not be disbelieved. As regarding the position of staircase is concerned it was the duty of the I.O. to bring it on record the each and every aspect of the locality in the panchnama. I.O. should have investigated must have shown the real position of Noor Mohd.'s house. Unfortunately, I.O. has not

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    investigated upto the mark. For that reason only the investigation was challenged by the witnesses and the matter went to the Hon'ble Supreme Court and the SIT was constituted. So for the fault of investigating agency, nothing which has been narrated by the witness in his deposition if it does not come in the statement or if it is not revealed that there was a staircase and the prosecution also unaware, the witness can not be termed as untrustworthy.

    As

    regarding

    contradictions

    and

    omissions

    are

    concerned as discussed earlier when there is a tardy investigation which is also challenged, the witnesses who have stated and narrated the incident in the court as if it was the same in the statement and if it is not as according to the statement naturally, contradiction and omission are bound to happen and so that contradictions and omissions are not at the fault of the witness but for the want of mis-

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    investigation by the investigating agency and when the contradiction and omission do come on record but are not affecting the entire The case of prosecution has they are is

    meaningless.

    incident

    which

    occurred

    undisputed. The witnesses have seen assailants, has named them may be some new names must have been given in the deposition but that does not affect the entire deposition. The place of incident is seen by the witness. He was present when the first incident of burning the house has taken place. He was injured in that incident. He has taken shelter below staircase of Noor Mohd. So he might have also viewed the second incident of Kadarbhai. As such the contradiction and omission as are not affecting the entire substratum of the incident. They are not affecting the veracity and truthfulness of the incident. In my opinion evidence of witness No. 35 is natural and trustworthy to the extent of describing the incident.

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    (132) PW-36, Fakir Mohd. Gafur Vora Exh. 270. As per the deposition on oath he has stated that on 1/3/2002 there was bandh call. It was Friday. He was in his house. At 11.00 to 11.30 a.m. 4-5 leading persons came. He, Idrish, Firoz, Yusuf were sitting outside. At that time Natu Sata accused No. 8 and accused No. 9, Asha Rama and Arun Mukhi came and told them that they are going to take out the Rally. Nothing will happen. After they went at 12.00 p.m. he, Abdul, Aaiyeshaben, Yusuf, Jubeda, Rehana, Firoz

    Kapadwanjwala, Idrish, Nooriben, Noor Mohd., Mariam and Firoz Ismail Matarwala all were sitting in Shiv Sadan at that time Abdul Yakub told to have tea. As such he, Abdul, Aaiyeshaben, Noori, Firoz Matarwala, Firoz Kapadwanjwala and Idrish went to Abdul's house to take tea. At that time Kadar also joined them. As they were drinking the tea, they heard huge shouts "sala bandiyaone kapi nakho, mari nakho". Thereafter cabin of Abdul was broken and burnt and the mob came towards their house. One person closed

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    the door and a mob dropped down the stand of mattresses near the door and burnt that. The witness saw from the iron grill. The persons in the mob who are identified as Accused No. 13, 12, 9, 10, 11, 28, 39, 40, 41 and Vadilal Ravji, Samir Pidheli, Aplesh Dedo, Upendra Vinu. the mob was carrying kerosene cans and burning rags and were burning the houses and shouting. As the mob went they broke the door and jumped out of the fire and he, Firoz Kapadwanjwala, Idrish, Abdul, went to Noor Mohd.'s house and hid. As he was not able to bear the burns he went inside the toilet of Noor Mohd. At that time Kadar came out and Natu Sata saw him and caught him and the entire crowd came surrounded Kadar and poured kerosene on Kadar and burnt him alive. After the mob went away, he came out, he saw his mother Nooriben and Aaiyeshaben dead in Abdul's house and also saw Kadar's dead body. He, Idrish, Firoz Kapadwanjwala all the three went to Jayeshbhai's house where they met Firoz Matarwala and

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    Abdul Yakub and thereafter Yusuf, Rehana, Jubeda, Mariam and Noor Mohd. also came to Jayeshbhai's house. They all hid behind the heap of tobacco. As the crowd again came with batteries shouting to kill those who are survived as such he and Firoz Kapadwanjwala went to upper floor of Ratansinh whereas others went away to Shiv Sadan. On Saturday they saw the crowd carrying away and looting their household kits and on Sunday morning he saw Accused No. 9, 12, 35, Mohan Ramesh, Suryakant Petrolpumpvala destroying the dead body of Kadar. Persons destroying the dead body by burning it. At 5.00 to 6.00 p.m. in the evening, police came and he and Firoz Kapadwanjwala were rescued and were taken to Sureli. He sustained burn injuries on both hands and legs and on

    Monday he was taken to Umreth hospital where he took treatment for 15 days. Police has recorded his statement. Whatever he stated was narrated before the police. The witness has identified the accused in the court.

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    As argued by the ld. Advocate for the defence relying upon the cross examination it is stated that the deposition of the present witness is totally contradictory to the other witnesses. Abdul had never accompanied Firoz

    Kapadwanjwala or Idrish hiding in Noor Mohd.'s house. Moreover there is improvement in the deposition of witness regarding he hiding in the toilet of Noor Mohd. Witness has not stated anything regarding where the incident of Kadarbhai was happened. Witness has also narrated new thing regarding destruction of dead body of Kadar. No witness has uttered the word regarding destruction of the body of Kadar. If Firoz Kapadwanjwala and Fakir Gafur both were in Jayeshbhai's house, then Firoz Kapadwanjwala would have also stated the fact

    regarding the destroying the dead body of Kadar. As such the witness has narrated a new thing in his deposition. Omissions which have arisen in the deposition are on page

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    4 and 5, para-3 which is denied by the witness but omissions are proved on page-47, para-74 onwards in the deposition of C.P.I. Bhuva PW-64, Exh. 360 and the

    contradiction are also proved on record in para 6 to 9. The witness has narrated a new incident after a span of 8 years which can not be believed and should be discarded. He has not specified as to how he has seen incident of Kadar from Noor Mohd.'s toilet. No details of the toilet is brought on record by the prosecution. As such the incident of Kadar is not seen by this witness. As per the say of the witness he has seen Noori and Aaiyeshaben lying dead in Abdul's house and also saw Kadar's dead body, he has done nothing regarding the dead bodies nor he has stated anything before the police when the police came to rescue him. It is also admitted in the cross examination by the witness that till they went for the treatment in Umreth Hospital, they have not named any Hindu before anybody. Even before doctor they have not

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    stated any names. As such after 8 years the witness has stated new thing which can not be believed. In the cross examination on page-10, para-12, it is stated by the witness that Abdulbhai's house was having one door which was of tin and iron. That door was closed by persons from the crowd. It is admitted that if any person is standing in the Osri than it can not be seen from Shiv Sadan. It is also admitted that from Jayeshbhai's house or Ratansinh's house inner portion of Abdul's house can not be seen. It is also admitted that if anybody is standing in Rehana's balcony then it can not be seen from Shiv Sadan or Jayeshbhai's house. As regarding topography of Abdul's house is concerned, the topography is admitted by the witness in his cross examination. It is admitted that Abdul's residence, Rehana's residence and the witness's residence is of same height and in same line. As such relying upon this aspect it is argued that from Shiv Sadan the three balconies of the three houses can not be seen.

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    As argued by ld. Advocate for the defence whatever is stated in his chief is not in the statement as admitted by the witness and he has stated all the facts contradictory to the statement regarding which the prosecution has not explained anything and so after span of 8 years when new story is brought on record by the witness it can not be believed. Hence the witness is not reliable and his evidence can not be taken in to consideration and it should be discarded.

    Considering the submission raised by the ld. Advocate for the defence I am of the opinion that this witness has deposed as same as that of Idrish and Firoz Ismail Kapadwanjwala. There is a consistency between the witnesses regarding the incident. The only contradiction between the witnesses is regarding the place from where the incident has been seen. This witness has entered into toilet of Noor Mohd.'s house and has seen the incident of

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    Kadar from there. But considering the deposition of all the witnesses first and for most thing which is to be seen is the incident which has occurred regarding the burning of house at that time this witness was in Abdulbhai's house when his mother and other persons were drinking tea and as the house was burnt this witness was also injured. Nooriben and Aaiyeshaben had hid in Abdul's house as per the say of this witness and other witnesses. As per the case of I.O., Nooriben and Aaiyeshaben were in the house of Gafurbhai as per the statement of this witness recorded by the police. But as stated earlier there is faulty investigation done by the Investigating Agency which is challenged by witnesses and hence upon that faulty investigation, benefit can not be given to the accused. As stated earlier also if there is a faulty investigation and if the faulty investigation is challenged by the witnesses then the entire record of the Investigating Officer, the statement of the witnesses becomes doubtful and as principle laid down by Hon'ble

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    Supreme Court in one of the case, statement of witnesses before the police is not substantive evidence but whatever narrated before the court can be said to be conclusive. So here in this case the witness has specifically mentioned that he has seen the accused burning house from the iron grill. No doubt it is a fault of investigating agency while drawing the panchnama to put before the court all the evidence precisely what kind of door was there whether it was an iron grill door, it was a flat door. This Investigating Officer has not considered all these aspect and has not minutely investigated the entire incident and so this type of contradiction and omission has arisen in the evidence. This witness as narrated by him in the deposition has clearly seen the incident while burning the house he has identified the persons and as the mob went away he and other persons went to Noor Mohd.'s house and hid themselves below the staircase from where Kadarbhai who came out, was taken away by the mob and was killed. Even for sake of

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    argument that Kadar's incident must not have been seen but the mob which came, met Kadar outside Noor Mohd.'s house, it can not be said that it was not seen by the witness lying silently below the staircase or in the toilet of Noor Mohd. and thereafter Kadar was burnt alive. So this witness has narrated the incident which is corroborating the other witnesses. As regarding the point of topography is concerned, it is not disputed but that does not mean that the witness has not seen the incident from house of Abdulbhai or from the Noor Mohd.'s residence. After the mob went away burning Kadar, he and other witnesses went to Jayeshbhai's house that means than they were below staircase of Noor Mohd., they have watched Kadar's incident and while in the house of Abdulbhai they have watched the incident of burning the house. It is admitted position that the Otla of all the three houses can not be seen from Jayeshbhai's house or from Shiv Sadan but the outer position i.e. street in which the houses are situated

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    can not be seen is not the case. So merely from Shiv Sadan the Otla or inner portion of the house is not seen it does not mean that the persons in the Shiv Sadan must not have seen the crowd. There is a consistency of witness Rehana, Idrish, Firoz Kapadwanjwala regarding they coming out of burning house and hiding in Noor Mohd.'s house. As such the witnesses are corroborating each other on the point of incident. It is also to be noted that the witness has seen dead bodies of Nooriben and Aaiyeshaben in Abdul's house. No doubt in the investigation the place must have been changed but that does not affect the incident of death of Nooriben and Aaiyeshaben. When the incident occurred naturally it was such an incident which could have created shock in the mind of the witness at that time the witness survived from a dangerous incident and so in that stage of mind it is not possible to go and see as to what is the position of the dead bodies lying in the house of Abdul's house or dead body of Kadarbhai. The priority in

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    the mind of witness would have been is own survival. So not going to see dead body is not a conduct which can be doubted. It is also to be noted that this witness is an injured witness who has taken treatment in Umreth hospital and so his presence at the time of incident can not be doubted. He is a natural witness and so submission raised by ld. Advocate for the defence relying upon the contradiction and omission and new story being told by the witness that this witness is unreliable is not sustainable because presence of injured witness at the time of incident is natural. Hence the witness is trustworthy and reliable.

    As regarding the point of a new fact regarding destruction of body of Kadarbhai is concerned, I do believe the submission raised by the defence because no other witnesses have ever stated the destruction of body by the accused named by this witness as along with this witness Firoz Kapadwanjwala was also there at the same place,

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    hiding himself and both of them were rescued by police. But Firoz Kapadwanjwala has not stated point of

    destruction of dead body of Kadarbhai. Hence to that extent the arguments are sustainable but as stated earlier as when major portion of evidence is believable, a small portion which is not believable can not become a ground to discard entire evidence of the witness.

    (133) PW-37 Firoz Ismail Vora (Matarwala) Exh. 272. This witness has deposed on oath that on 1/3/2002 it was Friday, atmosphere of village was tense. He went to his uncle's house who is Noor Mohd. Rasulbhai and from there he went to bus stand and after some time at 11.30 he went to his uncle's house to take meal. Thereafter he was sitting on the Otla of flour mill and when he came back, his uncle and aunt were not seen. They all had gone to Shiv Sadan so he also went to Shiv Sadan. In Shiv Sadan he saw Yusuf, Aaiyeshaben, Jubeda, Rehana, Idrish, Fakir Gafur, Firoz

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    Kapadwanjwala, his uncle and aunt and Abdul sitting. After some time as Abdul told to have tea, he, Abdul, Aaiyeshaben, Firoz Kapadwanjwala, Fakir Gafur, Nooriben and Idrish they all went to Abdul's house. At 1.30 p.m. to 2.00 p.m. they heard shouts "bandiyaone mari nakho, kapi nakho". As they were drinking tea, Kadar also joined them. The mob broke the cabin near Masjid and than entered the street in which their houses were situated. One person locked the grill door of Abdul and dropped the stand of mattresses and burnt the mattresses pouring kerosene. He saw Accused No. 8, 10, 11, 13, 26, 29, 40 and 41 and Pinal Vinu, Ashok Dahya, Sachin Ramesh, Upendra Vinu, Umesh Dinu, Samir Pidhli. The persons of the mob were having weapons. As the stand was burning, he, his both ears and nose and hands were burnt by the flames. He went inside the house, climb up and after lifting the corrugated sheets he came out of the house. What happened to others is not known to him. He went to Jayeshbhai's house and hid

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    himself on the first floor of Jayeshbhai's house. He heard shouts of Aaiyeshaben stating "Idrish Mane Kadh" and

    Noori was also shouting "help-help". After some time everything was calmed. He thought all the persons of Abdul's house were dead. As he saw from Ratansinh's house window Kadar was surrounded by crowd and Kadar was shouting, hence this witness was afraid he only saw that kerosene was poured on Kadar and as he thought Kadar would be burnt alive he sit inside hearing the shouts of Kadar and after some time cries stopped. After some time when he came down in the Jayeshbhai's compound he met Abdul Yakub, Fakir Gafur, Idrish, Firoz Kapadwanjwala and after some time Yusuf, Jubeda, Rehana, Noor Mohd. and Mariam also came to Jayeshbhai's house from Shiv Sadan. They all hid themselves behind heap of tobacco. Late night the mob again came and after some time he, Idrish, Abdul, Noori, Mariam, Yusuf and Rehana they all came out of Jayeshbhai's compound and saw dead body of Kadar and

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    went away to Shiv Sadan. Whereas Firoz Kapadwanjwala and Fakir Mohd. Gafur remained in Jayeshbhai's house hiding behind tobacco heap. On Sunday, all who are in Shiv Sadan came out of Shiv Sadan early in the morning, seeing Kadar's dead body went to Sureli. In Sureli camp they told that Firoz Kapadwanjwala and Fakir Matarwala were there in Ode. Both were brought by police to Sureli in the evening. On Monday he, Idrish, Fakir Gafur, Firoz

    Kapadwanjwala, Abdul all the five were taken to Umreth Hospital by Yusuf for treatment. Police came on 5th and whatever incident was seen by him was narrated. He remained in hospital for 25 days. The witness has also identified the accused before the court. This particular witness is not residing in vicinity where the incident has taken place and he is residing as a tenant in

    Ghanshyambhai's house. As his wife was not in the village he used to come to his uncle Noor Mohd.'s house for taking meal and the incident occurred on the same day.

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    As regarding the arguments of defence is concerned, it is submitted that the witness has narrated a new story which was not there in earlier statement. Though the statement was read over to him altogether new story has been narrated. Entire deposition in chief is contradictory and full of omissions. It is admitted by the witness in the cross examination para - 10 that it is true that Nooriben and Aaiyeshaben place of incident can not be seen from the top of Ratansinh's house. It is also admitted that place of Nooriben and Aaiyeshaben can not be seen from any part of Shiv Sadan. It is also admitted that from Noor Mohd.'s house inner portion of Abdul, Fakir, Yusuf's houses can not be seen. It is admitted that he sustained burn injuries due to the flame of the mattresses stand. It is also submitted that there is a discrepancy between the evidence of Firoz Kapadwanjwala regarding the witnesses in Jayeshbhai's house. This witness has also not stated as to what happened

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    to Abdul whereas other witnesses has stated that Abdul accompanied him. Contradictions and omissions are asked though denied by the witness, they are proved by I.O. in the evidence Exh. 360. As such it is argued that the witness has stated totally new facts which can not be believed. The facts are also contradictory to other witnesses. Hence it is submitted to discard the evidence.

    Considering the submissions raised by the defence, I am of the opinion that this witness was initially at the residence of Abdulbhai, drinking tea and as discussed earlier this witness has also stated that iron grill door was closed and rags were thrown on the mattresses pouring kerosene in order to burn the house which he has seen from the house of Abdulbhai. No doubt it is fact that he has not stated as to what happened to other persons in the house but that does not affect the factum of incident nor the narration given by the witness. As stated by other witness, Abdul and this

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    witness came out of the house by lifting the tin sheets. However, this witness has not stated this thing but in my opinion it is not a major discrepancy which can create doubt on entire version of this witness. Moreover as meeting of the persons in Jayeshbhai's house is concerned, all the witnesses have stated that they all met in Jayeshbhai's house compound. They hid themselves behind heap of tobacco. It has also come on record through evidence of other witnesses that this witness in the night went away to Shiv Sadan and Fakir Gafur and Firoz

    Kapadwanjwala stayed at Ratansinh's house and they were rescued by the police which is admitted even by the I.O. in his evidence which can not be denied.

    As regarding incident of Kadarbhai is concerned, it is a fact that this witness came out of Abdulbhai's house, went to Jayeshbhai's house and hid himself on the upper floor of Jayeshbhai's house. After the incident of Abdulbhai's house

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    was completed, incident of Kadar has occurred. It is to be noted that house of Jayeshbhai is just opposite the place where Kadar was burnt alive as it appeared from the panchnama Exh. 82 and other witnesses. This witness who was hiding in Jayeshbhai's house upper floor naturally would have seen the incident of Kadarbhai. There is nothing to disbelieve this version narrated in the

    examination in chief because except the house there is nothing in front of the house and the gate is there, place of Kadarbhai is just near the gate of Jayeshbhai's open space. So narration of this witness pertaining to the Kadarbhai's incident is concerned it is well believable. There are minor discrepancies in the evidence of this witness in comparison to the other but the minor discrepancies do not affect the incident or the entire narration of this witness.

    As stated earlier there are loopholes in the investigation carried out by the investigating agency and so whatever as

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    narrated before this court must have been narrated before the I.O. and it is not recorded in its true sense and as such when the allegations are leveled against the investigation, against the statements recorded by the police, after a span of 8 years when the true incident is narrated by the witness in the court, contradictions and omissions are bound to appear. Even if the contradictions and omissions are proved by the I.O. against whom the allegation are leveled faulty and tardy investigation, the omission for and

    contradiction does not shake-up the factum of the incident which has occurred.

    It is also to be noted that this witness has been injured for the sake of arguments even if by the flames which is admitted in cross examination that flames were due to fire in the house and so this witness is natural injured witness of the incident and the submissions of the ld. Advocate is not to the mark shall not be considered that this witness is not

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    reliable, trustworthy or narrating the incident in its true sense. In my opinion evidence of this witness also reliable and trustworthy.

    (134) PW-39, Samir Abdul Vora Exh. 276. This witness is brother of Idrish Abdul Vora, son of deceased Aaiyeshaben Vora. In his deposition he has stated on oath that on 1/3/2002 it was Friday. He went out ot his house. At 9.30 as there was tense atmosphere near Malav Bhagol, he came back and sat on the Otla of flour mill and at 11 a.m. he went to his house to take meal. After lunch he and his nephew Salim Gulamnabi went to Shiv Sadan. After some time his father Abdulbhai and mother Aaiyeshaben came to Shiv Sadan. After some time Abdulbhai had a desire to

    take tea, hence Abdulbhai, his mother, brother all went to take tea. One mob came at 1.45 p.m. shouting "sala bandiyaone mari nakho, kapi nakho". The mob came towards their house. He saw it from the balcony of Shiv

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    Sadan. Mob was having sharp instruments, kerosene cans, burning rags and the mob poured kerosene on their house and set fire to the house. He saw Accused No. 8, 9, 11, 13, 26 and 35 all were having weapons. As he thought that all the persons in house were dead so he along with 2-3 persons of his street jumped from Shiv Sadan and passing through Solabhai Khadki stopped one truck went to Sureli. It is also stated that Noori and Aaiyeshaben were in his house. On 8/3/2002 his statement was recorded. Witness has identified the accused in the court.

    As argued by the defence relying upon the cross examination it is submitted that the witness has not narrated anything regarding the incident of Kadar,

    Aaiyeshaben and Noori as he had gone to Sureli immediately as the mob came. The facts regarding death of Noori and Aaiyeshaben is on the basis of presumption. It is also admitted by him in cross examination that as he was in

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    Shiv Sadan, where the incident of Aaiyeshaben and Noori has taken place is not certain but on basis of presumption he can say. It is admitted that from Shiv Sadan nothing can be seen inside Rehana or Gafurbhai's house. It is also submitted by the defence that till the mob came this witness was in Shiv Sadan balcony has not been stated by any other witness. As per the say of Rehana before all went to take tea, this particular witness had left Shiv Sadan. So at the time of coming of Mob he was not there in Shiv Sadan. In the complaint Exh. 245 filed by Rehana the fact that witness had left Shiv Sadan is clearly mentioned which can not be denied. As such what has happened when the mob came can not be in the knowledge of this witness. Merely this witness is brother of Idrish as such to help the story of his brother and other witnesses this witness has brought up a new story. Hence it is submitted that this witness can not be relied upon.

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    Now considering the submissions of defence I am of the opinion that this witness is also one of the natural witness who has seen the incident. No doubt it is admitted position that whatever is done by the mob whether Nooriben and Aaiyeshaben were killed or not, whether Kadar's incident has happened or not might not have been seen by this witness because as the mob came and started burning house he immediately left Shiv Sadan and went to Sureli. But seeing the mob from Shiv Sadan, shouting slogans can not be disbelieved. No where in the complaint Exh. 245 or in the deposition of Rehana it is brought on record that this witness was not in Shiv Sadan or had left Shiv Sadan prior to the incident occurred. So this witness is reliable to the fact that he saw the mob and some persons of mob whom he has identified. Although entire episode of the incident of Nooriben and Aaiyeshaben and Kadarbhai might not have been seen but the fact that the mob shouting slogans coming towards their house can not be denied and for that

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    reason to that extent this witness is reliable though there are contradictions and omissions might have occurred in the deposition of the witness can not be discarded. As such I am of the opinion that this witness is reliable to the extent of seeing the mob.

    (135) PW-47 Razak Abdulkarim Vora Exh. 291. This witness is residing on the southern side of Rehana's house. After Noor Mohd.'s house, there is a wall and on the southern side of Noor Mohd.'s house, first house is of the present witness. He has deposed on oath that on 1/3/2002 it was Friday, it was bandh. All bazars of Ode were closed. He was in his house. Atmosphere was tense. He offered Namaz in his house. At 1.30 to 1.45 p.m., 500 to 700 people crowd gathered at Malav Bhagol chowk as such he was scared. The crowd was shouting and were carrying deadly weapons. Crowd had set fire to shops and Masjid. Crowd was carrying spears, sticks and inflammable articles. He was on the

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    second floor inside his house. The crowd burnt the houses opposite his house and looted the house and were shouting "maro-kapo, salgavi do" He saw the mob from second floor burning the properties. He named Accused No. 8, 9, 11, 12, 13, 14, 18, 24, 25, 26, 30, 32, 36, 37. He has also stated that mob entered the street opposite Masjid and set fire to the house situated in the street. He heard shouts and cries from the street and cries for help. As the mob went on the back side, he and his family members passing through the fields went to Sureli where he came to know after 2-3 days that his cousin brother Kadar, Noori and Aaiyeshaben were burnt alive. It is also stated that after 5-6 days police came to record his statement. In the incident his residence and shops were damaged and he sustained loss of Rs. 5.00 to Rs. 6.00 lacs.

    As per the argument of ld. Advocate on behalf of the defence relying upon the cross examination of the present

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    witness, it is submitted that the witness is not a eye witness to the incident which had happened in the street opposite Masjid. Moreover the incident of Malav Bhagol road towards Masjid is also not seen by the witness and merely to falsely implicate accused in the case the witness has been examined. As per his own deposition he has hidden himself in the house. His house is situated in the southern side of the houses of Rehana, Idrish and Noor Mohd. It is not possible for him to see the corner of Masjid as admitted by him nor the corner of the street opposite Masjid. He has only heard regarding the incident of Kadar, Noori and Aaiyeshaben in Sureli. In the cross examination on para-5 on Page. 4 and 5 it is admitted by the witness that it is true that "Abdul's stove repairing cabin can not be seen from his house". It is also admitted that "the street going towards Masjid also can not be seen through his house". The mob which he has named in his deposition was the mob going from Malav Bhagol

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    Chowkdi to Masjid and the properties which were damaged are from Malav Bhagol to Masjid road. There are contradictions and omissions in the deposition of witness which can not be ignored. From the entire evidence of the witness it is clear that he is not able to see the mob on the Malav Bhagol Masjid road. Hence it is submitted to discard the evidence of the present accused.

    (136) PW -48, Maheboob Abdulkarim Vora Exh. 292. He is brother of PW-47 residing on the same place where PW-47 was residing. As per his deposition on oath it is submitted that his house is situated on Malav Bhagol near Natu Sata's house. He along with his family and father was residing on the second floor, Aliji, his wife, his brother and Kadar was staying on the first floor and ground floor was used as store room. On 1/3/2002 it was Bharat Bandh, bazar were closed and they were all in their house. Atmosphere was tense. As such they offered Namaz in the residence. At 1.30 to 2.00

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    p.m. there were loud shouts in the bazar. As such he was scared. At that time 500 people crowd came to Malav Bhagol area and were shouting "bandiyaone maro, kapi nakho". They were having kerosene and inflammable items and deadly weapons and petrol pouch. The mob came towards Masjid and started burning houses on the road. He saw Harish Vallabh, Bhavesh Kanchan, Kirit Manu, Prakash Jamnadas, Vasant Punam, Ritesh Arvind, Dilip Ranchhod, Vinu Ranchhod and Naresh Soma, Tapu Garagewala, Ankur Shapurbhai who are not before court are identified. The mob was burning the shops and houses on Malav Bhagol road and after that the mob entered in the street opposite Masjid and went towards Abdul's house where he heard cries. As the mob was not towards their side he along with others left their houses and went to Sureli. His brother's cycle shop, his general store and electrical shop was burnt and the house was damaged. The witness identified accused NO. 8, 9, 12, 13, 18, 26, 30, 32 and 35. Police came to Sureli

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    Camp and recorded his statement after 4-5 days.

    With regards to the cross examination it is argued by the defence that the present witness and Razak were at the same place at the same time. The evidence of witness is not helpful to the prosecution. Witness has deposed totally contradictory to his statement. Contradictions and

    omissions are proved and the deposition of C.P.I. Mr. Bhuva and it is also brought on record that the witness has stated the various fact that his statement is not recorded by C.P.I. Mr. Bhuva. The entire evidence of present witness is contradictory to his statement recorded in 2002. Though his statement is recorded by C.P.I. Mr. Bhuva, this witness has denied which shows that the witness has no respect for truth. Hence it is submitted to discard the evidence of this witness.

    (137) PW-49 Aliji Ismail Vora Exh. 293. This witness has also

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    seen the incident from the place where the witness No. 47 and 48 has seen. This witness is residing on the first floor of the same house of Maheboobbhai. As per his deposition on oath it is stated that on 1/3/2002 it was Friday and bandh call was given. He was at his house. Bazars of Ode were closed. As the atmosphere was tense, he had not gone to offer Namaz and was at his house. At 1.30 to 2.00 p.m., 100 to 200 persons mob came from Bazar side and started setting fire to the shops and houses on the road and were shouting "mari nakho, kapi nakho bandiyaone". As such as he was scared he and his family went on the second floor of the building and from there he saw the mob carrying deadly weapons, petrol pouch, kerosene and were setting fire to the houses in the line of Masjid. The mob entered the street opposite Masjid towards residence of Abdul. He heard shouts of help from their street. At that time he and his family members left the house passing from the fields left for Sureli. It is also stated that Kadar was his brother,

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    he was sitting in the Masjid, he did not come back to the house. The mob was burning the houses on the road opposite his residence. He saw the mob in which he had identified Accused No. 23, 32 and 35. Police recorded his statement in Sureli camp. As per his say Kadar was burnt alive in the incident.

    As submitted by ld. Advocate for the defence relying upon the cross examination it is stated that the witness is a real brother of Kadar. He is an interested witness. He has stated contradictory version. Whatever he has stated in his

    statement is not brought before the court. He has submitted in his cross examination that whatever is stated in the chief is not stated before C.P.I. Mr. Bhuva. As such he has totally brought the new story in the court. There is no reason to bring the new story on record. As per his statement he was residing on the first floor whereas on the ground floor Razak was residing and on the back side of

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    Razak's residence, Kadar and Amina were residing which is denied and omitted by the present witness but it is proved in the evidence of the I.O. In the cross examination it is admitted by him that the mob which was coming from Bazar side and going towards Masjid were shouting. As such they were scared and so they went away to Sureli via Bajipura from the back side of their house. The contradictions are also brought on record. It is denied that whomsoever he has named in the deposition are named for the first time. As such it is submitted on behalf of the defence that considering the entire evidence of the present witness, the witness is not trustworthy and reliable. He has not seen the incident and merely to corroborate the evidence of other witnesses and to falsely implicate accused, has given the evidence which can not be considered and is ought to be discarded.

    (138) PW-55, Altaf Safi Mohd. Vora Exh. 307. He is son of Safi

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    Mohd. Vora residing next to the house of Abdulkarim Vora. He is rixa driver. As per his deposition on oath he has stated that on 1/3/2002 it was Bharat bandh and was Friday. He was in his house. Bazars were closed. As the atmosphere was tense it was decided to offer Namaz in the house. At 1.30 to 2.00 p.m. as atmosphere was found to be tense, he and his family members went to the second floor and stayed in the house of Abdulkarim and sit inside. The commotion started and 400 to 500 people mob shouting "kapi nakho, mari nakho, bali nakho" came from Malav Bhagol towards Masjid carrying dharia, cans, petrol pouch, spears. The mob started broking the shops and houses on the road situated on both the side of Malav Bhagol Masjid road and setting fire to the properties. At that time on the corner of Masjid, Abdulkarim's cabin was also set on fire. The mob dragged the cabin on the road towards

    Saburbhai's house and set fire which was seen clearly from Abdulkarim's house and at that time he recognized the

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    accused Bhavesh Manu was having hammer in his hand, Tapu Garagewala was having sword, Arun Mukh was giving petrol cans to all, Ankur Shapurbhai was instigating the mob to set fire to the properties and others were Prakash Jamnadas, Harish Vallabh, Minesh Punam, Vasant Punam, Bhavesh Kanchan, Samir Bhikhu, Kanti Mana, Ashok @ Kaliyo, Ritesh Arvind, Kirit Manu, Chhotu Rama, Umesh Punam. Mob went in the street to wards Abdul's house where he heard cries for help. As the crowd had gone to the back side he told his father to leave from the house and his family left away and he was following them. At that time on the road Bhavesh Kanchan met him and gave him the blow of fist and Tapu Garagewala tried to assault him with sword. At that time he ran away and hid himself in fields and at 10 O'clock in the night he went to Ajitbhai's farm house there one Rixa and Track were lying and he went to Bajipura in the Tracks. In the incident his rixa was also burnt which was returned to him in burnt condition by

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    the police. He has identified all the accused in the court. His statement was recorded at Bhalej.

    As submitted by ld. Advocate on behalf of defence relying on cross examination it is stated that after the incident his statement is recorded and as per his statement he was in his house and as there was commotion and the properties in the line of Masjid were broken down by the mob he was sitting in the house closing the door. As the mob came near his house he made a big hole in the back side of his house and he and his family members ran away. The witness has narrated entire new story in his deposition. Witness No. 47, 48, 49 has not stated anything regarding setting fire to Abdulkarim's cabin and seen by them whereas particular witness has brought a new theory of breaking the cabin near Saburbhai's house and set fire to the cabin and there he saw the mob and identified the persons which can not be believed. It is an improvement

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    which is very important to scrutinize the entire evidence of the witness and the condition which was prevailing at the time of the incident was such that it would have been safe to leave when mob was shouting and as such naturally people were looking to save their lives and this person instead of saving the life of his family and himself has entered in house of Abdulkarim which can not be believed. The incident which happened on the road with Bhavesh Kanchan is also not believable. This witness is intelligent witness knowing the procedure of police. He is working in All India Crime Bulletin, as he is in very much near to Idrish. It is admitted in cross examination para-21 that whatever names stated before the court were stated before the police. The statement is not read by him. It is also admitted that whatever was asked by the police he has replied and whatever he replied was written by police and thereafter police was asking another question which was replied and written. As such it is also admitted that

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    after question-answer was over his statement was over. Till today he has not felt that his statement is not recorded according to his own version. Whatever was stated in statement is stated before the court. He does not know today what was written in the statement. It is denied by him that he has deposed according to his own statement that means it is admitted in one sense that whatever is not written in the statement is deposed. It is also admitted that his mother and sister were there with him at Sureli. In police statement he has not mentioned as to which person was having which weapon. It is also admitted that if Abdul's cabin would not have been brought on road he would have not seen. It is also admitted that he was knowing at the time of statement that Abdul's cabin if was not brought on road he could not seen. It is denied that Abdul's cabin was brought on road was not mentioned in the statement. It is also admitted in the cross examination that he has not

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    mentioned names of the persons before anybody. Relying upon the evidence it is argued by defence that the witness is not telling truth before the court. His evidence can not be believed as he has submitted things totally

    contradictory to the submission and has omitted material facts. As such it is prayed to discard the evidence of the present witness.

    (139) As discussed above all the four witnesses 47, 48, 49 and 55 have stated whatever they have seen from the second floor of Abdulkarim's house that means all the witnesses as it appears that as they heard the shouts kill the persons "mari nakho, kapi nakho" they were all scared and they all gathered on the second floor of the building. Now one important aspect which is to be seen is it is a natural conduct of a person that when a mob is gathered shouting to kill persons, cut persons, burning the properties, no prudent man will ever dare to go forward and see as to

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    who is there in the mob. Whereas the version of all the witnesses they have seen the mob from the second floor of the building. They have identified the persons from the second floor. It is not possible to view any incident while sitting in the house. This can not be denied on any count. Atleast to see any incident or anything one has to come outside the room either in the balcony. It is not a case of the witnesses that they have seen the incident from the window of the second floor so it can be made out that the witnesses have watched the incident by coming in the balcony of second floor. This conduct of witnesses as per their version is an unnatural conduct. As stated above no person will dare to come forward to let the persons in the mob to see him while seeing the mob. The person at the time when the atmosphere prevailing he will try to hide himself. Whereas these witnesses have as per their version seen the incident of arsoning and seen the mob which can not be believed in such a situation.

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    Now as regarding the seeing of the mob is concerned from the evidence of all the four witnesses it is a fact which has come out that they have not seen any mob doing anything in the street where Rehana's house is situated. But whatever they have stated is regarding the mob on the Malav Bhagol Masjid road. Whether from the second floor of Abdul Karim's residence the road can be seen if yes, whether mob can be seen, if no than entire story of the witnesses is false. This aspect of seeing the mob is to be scrutinize carefully and cautiously.

    Perusing the cross examination of Razak, it is admitted fact that Abdulkarim's residence is having ground floor plus two floor. It is also come on record in evidence of Razak that when the mob was moving on the road he and his family members were inside the room of second floor. The topography of the house of Abdulkarim is to be seen at

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    this juncture. It can not be denied that the houses of Abdulkrim, Rehana, Fakir Gafur and Noor Mohd. Ismail are in one street and in one line and there is a narrow lane of 5' and beside that lane on eastern side is the back side of the houses which are situated opposite their house whose doors are on the main road. The same is the topography of Abdulkarim's house because it is just adjoining to the house of Noor Mohd. Rasul on the southern side and on the eastern side of the house of Abdulkarim are houses facing towards the road and back side towards

    Abdulkarim's house. As per the cross examination of Razak PW-47, it is admitted that it is true that in the front side of their house on the eastern side there is line of six houses. The main door of the houses are opening towards Malav Bhagol Masjid Main road whereas the back is towards his door. It is clearly admitted that "it is true that all the houses situated on the eastern side of his house i.e. opposite to his door are two storey or three storey

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    building". It is also admitted that it is true that "if in his house anybody is standing in any portion, Malav Bhagol can not be seen", although he has denied that Malav Bhagol to Masjid road area can not be seen from his house. He has voluntarily stated that half road is seen. It is admitted by him that from his house cabin of Abdulkarim situated on the corner of the Masjid can not be seen. It is also admitted that the street going towards Masjid can not be seen. It is admitted that the names which he has given is of the mob going on Malav Bhagol Masjid road and the damages caused to the properties are situated on Malav Bhagol Masjid road.

    Now regarding this aspect of building situated opposite house of Abdulkarim is concerned, it is denied by Maheboobbhai PW-48 that Malav Bhagol Masjid road can not be seen from his house. It is denied contradictory to Razak's admission that the houses situated on the eastern

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    side of his house are of 2 to 3 storey. So on the aspect of the houses situated on the eastern side once it is admitted by Razak that all the houses situated on the eastern side facing towards the road are 2-3 storey building, this aspect is denied by this witness, his own brother as it may have come to the knowledge that if this topography comes on record, it is not possible for them to say that they have seen the mob. So this contradiction between two witnesses on the point of the building situated on the eastern side is very important which can not be ignored. Now, regarding the situation of the building on the eastern side is concerned, witness PW-55 Altaf has again improved in his version. In the cross examination it is admitted that people were living in the house situated opposite his house. Some of the houses were 2-3 storey is denied. It is voluntarily stated by the witness that two houses are of two storey and two are of ground floor. As such taking the evidence of all the three witnesses 47, 48 and 55 once Razak has stated

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    firmly regarding all the houses situated opposite his house facing on the road of 2-3 storey, the rest of the witnesses has denied and has improved new facts. Hence this important contradiction of the witnesses creates a doubt regarding the buildings situated opposite the house of the witness. But one thing is clear that the cabin of Abdulyakub can not be seen from Abdulkarim's house and to bring the fact that mob has been seen PW-55 has improved the incident that the mob dragged the cabin of Abdulkarim, brought it near Saburbhai's house and burnt it which was clearly seen from Abdulkarim's house and he saw the mob and identified them over there. This is an improvement afterthought which is not narrated by any other witness and admittedly when the cabin is not been able to viewed from any part of Abdulkarim's house just to bring the reality to the incident about the mob and the persons in the mob the cabin is brought near Saburbhai's house which can not be believed. As this is an afterthought of the

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    witnesses and an important improvement just to falsely implicate a mob and identify the persons. If for sake of arguments it is believed that Altaf saw the mob near Saburbhai's house, nowhere in the evidence of other witnesses 47, 48, 49 it has come on record that from where they have seen the mob exactly on the road. Hence the new fact stated by Altaf clearly establishes the fact that all the four witnesses have tried to bring out a totally new story contrary to their statements and have tried to falsely implicate more and more persons to make the incident more serious.

    As regarding the incident on the road as alleged by all the four witnesses is concerned to ascertain whether it can be seen from Abdulkarim's house, one witness Noor Mohd. Rasul PW-50 Exh. 296 is an important person who has stated the fact of Abdulkarim's residence on oath in the cross examination by the defence though he turned hostile.

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    He has admitted that from his house Malav Bhagol Masjid road can not be seen. It is also to be noted that his house is pakka house of one story where as house of Noor Mohd. adjoining to him is a two storey. He has admitted that from any part of Abdulkarim's house, Malav Bhagol Masjid Main road can never be seen and he has voluntarily stated that if on the third floor anybody goes then Minara of Masjid can be seen but road can never be seen. This important aspect which is an admission on the part of one witness who is neighbour of Abdulkarim should not be disbelieved and when at the same time admittedly Razak PW-45 has stated that opposite their house on the eastern side facing towards road are houses of two storey and three storey if this aspect if ascertained then there is a line of 5' - 6' in between house of Abdulkarim situated on the eastern side. Considering the house of the eastern side length and width it can not be denied that it can be of atleast 12' to 15' length and so the distance from the door and thereafter

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    the road is there on the front side which can be adjoining to the house. So considering the door of the eastern house till the house of Abdulkarim the distance can be of 20' atleast and so that if anybody move on the second floor of Abdulkarim's house and the opposite building of

    Abdulkarim's house is also of two floor or three floor, never it is possible to view the road which is on the other side of opposite house. So the fact that the witnesses though the other witnesses have denied the topography of the other houses that they have viewed the incident on the road they have seen mob on the road can never be believed and on that aspect the evidence of the witnesses is untrustworthy and unreliable.

    Secondly judging the veracity of the witness is concerned, the witnesses have given in the evidence names of Accused No. 32 and 36. Now it is judicial notice that Accused No. 32 has been involved in an offence registered vide Cr. No.

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    23/2002 of the incident which occurred on the same day at the same time in some other area. As pursis that the accused No. 32 of this case has been sentenced by the other court in that offence has come on record. How come it can be believed that one person can be at the same time at the same place simultaneously. So the fact regarding the involvement of Accused No. 32 by the above witnesses clearly reveals that they have tried to falsely implicate persons.

    At the same time as regarding Accused No. 36 is concerned, it has come in the deposition of one witness Raj Mohd. PW-53 whose property is damaged, he has specifically stated in his deposition that Accused No. 36 Punam Shana was in the marriage with him at Pij and they returned back from marriage at 4.00 to 4.30 p.m. How come one person who is at Pij as admitted by the witness of prosecution can be at Ode at 1.30 p.m. when he has

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    returned at 4.30 p.m. So this aspect also clearly reveals the false implication of accused.

    Whereas at the same time PW-55 has named Accused No. 22 who also as per the evidence of Raj Mohd. PW-53 in the cross examination and as per the admission of the witness No. 53 was in the marriage at Pij and so he has been also tried to be falsely implicated in the incident. Hence as regarding the incident alleged to have taken place by the mob who has been viewed by the witnesses on the main road going from Malav Bhagol to Masjid is concerned it creates a doubt in the mind of this court as to the viewing of the incident judging the veracity of the witnesses. Moreover the contradictions and omissions are brought on record by the defence regarding these witnesses. Though the witnesses have denied the contradictions and omissions in their cross examination but they are duly proved in evidence of PW-64 I.O., C.P.I. Mr. Bhuva. So it appears that

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    the witnesses have tried to bring out a new story regarding the mob on the road of Malav Bhagol to Masjid damaging the properties hence when the road can not be clearly viewed from Abdulkarim's house, evidence of all the four witnesses becomes suspicious and doubtful. Moreover one conduct of Altaf has also seen as per the evidence of his father Safi Mohd. Noor Mohd. PW-52, Exh. 301. He has specifically stated that they were on the third floor of Abdulkarim's house. Mob was burning the shops and houses opposite their house. Who were there in the mob was not known to him as they were hiding themselves in the house and they all went away to Sureli. It is admitted in the cross examination by the witness that when they went to Sureli all the persons in their family had gone to Sureli. So if Safi Mohd. had left the house with his family to Sureli, how come Altaf remain in Abdulkarim's house viewing the entire incident. Hence conduct of Altaf is doubtful. Just to create an evidence he has stated that he was in the house

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    of Abdulkarim viewing the entire incident and seeing the mob and identifying the person. For this reason I am not able to rely upon evidence of above four witnesses.

    As regarding the fist blow by accused No. 30 Bhavesh Kanchan is concerned, this aspect has been mentioned by Altaf in his police statement that while going to Sureli, on the road Bhavesh Kanchan met him and gave him the blow of fist on his face. So this incident is an incident which is not connected with the incident on the main road. In the statement nowhere Altaf had given any description of the incident of main road. But while leaving the house, going towards Sureli, this incident of fist blow has been occurred and this has been mentioned by Altaf in his deposition also. To that effect regarding involvement of Accused No. 30 is concerned, Altaf can be believed. But rest of the evidence as it has been discussed above regarding the incident on the main road is concerned it can not be said that they

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    have viewed the incident, and they have seen the mob, identified the persons. As such PW-47, 48, 49 and 55 are not trustworthy, fully reliable and not truthful. Hence their evidence on the point of seeing the mob on the road and identifying the mob is not considered and discarded to that extent. Before discussing further the evidence regarding

    involvement of the accused, the Government witnesses and point of unlawful assembly is to be evaluated.

    (140) Dr. Sanjay Krushnadas Parekh PW-6 Exh. 93. As per his deposition on oath, he is the Medical Officer who has treated the injured in March, 2002. He was in Umreth Referal Hospital at Medical Officer. On 4/3/2002 at 11.00 a.m., five injured persons came before him with Yadi. He examined them and issued a certificate Exh. 837 A, B, C, D and E. Injury of Idrish Abdul was examined. He was having primary to second degree burn on left hand of circular

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    patch size of 4" X 4" and a blister on the right shoulder. The witness was examined and certificate was issued which at Exh. 94.

    Thereafter he examined Firoz Vora (Matarwala) who was having first to second degree of burns on hands distal to wrist with blister and slough formation of both hands skin and superficial burns on both ear. He issued the certificate which is produced at Exh. 95. Doctor also examined Fakir Gafur Vora who had burn over left part aspect of hands, left dorsum of foot and left shoulder and right shoulder and a blister on index finger of left hand for which he issued certificate which at Exh. 96.

    Doctor also examined Firoz Ismail Kapadwanjwala who had superficial burns on face, burns on right left palm and burn on first to second degree, first formation of left dorsum of foot and shoulder and read charring over lateral thigh left.

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    After examining he issued certificate at Exh. 97.

    Doctor also examined Abdul Yusuf Vora who had first to second degree burn and slough formation of right hand upto wrist CLW of 1.5" which was infected and ulcerated on both foot. The certificate was issued which is produced at Exh. 98.

    It is stated by the doctor that he informed P.S.I. Umreth regarding the inspection of the injured but Yadi was not sent by the P.S.I. In certificate Exh. 94 of Idrish Vora history has been given as alleged history of burns. As all the injured came together, as the history was given by one, he has written the history in one certificate whereas in others he has not written. The injured were admitted in the

    hospital and treated by Dr. Sheth. He has not received treatment papers of Dr. Sheth. Injured were treated in the hospital as per Indoor Register which he knows as per the

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    Indoor Register.

    As in the cross examination some questions regarding the Yadi and the irregularity committed by the doctor has been brought on record. It is admitted that the patient has not told as to how they are burnt. He had asked regarding the history. It is denied that he has not noted as to how the patients are burnt. He has voluntarily stated that in O.P.D. case, he has mentioned as to how the patients were burnt. The O.P.D. papers were sent to Dr. Sheth. It is also tried to brought on record that he has not written as to the reasons of burning. However the witness has voluntarily stated that they are burnt in riots but not noted.

    From the entire evidence of doctor, the irregularity which is committed by the doctor is brought on record. In the entire cross examination nothing has come out that the doctor has not treated the injured or the injured were not

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    before him or the injuries are not burn injuries. It is a fact that the witnesses have not stated the history before the doctor as to what had happened but that does not mean that the witnesses were not burnt. How they have sustained injuries of burns can be used for the line of treatment by the doctor but a doctor can not take part in to investigation. It has come on record in the evidence that all these five witnesses suffered injuries of burns while their houses were set on fire and while saving themselves they have sustained injuries. For three days they were not able to take treatment and on Sunday when they went to Sureli they were directly treated. So it was enough time for formation of infection in the burns and as soon as they got the help on Monday, they were admitted. The entire evidence of doctor has come on record pointing towards the irregularity which is committed by the Medical Officer and the Investigating agency. For that reason the fact that the witnesses were burnt, they sustained injuries, can not

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    be denied. Nothing adverse has been brought on record so as to prove that the incident was accidental or suicidal. Hence, considering the entire evidence of Dr. Parekh, I am of the opinion that thought there are loopholes in the treatment given by Dr. Parekh or irregularity in the record maintained by the Medical Officer the witnesses can not be disbelieved regarding their injuries and their treatment as an indoor patient. So to the extent of injury sustained by the injured that also burns injuries and treated in hospital where their statements recorded and panchnama were drawn, evidence of the doctor supports the case of the prosecution.

    (141) PW-60 Vishalbhai Dhulabhai Exh. 322. This witness was serving as an Executive Magistrate, Anand (Rural) on the date of incident. as per his deposition on oath, he has stated that on 2/3/02 to 13/03/02 as a precautionary measure curfew was imposed in the areas of

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    Ode Nagar Palika and also curfew was relaxed from time to time regarding which various orders were issued by him which are produced on record at Exh. 325 to Exh. 338 and on 13/03/2002 from 5.0 PM onwards curfew was

    completely lifted

    from Ode Nagar Palika area, order of

    which is produced at Exh. 336.

    In the cross examination by defence it is admitted by the witness that before the notification of curfew was issued, there was police firing in Ode, but he has not visited Ode at that time. It is also admitted that the imposition of curfew was declared through mikes by the concerned officers. It is admitted that on 2/3/02 the person who died in police firing, his funeral was taken out and he remained present at that time and no untoward incident occurred during his presence on 2/3/02. It is admitted that on 1/3/02 after 5.00 PM when the curfew was imposed till dtd 3/3/02 morning 8 O'clock, no incident disturbing the peace occurred.

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    In the entire evidence of the witness procedure which had been adopted by the witness regarding imposition of curfew has been brought on record. From the evidence of this witness, defence as per my opinion none had tried to bring on record that when curfew was imposed nobody can move around and there was no possibility of any incident occurred in the evening of 1/3/02 nor possibility of any crowd coming in night to near Abdulbhai's house, but in my opinion when crowd wants to do anything wrong the crowd is not afraid of imposition of curfew or any orders restraining them. Moreover, at the place of incident where Abdulbhai's house situated there was police bandobast, so that anybody can enter in the street opposite masjid is not on record. So, there may be tense condition in the area can not be said that the crowd could not have gone to Abdulbhai's house late in the night to see if anybody is spared, so evidence of particular witness only helps

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    prosecution to bring out the order regarding imposition of curfew in Ode, but is not sufficient to give an inference which is in mind of defence. (142) PW-64 Keshubhai Rambhai Bhuva - Exh. 360 The prosecution has examined Investigating Officer,

    Keshubhai Rambhai Bhuva, Exh. 360 who has carried out investigation as CPI, Anand, under the supervision of ACP Vabang Zamir. The IO has described in detail the whole investigation which is carried out by him, arrest of the accused, release of accused on bail, carrying out

    panchnama, recording the statements of the witnesses in Sureli and first foremost recording the complaint on dtd 5/3/2002, recording statements of the injured in the hospital, collecting certificates, sending muddamal to FSL and to the anatomist and for filing the charge sheet. The contradiction which has arisen in the evidence of hostile witness are brought on record by prosecution.

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    In the cross examination of the witness contradiction and omission which has arisen in the evidence had been brought on record at length by the defence. It has also been tried by the defence that the incident which has been alleged on 1/3/2002 at Malav Bhagol is doubtful. The point regarding police point near masjid has not been properly dealt-with by IO. He has not stated that there was police point near the masjid. The irregularities and lacuna are challenged by the witnessed before the Hon'ble Supreme Court and for that reasons SIT was constituted. In the deposition of IO contradiction and omission are dealt-with. It can not be denied that the incident which has occurred was communal incident and there were riots in many villages at the same time. From the evidence of IO one more thing is affirmed that he had rescued two persons from Malav Bhagol and they were taken in government vehicle to Sureli Camp. As such whatever evidence of K.R. Bhuva given on record is regarding the procedure adopted

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    by him, investigation done by him which is alleged to have been faulty and tardy investigation and so for that reason SIT was constituted.

    Evidence of IO is not to be taken in consideration regarding the involvement of accused or regarding fact of the incident, because even if there is tardy investigation done, the factum of incident can not be denied and even if there is lacuna, accused can not be benefited as per the settled principle of law. (143) PW-65 Himanshubhai Chandravadan Pathak, Exh. 167. He is the witness who is specially appointed for further investigation of incidents occurred in Ode. He has visited the site of offences with Convener of SIT confirmed the earlier investigation. De-watering of Malav well and Sikotar step well to bring out the bones of dead bodies and to carry out the scientific test is done, but nothing fruitful has come forward. He has submitted his report before the

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    Court at Exh. 73. As such considering the evidence of Mr. H.C. Pathak, who has done his work as assigned to him, no new accused are arraigned or new charge sheet has been filed by him. So his evidence is only pertaining to his work done by him.

    (144) Here, it is to be noted that after the prosecution evidence was over and further statement of the accused, the defence has examined one defence witness whose statement was recorded by the SIT, but prosecution has not examined him. So, as a defence witness Mahendrabhai Ambalal Patel is examined at Exh. 465. AS per defence he is the owner of Shiv Sadan where witness Rehana and her father and other witnesses have hidden during the incident. Mahnedrabhai in his examination in chief on oath has stated that property is in the name of him and his two brothers. He had

    purchased the property in 1997. The front portion of the property is on Northern side and back portion is on

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    Southern side and there is an open land behind the building, building is having two doors, they are using the back side of the building. In 1998 Muslim stayed in the open chowk of the building as his house was being constructed and possession was returned back after 20 to 25 days by Satarbhai. After that he had never given the keys of Shiv Sadan to anybody. In communal riots in 2002 no incident of breaking Shiv Sadan or opening Shiv Sadan has occurred. Keys were never given to anybody in 2002. Ode police inquired regarding Shiv Sadan and keys of gate of open chowk of Shiv Sadan and in 2008 SIT inquired regarding possession and keys of Shiv Sadan. It is also stated that in the staircase there are coloured glass fitted from which one can not see through. If the door and gallery are open then only back side locality can be seen. He has never opened doors of back side gallery. He has filed affidavit at the time of bail application regarding Keys of Shiv Sadan.

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    In the cross examination by prosecution of the defence witness, the witness admitted that his brother name is Anilbhai and Ghanshyambhai.In 2002 after 15 days of communal riots he had gone to Shiv Sadan. The back yard of Shiv Sadan is 75' x 45', there is one tap and washing place in the open chowk. There are two floors of the building. He does not know who is Satarbhai, where he is staying, where his house was constructed. he also does not know as to who inquired after the riots. It is also admitted that Ode police inquired from him regarding keys is not mentioned in his affidavit Affidavit as referred in the cross exhibited as Exh. 436. He does not know Rehanaben, Idrishbhai, Firoz Matarwala, Firoz Kapadwanjwala, Fakirbhai Gafurbhai and Abdulbhai. It is also now known to him that Southern gate of Shiv Sadan is having wicked gate. It is admitted that to go on second floor there is staircase and covering the staircase there is a cabin. It is admitted that as

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    the name of Patels came in the riots, in the bail application he filed affidavit at Exh. 466. It is denied that Shiv Sadan building was administered by Ghanshyambhai. All the other facts and suggestions regarding Idrish doing cattle breeding work, fetching milk of cows and buffaloes in the back yard is denied. The suggestion that he has merely to help his community people filed the affidavit is denied.

    (145) Appreciating the evidence of defence witness it is admitted fact that prosecution has not examined the witness whose statement was recorded by SIT. However, this aspect does not create any doubt on the prosecution as it is for the prosecution as to whom they have to examine and whom they have to drop. It is a fact that witness Rehana has

    categorically stated that the keys were lying in their house and Ghanshyambhai kept the keys. Right from the beginning witness have brought down the fact that Rehana, her father and other witnesses have gone to Shiv Sadan,

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    they have hidden themselves in Shiv Sadan. Shiv Sadan was uninhabited building having water tap and Rehana was using tap to washing clothes and position of water tap in washing place is admitted by Mahendrabhai,. There is consistency amongst the witnesses that they have taken shelter in Shiv Sadan and they have seen the incident. Nowhere Mahendrabhai had come forward before the Investigating agency till 2008 to falsify the claim of witnesses nor the investigating agency nor cared to know about Shiv Sadan and to inquire regarding Shiv Sadan, nor they have carried out panchnama of Shiv Sadan, that lacuna on the part of investigating agency can not be said to be hazardous to the witnesses who have emphasized on themselves being hiding in Shiv Sadan. Firstly only in 2008 SIT recorded the statement of Mahendrabhai till then Mahendrabhai had filed only affidavit in proceeding of bail of persons of Patel helping them while seeking bail. Mahendrabhai is not knowing about wicked gate in the

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    back yard on Southern part of Shiv Sadan which has come in the photograph also. Mahendrabhai is not knowing as to whom he handed the keys in 1998. Defence has also not brought Ghanshyambhai before the court clearly showing that Ghanshyambhai has never given keys of Shiv Sadan to Idrish or anybody. Mahendrabhai has from the beginning tried to help the persons of his community firstly in seeking bail and then coming forward to help them in court. Even for the sake of argument it is believed that keys were not given to anybody, it can not be denied that Shiv Sadan was inhabited. Nobody has comeforward and said that

    Ghanshyambhai or Mahendrabhai had come to Shiv Sadan during time of riots in 2002, whereas on the other hand witnesses are consistently stating that they were in Shiv Sadan and they immediately went up stair as the incident happened. In one of the evidence of witness it is admitted that he had broke, open the gate and entered Shiv Sadan, so that aspect is considered then also it can not be

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    disbelieved that witnesses were not in Shiv Sadan. They might have entered Shiv Sadan breaking it open in order to save their lives. Because Shiv Sadan was safer place where they could have hide themselves and they could see incident. So, in later also possibility of witnesses sitting in Shiv Sadan and watching incident can not be denied.

    (146) Further, as discussed above, evidence of defence witness as come on record as if it has been brought only to help persons involved in the incident. He is not natural witness, he has not seen the incident, he also does not know at the time of incident where were the witnesses. Whereas the witnesses are consistent about their statement of hiding themselves in Shiv Sadan. So, in my opinion Evidence of Mahendrabhai as a defence witness is an attempt to brush out the case of prosecution which can not be sustained.

    (147) Before discussing the point of involvement of each accused

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    in the incident and the offence it is desirable to discuss the point of unlawful assembly and the common object. Both the side have cited ruling in support of their respective case. A) In the case of Dani Singh and others V/s State 2004 SC 4570, the Hon'ble

    of Bihar reported in AIR

    Supreme Court has observed that unlawful assembly of definite roles need not be ascribed to accused persons. Unlawful assembly - proof - No proof that some of the accused dissuaded other accused persons from

    committing criminal act or withdrew during course of incident Would constitute by itself step in

    furtherance of ultimate offence - Plea that those accused persons did not commit any overt act - Not of any consequence.

    B)

    In the case of Rajnath V/s State of UP

    reported in AIR 2009 SC 1422, it is observed by Hon'ble

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    Supreme Court, Unlawful assembly - Common object Distinct from common intention - Factors relevant to determine common object.

    'Common Object' is different from a 'common intention' as it does not require a prior concept and a common meeting of minds before the attack. It is enough if each has same object in view and their number of five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted y the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the

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    relevant consideration.

    Unlawful assembly - Common object - Offence which members knew was likely to be committed Word knew - Implies something more than a possibIlity.

    Sec. 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence.

    Unlawful assembly - Proof of some overt act by person constituting it - Not necessary to hold him to be member of unlawful assembly.

    C)

    In the case of Bhupendra Singh and others

    V/s

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    State of U.P. reported in AIR

    2009 SC 3265, it is

    observed by Hon'ble Supreme Court in para-16 that the emphasis in Sec. 149, IPC is on the common object and not on common intention. Mere presence in an unlawful assembly can not render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Sec. 141. Where common object of an unlawful assembly is not proved, the accused persons can not be convicted with the help of Sec. 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Sec. 141. It can not be laid down as a general prosecution of law that unless an overt as is proved against a person, who is alleged to be a members of an unlawful assembly, it can not be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was

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    unlawful and was likely to commit any of the acts which fall within the purview of Sec. 141. The words "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur with it. A common object may be formed by express agreement after mutual consultation, bt that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Sec. 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a

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    particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and their knowledge, possessed by each member of what is likely to be committed in prosecution of their common object which may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Sec. 149 IPC may be different on different members of the same assembly.

    Para-17. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of an assembly is to be ascertained from the acts and language of the members

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    composing it and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful object, the same must be translated into action or be unsuccessful. Under the explanation to Sec. 141, an assembly which was not unlawful when it was assembled may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful ne comes in to existence at the outset. The time of forming an unlawful intent is not material. An assembly which at its commencement or even for some time

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    thereafter, is lawful may subsequently become unlawful. In other words it can develop during the course of incident spontaneously.

    Para-18. Sec. 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Sec. 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the unlawful assembly set out or desired to achieve is the

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    object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Those no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it can not be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the

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    common object, it would generally be an offence which the member of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Sec. 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part but offences committed in prosecution of common object; would be generally, if not always, be within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object.

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    D)

    In the case of Ramesh and others V/s State of (Criminal) 915, Hon'ble

    Haryana reported in SIR

    Supreme Court held Sec. 149 - Common object 0 Has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrenceAppellants variously armed

    including the fire arms assembled at one place and thereafter came in the place of occurrence and started assault together and when protested by the deceased, one of the members of the unlawful assembly shot him dead and some of them caused injury to others - All of them have come and left the place of occurrence together Held; appellants were the members of the unlawful assembly and the common object of which was to commit the murder of deceased - Conviction with the aid of Sec. 149 - Proper and upheld.

    E)

    In the case of State of A.P. V/s Thakkidiram Reddy

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    and others with Edlabhoom Reddy V/s State of A.P. reported in (1998)6SCC 554, it is laid down by Hon'ble Supreme Court that Ss. 149, 148 and 302/149 - Sharing of common object of the unlawful assembly - Proof of some illegal overt act or commission not essential - At dead of night a mob of persons armed with various weapons forcibly trespassing into the house of the deceased after breaking open the door, dragging him out and beating him to death - Held, in the circumstances, each of the accused would be liable for offence committed or he knew was likely to be committed by any of the members of the mob.

    To ascertain whether a particular person shared the common object of the unlawful assembly, it is not essential to prove hat he committed some illegal overt act or had been guilty of some illegal omission in pursurance of the common object. Once it is demonstrated from the facts and circumstances of the given case that he shared the

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    common object of the unlawful assembly in furtherance of which some offence was committed - he knew was likely to be committed - by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test.

    F)

    In the case of Ranbir Yadav V/s State of Bihar

    reported in (1995)4 Supreme Court Cases 392, Hon'ble Supreme Court held that Members of unlawful assembly Proof of specific overt act not necessary - Sufficient if it is proved that the accused persons shared the common objects of the unlawful assembly and in furtherance of those common objects some members of that unlawful assembly committed offences attributed to them Tendency to rope in innocent persons due to party factions should be kept in mind.

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    G)

    In the case of Samshul Kanwar V/s State of U.P.

    reported in AIR 1995 SC 1748, Hon'ble Supreme Court held that Members of unlawful assembly - Rioting between two factions resulting in death of may persons - Many accused - Names of all accused given in F.I.R. - Eye witnesses deposing to their presence at scene of

    occurrence - Specific overt acts also attributed to may accused - Specifying part played by each accused not possible for witnesses where there are several accused Accused who came to the scene of occurrence armed with the lethal weapons in a group and proceeded to participate in the attack held, shared the common object of unlawful assembly namely to attack and kill the members of the opposite party.

    Unlawful assembly - Common object - Inference - Actual participation in attach - Not necessary - Serious rioting between two factions - May deaths - Four of accused

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    arrested at spot - No discrepancies in F.I.R. and evidence of witnesses as regards material particulars about names of accused, weapon used and part played - Evidence of witnesses corroborated by evidence of police officer who was present on spot - Held, every accused was member of unlawful assembly - Was rightly convicted under Ss. 149, 300.

    H) In the case of Yunus Allias Kariya V/s State of M.P. reported in 2003 SCC (Cri.) 341, Hon'ble Supreme Court held that Ss. 149 and 302 - Absence of overt act on the part of one of the accused is immaterial when his presence as part of unlawful assembly is established.

    I)

    In the case of Lalji and others V/s State of U.P.

    reported in 1989 SC 754, it is observed by Hon'ble Supreme Court that Sec. 149 makes every member of an unlawful assembly at the time of committing of the offence

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    guilty of that offence. The section creates a 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 members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He can not put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. The basis of the constructive guilt under S. 149 is mere membership of the unlawful assembly with the

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    requisite common object or knowledge. Thus, once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of sarae assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offence act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. In other words it is not open to the court to acquit members of the unlawful assembly for lack of corroboration as to their participation.

    J)

    In the case of Kaki Ramesh and Others V/s State of

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    A.P. reported in (1994)4 SCC 397, it is observed by Hon'ble Supreme Court that For fastening of liability with the aid of Sec. 149 of the Penal code, commission of overt act is not necessary. This proposition of law is well settled. In the present case the mere fact that only in the course of trial two of the appellants alongwith four others had been named as those who had dragged the deceased out from inside the room, can not create reasonably doubt about these appellants having really done so on the face of clear statement in the FIR as members of the unlawful assembly; who in particular had dragged the deceased was not required to be stated in the FIR.

    (148) Defence has relied upon; A) s State In the case of Markand Naik and ten others V/ reported in 1993 Cri.L.J. 3328, it is observed by

    Hon'ble Orissa High Court in para-12 that Sec. 149 is in the nature of a collective liability for acts done by others, even

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    though the accused may not have himself contributed physically. It fixes vicarious liability of the members of an unlawful assembly for the acts done in prosecution of the common object of the assembly. In fastening constructive liability, the importance of the common object should not be lost sight of. The words in prosecution of common object must be strictly constructed and the offence committed must have a nexus with the common object. The offence committed must be the manifestation of a common object. Only such of the members of the unlawful assembly who were members at the time of commission of offence that are made constructively liable under S. 149. Carrying of weapon will bring a member near the common object, unless it is explained away. Persons present at the spot of occurrence may be made liable even if they did not take part in the beating which was their common object. But, a mere spectator not taking part in the offence is not liable. The section is declaratory of the constructive liability

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    of the member of an unlawful assembly for acts done in prosecution of its common object such offence whih the members know likely to be committed in prosecution of that object. Therefore, not only the manifestation of a common object, but the knowledge for the same brings application of S. 149. There must be material to show that the act complained of was the common object or there was knowledge that if is likely to be committed. Members of an unlawful assembly may have a common object only up to a certain point and not beyond, or that the knowledge possessed by each member, of the offence likely to be committed in prosecution of their common object may not be the same. Accordingly, the effect of Sec. 149 on the members, may be different on different members of the same unlawful assembly. The word 'likely' in the later part of S. 149 makes it clear that clear evidence about knowledge must be led. In order to bring application of S. 149 the following ingredients have to be satisfied.

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    i)

    There was an unlawful assembly as contemplated

    by Sec. 141; ii) iii) The accused was a member of such assembly; He had intentionally joined or continued in that

    unlawful assembly; iv) He knew assembly; v) An offence was committed by a member of the of the common object of the unlawful

    assembly; vi) Such offence was committed in prosecution of the

    common object of the assembly; or vii) As the members of the assembly knew that such

    offence was likely to be committed in prosecution of their common object. B) In the case of Rafikbhai S. Dodiya and others

    V/s State of Gujarat reported in 2008 (1) CACC 655, it is held by Hon'ble Gujarat High Court that Unlawful Assembly - When - Mere presence would not make a person the

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    member of an unlawful assembly. An act or omission would make a person the member o an unlawful assembly.

    C)

    In the case of Musa Khan V/s State of

    Maharashtra reported in A1976 (0) GLHEL-SC 18619, it is observed by Hon'ble Supreme Court that Framing of charge under S. 149/395 - Whether mere innocent presence in an assembly of persons, sufficient to make accused a member of unlawful assembly - ingredients for making offence under S. 395 of IPC - Commission of dacoity by five or more persons jointly - held, no, where in a riot cases although all incidents starting from beginning to end were parts of same transaction, but neverthless they were separate incidents, and some accused were found to be members unlawful assembly at one particular stage but not at another. In these circumstances accused who were not present or who did not share common object of unlawful assembly at other stage could not be convicted for activities of assembly at

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    there stages.

    (149) Relying upon the various principle of law, it is admitted on behalf of prosecution that in this case the unlawful assembly was formed because the object of assembly was to protest against the Muslim community who were responsible for burning the train compartment at Godhra and the Hindu people were so agitated that even on hearing the shout and slogans well instructively join the assembly and share the object of the assembly to cause murder, injuries to the persons and set the properties of Muslim community on fire.

    (150) It has come on record as some of accused person wanted to take out rally which was lawful, but turned unlawful later on. The mob and the crowd which came towards the place of incident were shouting the slogans "bandio ne mari nakho, kapi nakho". This slogan must have been heard by

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    persons and they must have joined the crowd. The slogan were also heard by the witnesses from the distance. The crowd shouting slogan entered in the street where witnesses were residing and there they committed acts of setting houses on fire fully knowing that the persons were residing there and causing intentionally death of persons by burning them alive and injuries to five witnesses. As such the act of the crowd was an act of unlawful assembly as mentioned u/s 141 of the IPC. There was a mass carrying large number of accused in the mob. There is evidence of some other act of the accused. The presence of the accused in the crowd and sharing common object is naturally proved. Looking to the circumstances, incident took place in very small and isolated locality where 7 to 8 families resided. Only the witness remained there and other left their houses. The place of incident remained

    unattended from 1/3/2002 to 6/3/2002. So, naturally it was clear accommodation to the accused to clean up the scene

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    of occurrence. In these circumstances, if offence is committed by any member of unlawful assembly in prosecution of common object such as the member of the assembly knew that the offence is likely to be committed in prosecution of that object every person at the time of committing the offence being a member would be guilty of offence. The common object may be commissioned of one offence while there may be lieklihood of commissioned of another offence, the knowledge where of is capable of being safely attributable to the members of the unlawful assembly. They are a member of such assembly was aware as regards to the likely hood of commission of another offence or not would depend upon the facts and circumstances of each case.

    (151) On behalf of defence it is argued that the prosecution is not able to prove unlawful assembly, nor has been able to prove the accused being a member of unlawful assembly or

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    accused joined assembly intentionally. In the entire evidence the witnesses have identified different different accused, but no witness has stated regarding any overt act of any of the accused at the time of incident. As such merely persons who can be a spectator can not be roped as a member of unlawful assembly. There is no evidence of common object of unlawful assembly proved by the prosecution. No specific allegation has been proved by the prosecution as to who were shouting to kill. No specific allegation as to who poured kerosene, who has set fire has not been proved by the prosecution. More over as regarding Sec. 144 of IPC, no deadly weapon had been recovered from any of the accused. As such Sec. 148 can not be proved. Moreover, invoking Sec. 149 is also not possible in the case, as common object of unlawful assembly is to be proved which is not proved in this case. As such the prosecution can not get any help in proving case by involving Sec. 149.

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    (152) Keeping in mind the ratio laid down in all the citations, on behalf of both the sides and the submission of both the sides, considering the facts of the present case it can not

    be denied that accused as well as witnesses are resident of same village. They are very well known to each other. The incident has occurred in the broad day light at 1.30 PM till evening as such question of identity of the accused persons can not be doubted.

    (153) As regarding motive is concerned, proof of motive is not important if a case is proved from cogent and reliable evidence which is directed in nature. While in a case of circumstantial evidence motive plays important role. Further, considering the present case on hand, it is admitted fact that on 27/2/02 persons of Muslim community Kar Sevaks alive and so on next day 28th

    February, 2002 was Gujarat Bandh and on 1st March, 2002 it

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    was Bharat Bandh. To retaliate as a reaction of incident of 27th February, 2002 other mass riots occurred in all over the State in which present case is one. So, the motive is proved from the evidence in this case which can not be challenged.

    (154) As regarding question of unlawful assembly is to be determined, unlawful assembly is determined u/s 141 of IPC is "an assembly of 5 or more persons having common object specified in five clauses of the said section". Change in the composition in the assembly would not make any difference in the penal liability to be fastened on an individual accused. For fastening such liability on him, it is to be shown that he was member of unlawful assembly at the time of committing of an offence. Thus, assuming there are changes in composition even then it is to be related as single unlawful assembly by reason of the continuity of its activities and identify of object. An accused is liable for guilt for offence if he was present in unlawful assembly at

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    the time of incident, the moment a member disassociate from the membership of the unlawful assembly his responsibility or liability for the acts committed by unlawful assembly thereafter comes to an end. The act of setting

    on fire the houses of Malav Bhagol, particularly houses of witness is an inductive of an intention or atleast knowledge which is necessary to constitute of offence as alleged in case. The death of three persons and injuries to the injured. In the present case as discussed above, it can not ignored that communal riots started as a reaction caused by the belief that Kar Sevaks had been burnt to death by Muslim. Riots are said to be retaliatory action. Therefore, there is nothing surprising if method of burning was adopted for intentionally killing persons, injuring persons or damaging the properties. It does not need any weapon and there is no evidence left behind it. It is easiest way to inflict pain and there is no physical contact between the assailant victims. The various acts such as shouting slogan, burning

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    houses were not committed at the whims of individual members composing the unlawful assembly. It is evidenced on record that setting on fire the houses, cabins, vehicles in Malav Bhagol caused burnt injuries to the injured and deceased clearly specifies common object of unlawful assembly.

    (155) There was no reason for any person from the crowd to go in the street opposite masjid where witnesses are residing. It was not public place for passing and repassing of a person. It is not the say of any of the accused that their presence at particular place was for any other purpose. Further there was no enmity between witnesses and the accused. As such there is no reason witnesses falsely implicate the person involved and setting free the actual culprits. Thus, considering the entire evidence on record common object of the unlawful assembly is clearly proved and established by the prosecution by way of cogent and

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    convincing evidence.

    (156) Now, keeping in mind above settled proposition of law alongwith the facts of the present case and the evidence, it is desirable to discuss involvement of the accused in the crime. In this case initially charge sheet was filed against 37 accused and by way of application Exh. 288 and 345 four new accused were arraigned. As such out of 41 accused one accused No. 25 Arvindbhai Bhagabhai died during the trial of this case. Hence, case against him is abetted.

    (157) The main defence of the accused is mainly based on falsely implication of the accused, secondly witnesses not able to see the incident from where they have alleged to have seen. Considering the entire evidence on record, it is necessary to examine evidence against each accused separately to see whether the evidence of such nature so as to come to a conclusion of involvement of the particular

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    accused in the alleged offence. ACCUSED NO. 1 - KANTIBHAI MANABHAI CHAVDA (158) So far as involvement of this accused in the incident is concerned, PW-24 Yusufbhai Yakubbhai Vora has

    mentioned the name of this accused in his statement dtd 7/3/02, but has not named the present accused in his deposition, nor has identified the accused.

    PW-36 Fakir Mohd. Gafurbhai Vora has also stated his name in his statement dtd 5/3/02, but has not given his name in his evidence nor has identified.

    PW-47 Razak Abdulkarim Vora has given name of this accused in his police statement dtd 8/3/02, but has not identified the accused in the court, nor has stated his name in the deposition.

    PW-55 Altaf Safi Mahommad has stated the name in his

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    deposition and has identified the accused in the court. But, in his police statement on 7/3/02 he has not named the present accused, and the evidence of PW-55 Altaf Safi Mahommad Vora there is doubt regarding as to where and how he has seen the accused in the mob as discussed earlier and for the first time the name of accused is stated by witness in the deposition. No other witness has involved this accused either in the police statement or named the accused before the court. Thus, presence of this accused in the mob is not satisfactorily proved by the prosecution and that he was not in the mob. Thus, it is not proved by the prosecution beyond reasonable doubt that present accused was the member of unlawful assembly.

    It is not in dispute that the accused is resident of village Ode and witnesses are also resident of village Ode, but the only witness identifying the accused No. 1 is PW-55 who is not reliable and trustworthy. Therefore, it is not

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    safe to hold accused guilty merely on the basis of identification of single witness before the court. Hence, it would be appropriate to give benefit of doubt and acquit the accused and so his involvement in the offence or he being a member of unlawful assembly is not established and as such this accused requires acquittal. ACCUSED NO. 2 - RAVJIBHAI MANABHAI CHAVDA

    (159) PW-24 Yusufbhai Yakubbhai Vora, Gafurbhai Vora,

    PW-36 Fakirbhai

    PW-37 Firozbhai Ismailbhai Matarwala,

    PW-39 Samir Abdulbhai Vora and PW-55 Altaf Safi Mahommad. So far as involvement of this accused in the incident is concerned, all the witnesses have stated the

    name of present accused in their police statement, but they have not named the accused presence in the mob in their evidence, nor have identified the accused before the court. As such presence of accused in the mob is not fully established by any evidence. One hostile witness Karimbhai

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    Rasulbhai Vora has named the present accused in court being a member of mob and has also identified the accused in the court. But, considering the entire evidence of the witnesses it is not of the quality which can be relied upon blindly. He has not named the accused in his statement before the police. As such when the witness PW-25 is not wholly reliable merely on his evidence the involvement of the accused No. 2 can not be made out. No other evidence as involvement of the present accused either in the deposition or in police statement. Thus, presence of this accused in the mob is not satisfactorily proved by the prosecution and so reasonable benefit of doubt can be given to the present accused.

    It is not in dispute that accused is resident of village Ode and the witnesses are also resident of Ode. Considering the evidence against the present accused it is not safe to hold the accused guilty. There is no other material on record

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    against the present accused to show his involvement in the alleged offence. so, in presence of anybody pointing out towards the accused he can not be termed as a member of unlawful assembly.

    ACCUSED NO. 3 - JAYANTIBHAI SHANABHAI (160) So far as involvement of this accused in the incident is concerned, PW-24 Yusufbhai Yakubhbhai Vora, PW-36 Fakirhai Gafurbhai and PW-49 Aliji Ismailbhai Vahra has given the name of the present accused in their statements, but have not named the accused before the court, nor have identified the present accused. No other witness has deposed against present accused. No role has been attributed by any witness to this accused. Thus, prosecution has failed to establish that this accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 4 - RAMESHBHAI MANABHAI

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    (161) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about the

    involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused identified by any witness. Thus, prosecution failed to establish that this accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 5 - POONAMBHAI DAHYABHAI TALPADA (162) So far as involvement of this accused in the incident is concerned, PW-21 Idrishbhai Abdulbhai Vora, PW-29 Salimbhai Ilyasbhai Vora, PW-35 Firozbhai Ismailbhai

    Kapadwanjwala, PW-37 Firozbhai Ismailbhai Matarwala, PW-39 Samir Abdulbhai Vora, PW-47 Razak Abdulkarim Vora, all the witnesses have stated name of this accused in the police statement, where as PW-24 has not stated the name of this accused in the police statement, but has given his name in the deposition and identified him with respect

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    to taking away the household kits in tempo. This aspect has not been believed by the court. As such to that aspect the evidence is not to the satisfaction of this court. No other witness either named the accused in the statement nor has given name in the court. Thus, presence of this accused in mob is not satisfactorily proved by the prosecution,nor his involvement regarding taking away the household kit satisfactorily proved. Thus, it is not proved by the prosecution beyond reasonable doubt that the present accused was the member of unlawful assembly or was doing an individual act of taking away household kits.

    It is not in dispute that the accused is resident of village Ode and witnesses also resident of village Ode. Therefore, it is not safe to hold accused guilty on the basis of mere allegation of taking away household kits described by only a solitary witness. Except this there is no other material on record against the present accused to show his

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    involvement in the alleged offence. It would be appropriate to give benefit of doubt and acquit the accused.

    ACCUSED NO. 6 - GANPATBHAI CHOTABHAI CHAVDA (163) So far as involvement of this accused in the incident is concerned, PW-21 Idrishbhai Abdulbhai Vora, PW-29 Salimbhai Ilyasbhai Vora, PW-35 Firoz Ismail

    Kapadwanjwala, PW-37 Firoz Ismail Matarwala, and PW-39 Samir Abdulbhai Vora have named of this accused in their police statement, but have not deposed about the involvement of this accused in the incident before the court, nor is identified by any of the witnesses. Thus, prosecution has failed to establish that this accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 7 - BUDHABHAI SHANKARBHAI PARMAR. (164) As regarding involvement of this accused in the incident is concerned, PW-21 Idrishbhai Abdulbhai Vora, PW-29

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    Salimbhai

    Ilyasbhai

    Vora,

    PW-35

    Firoz

    Ismail

    Kapadwanjwala, PW-37 Firoz Ismail Matarwala, PW-39 Samir Abdulbhai Vora, PW-47 Razak Abdulkarim Vora, PW-55 Altaf Safi Moh. Vora have named this accused in the statement, but has not deposed about the involvement of this accused in the incident before the court, nor they have identified the accused. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has failed to establish that this accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 8 - HARISHBHAI VALLABHBHAI PATEL. (165) So far as involvement of this accused in the incident is concerned, PW-23 complainant Rehana Yusufbhai Vora has deposed presence of the present accused in the mob at the time of incident before the court and has also identified the accused, she has named the present accused in her

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    complaint dtd 5/3/2002.

    PW-21 Idrishhai Abdulbhai Vora has stated in his deposition name of this accused carying the kerosene cane and has also identified the accused in the mob at the time of incident. In the incident of Kadarbhai also this accused is identified by Idrishbhai. Name was stated before the police in police statement by this witness.

    PW-24 Yusufbhai Yakubbhai Vora has named this accused in his deposition about the incident of meeting him alonwith other leaders and thereafter coming in the mob. He has identified accused in the court and has also given the name of this accused before the police.

    PW-35 Firoz Ismailbhai Kapadwanjwala has named this accused in the court and has identified the accused and has also given the name of this accused before the police.

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    PW-36 Fakirbhai Gafurbhai Vora Vora has named this accused in his deposition and has identified the accused. Moreover, he has also named the accused in his statement before the police.

    PW-37 Firozbhai Ismailbhai Matarwala has named accused in he court being member of mob and has identified him and has also named the accused in the police statement. PW-39 Samirbhai Abdulbhai Vora has named the accused in the court and has also identified him as well as he has named the accused before the police in his statement.

    PW-47 Razakbhai Abdulkarim Vora has named the accused in the court and is identified. At the same time he has also stated the name of the accused in the police statement.

    PW-48 Maheboob Abdulkarim Vora has named the accused in the court and has identified him, but no name is

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    disclosed by him in his police statement.

    PW-55 Altaf Safi Moh. Vora has named the accused in the court and has identified him in the court.

    Except evidence of PW-47, PW-48 and PW-55 is concerned, as discussed at the time of appreciation of the evidence of the witnesses, their evidence is not reliable and trustworthy as to the viewing incident and identifying the accused at the relevant time. Whereas the evidence of other witnesses have found to be reliable and trustworthy. The dispute by the defence regarding seeing the incident by the witnesses is discussed while discussing the evidence of the witnesses and it is not significant at this juncture. Thus, considering the over all evidence against the present accused, all the witnesses have identified him in the court by face and has also stated the name before the police statement. Therefore, considering the appreciation of evidence as

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    discussed while discussing the evidence of witnesses presence of this accused in the mob is satisfactorily proved by the prosecution. He was in the mob. Thus, it is proved by prosecution beyond reasonable doubt that present accused was member of unlawful assembly.

    It is not in dispute the accused is resident of village Ode and witnesses are also resident of village Ode. They are known to each other, hence evidence of witnesses can safely be accepted as regards to the involvement of this accused and as discussed earlier the witnesses have seen the accused except PW-47 to PW-49 and PW-55. Nothing can be doubted. Once it is established that witnesses and the accused are very well known to each other, question of making any mistake in identification does not arise. Here in the present case entering in the vicinity where the witnesses resides itself suggest the common object of the mob. There was no reason to enter in the vicinity at that

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    time after assuring the persons that only rally will be taken out and nothing will happen. Therefore, by becoming member of unlawful assembly accused entered in the street where the witnesses residing and the incident of burning houses, burning three people have occurred. The

    participation of the accused in furtherance of the common object of unlawful assembly can not be ruled out. Involvement of the accused is well established from the evidence. No weapon or incriminating article recovered from the accused, but that aspect can not be given much importance if the evidence of identification is established. There is no previous enmity between the witnesses and the accused. There is no reason to falsely implicate the accused keeping a side the real culprit. Therefore, in all

    circumstances the involvement of present accused is made out and he was a member of unlawful assembly and in furtherance of common object of the unlawful assembly he has committed the offence.

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    ACCUSED NO. 9 - VASANTBHAI POONAMBHAI PATEL (166) So far as involvement of this accused in the incident is concerned, PW-23 complainant Rehanaben has named the present accused in the court and has identified and has also named the accused in the complaint Exh. 245.

    PW-21 Idrishbhai Abdulbhai Vora has named the present accused in the incident before the court, has also identified the accused in the court and stated his name in his previous statement of police on 5/3/2002.

    PW-24 Yusubhai Yakubbhai Vora has named the present accused in the court in his deposition and has also identified the accused in the court. He has also stated the name of the accused in the police statement.

    PW-29 Salimbhai Ilyasbhai Vora has named the accused in

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    the court and identified him and has also stated name of the accused in his previous police statement.

    PW-35 Firoz Ismailbhai Kapadwanjwala has identified accused before the court after naming him as a member of mob. He has also narrated name of the accused in his police statement.

    PW-36 Fakirbhai Gafurbhai Vora has named the present accused firstly as a person who came to assure that rally will be taken out alongwith accused No. 8 and thereafter in the mob present accused was there. Witness has also named the accused, identified him and narrated his name in the court.

    PW-39 Samirbhai Abdulbhai Vora has named the accused in police statement, but has not stated anything in his deposition nor has identified him.

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    PW-47 Razakbhai Abdulkarim Vahoa and PW-48 Maheboob Abdulkarim Vora have stated name of the accused in the court, but have not given the name in their police statements, whereas PW-55 has named the accused in the court and has also narrated his name in the police statement.

    Thus, considering over all evidence against the present accused, except PW-47, PW-48 and PW-55 as there evidence is found to be doubtful as discussed and appreciated earlier with regards to the seeing of the incident and mob is discarded. The rest of the witnesses have come with the case regarding presence of the accused at the time of incident. All the witnesses except Samirbhai Abdulbhai have identified the accused and named him in the court. Therefore, considering the appreciation of evidence as discussed earlier presence of this accused in

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    the mob is satisfactory proved by the prosecution. Thus, it is proved by the prosecution beyond reasonable doubt that present accused was member of the unlawful assembly.

    It is not in dispute that the accused is resident of village Ode, witnesses are also resident of village Ode, they are well known to each other, hence question of making any mistake in identification and false implication does not arise. Here in the present case entering in the area where witnesses were residing at the time of incident itself suggest common object of the mob. There was no reason to enter in the area at that time. Therefore, by becoming member of unlawful assembly accused entered in Malav Bhagol area and incident of burning houses, burning three persons, injuring persons have occurred. From the evidence involvement of the accused is well established. No weapon is connected with the accused, but much importance can not be given to this aspect if the evidence of identification

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    is established. There is no previous enmity between the witnesses and the accused. No reason to falsely involve innocent person keeping a side the real culprit. Therefore, in my opinion involvement of the present accused as a member of unlawful assembly in furtherance of common object is clearly made out.

    ACCUSED

    NO.

    10

    LALABHAI

    NILESHKUMAR

    MANIBHAI PATEL (167) So far as involvement of this accused in the incident is concerned, PW-23 Rehana Yusufbhai Vora has stated the name of the present accused in the court and has also identified him, whereas name of the accused is also mentioned in the complaint Exh. 245.

    PW-21 Idrishbhai Abdulbhai Vora has nentioned the name of the accused before the court and has identified the accused. He has also mentioned the name of the accused in

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    his previous statement.

    PW-24 Yusufbhai Yakubbhai Vora has mentioned the name of this accused in the court as well as identified the accused. He has also named the accused before the police in his police statement.

    PW35 Firoz Ismailbhai Kapadwanjwala has named the present accused in the court and has also identified him. Moreover, name of this accused also police in his police statement. given before the

    PW-36 Fakirbhai Gafurbhai Vora has named the accused in the court and has identified him where as his police statement is not having the name of accused.

    PW-37 Firoz Ismailbhai Matarwala has also named the accused in the court and identified him, but has not given

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    the name in his police statement.

    PW-39 Samirbhai Abdulbhai Vora has mentioned the name of the accused in the court, has also identified him and has also given name of the accused in the police statement.

    PW-47 Razak Abdulkarim Vora has named the accused in the police statement, but has not given the name in the court nor has identified the accused.

    No doubt dispute regarding viewing of the incident by the witnesses from the relevant place has been raised on and often by the defence but that is already dealt with in the discussion of evidence.

    Hence, considering the over all evidence against the accused, no doubt some of the witnesses have identified the accused by face and named in the court, but not stated

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    name

    in the police statement, whereas other witnesses

    have identified the accused, named him in the court and also named him in the police statement. Therefore, considering the appreciation of evidence as discussed earlier, the present of this accused in the mob has satisfactory proved by the prosecution and it is proved by the prosecution beyond reasonable doubt that the present accused was member of unlawful assembly. It is not in dispute that the accused is resident of village Ode and witnesses are also resident of village Ode. They are well known to each other. Therefore, evidence of witnesses can safely be accepted as regards to the involvement of this accused and as discussed earlier having seen the accused in mob can not be doubted. As the witnesses and accused are known to each other, question of making any mistake in identifying the accused does not arise. In the present entering in the Malav Bhagol area at the time of incident itself suggest the common object of unlawful assembly.

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    Therefore, by becoming member of unlawful assembly accused entered in the area where witnesses were residing and burning of houses, burning of three people and injuring people have occurred. Therefore, involvement of the accused is well established from the circumstances. No weapon is connected with the accused, but this aspect is not of much importance if the evidence of identification of accused is established. There is no previous enmity between the accused and the witnesses and so no question of falsely involving the innocent person keeping aside real culprit arises. Therefore, considering the evidence in my opinion involvement of present accused as a member of unlawful assembly doing act in furtherance of the common object can not be ruled out.

    ACCUSED NO. 11 - TINO @ MAHESH GOPALBHAI @ RAMABHAI PATEL (168) So far as involvement of this accused in the incident is

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    concerned, PW-23 complainant Rehanaben has mentioned the name of the accused in the court, has also identified the accused before the court and name of the accused is stated in her complaint Exh. 245.

    PW-21 Idrishbhai Abdulbhai Vora has named the accused in the court, has identified the accused in the court and has also stated name of the accused in his previous statement. PW-24 Yusufbhai Yakubbhai Vora has stated the name of the accused in the court and has also identified him in the court and has stated name of the accused in his statement.

    PW-35 Firoz Ismailbhai Kapadwanjwala

    has stated the

    name of the accused in the court and has also stated name of accused in the police statement and has identified the accused in the court and has stated the accused was present in the mob with Chisel.

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    PW-36 Fakir Moh. Gafurbhai Vora has mentioned name of the accused in the court and has identified him, but has not named the accused in his previous statement.

    PW-37 Firoz Ismailbhai Matarwala has named the accused in the court, identified him in the court and has also named the accused in his previous statement.

    PW-39 Samir Abdulbhai Vora has mentioned name of the accused in the court, also identified him and also mentioned name in his previous statement.

    PW-47 Razakbhai Abdulkarim Vahra has mentioned name of the accused in police statement and has mentioned name of the accused in the court and also identified him.

    PW-48 Maheboob Abduklarim Vora has mentioned name of the accused in the court and has identified him, but has

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    not mentioned name in his police statement.

    Except PW-47 and PW-48 whose evidence is not found to be reliable there is doubt regarding them seeing the incident and seeing the mob and identifying the persons. Except these two witnesses other witnesses have identified the accused in the court and named the accused in the court. Except PW-36 and PW-37 who have not named the accused in the statement, they have clearly established presence of the accused. However, no naming the accused before the police can not be a ground to come to a conclusion that PW-36 and PW-37 have not seen the accused as they have named the accused in the court and identified him in the court. It is of importance rather then previous statement. Therefore, considering the evidence as discussed earlier the presence of this accused in the mob is satisfactorily proved by prosecution. He was in the mob and so it is proved beyond reasonable doubt that present

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    accused was member of unlawful assembly.

    It is not in dispute that the accused is resident of Ode and witnesses are also resident of village Ode, they are well known to each other, hence evidence of witnesses can safely be accepted as regard to the involvement of this accused and evidence of witnesses as discussed earlier having seen the accused in the mob can not be doubted, question of false implication and false identify does not arises as there is no previous enmity between the accused and witnesses, nor it is case that accused and witnesses are not knowing each other. There was no reason to enter in the Malav Bhagol area where witnesses were residing, therefore by becoming member of unlawful assembly accused entered in Malav Bhagol area and incident of burning of houses, burning of three people, injuring people have occurred and so accused has participated in furtherance of common object of the mob. The weapon

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    Chisel is connected with the accused, but non recovery of the weapon can not be given much importance. As such involvement of the present accused being a member of unlawful assembly doing act in furtherance of the common object can not be ruled out.

    ACCUSED NO. 12 - MINESHKUMAR POONAMBHAI PATEL (169) So far as involvement of this accused in the incident is concerned, PW-23 complainant Rehanaben has mentioned name of the present accused before the court as a member of unlawful assembly in the mob. Unfortunately, she could not remember face of the accused, she has not identified, name of the accused is given by her in her complaint.

    PW-21 Idrishbhai Abdlbhai Vora has mentioned name of the accused in the court and has also identified the accused in the court. He has also named the accused in his previous

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    statement.

    PW-29 Salimbhai Ilyasbhai Vora has named the accused in the court and has also identified him, whereas he has not mentioned name of the accused in the statement.

    PW-35 Firoz Kapadwanjwala has named accused in the court and has also identified him, but has not named him in the police statement.

    PW-36 Fakir Mahommad Gafurbhai Vora has named accused in the court and identified him, but has not named in the statement.

    PW-37 Firoz Matarwala has named accused in the statement, but has not mentioned him in the court, nor has identified him.

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    PW-39 Samir Abdulbhai has named accused in the police statement, but has not mentioned name of the accused in the court nor has identified him.

    PW-47 Razakbhai Abdulkarim Vora has identified accused in the court, naming him and has also named accused in the statement.

    PW-55 Altafbhai Safi Moh. Vora has named the accused in the court and identified him, but has not named him in previous statement.

    As discussed earlier evidence of witnesses PW-47 and PW-55 has not been reliable to the extent of seeing the incident and identifying the mob, whereas other witnesses of this case, some of the witnesses have not named the accused in previous statement, but has named him in the court and also identified him, whereas unfortunately

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    complainant has not been able to identify the accused, but named him in the court and named in her complaint. As regarding the value of police statement is concerned as stated above, the time and incident took place and the time when statement was recorded, it would have happened that the witnesses were not able to name all the accused in the statement due to condition of shock or panic and whatever collected immediately they must have narrated, or it might have also happened that they might have given the name but must have not been recorded by police. So, merely absence of name in previous statement does not brush out the evidence before the court and so name of the accused in the court and identifying him that is more important.

    As regarding the dispute of witnesses not seen the incident from the place where they have alleged to have been seen is already dealt with at the time of appreciation of evidence. Hence, here PW-24 and PW-21, two witnesses

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    who have named the accused, identified him, PW-23 has also given name of the accused, hence in the case of rioting, identification by atleast two reliable witnesses can be taken in to consideration. Hence, considering the settle principle of law, presence of this accused in mob is proved by the prosecution and it is proved beyond reasonable doubt that present accused was member of unlawful assembly. As per some of the witnesses this accused has also gone with accused No. 8 and other leader to assure witnesses to remain in their house as nothing is going to happen. So, presence of the accused at the time of incident can not be ruled out.

    It is not in dispute that the accused is resident of village Ode and the witnesses are also resident of village Ode, they are very well known to each other, there is no question of mistaken identity, nor false implication as there is no enmity between witnesses and the accused. Incident itself

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    suggest common object of the mob. There was no reason for the mob to enter in the street where witnesses were residing. Therefore, by becoming member of unlawful assembly accused entered in the street and incident of burning houses, mattresses, burning three people and injuring person have occurred. Involvement of the accused is well established, non weapon is connected with the accused but that is not much importance. There is no reason to falsely implicate accused. Hence, from the evidence on record, involvement of the accused as a member of unlawful assembly doing acts in furtherance of the common object can not be ruled out.

    ACCUSED NO. 13 - PRAKASH @ PAKO JAMNADAS PATEL. (170) So far as involvement of this accused in the incident is concerned, PW-23 complainant Rehanaben has named accused in the court and has identified him. No doubt

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    name of the accused is not narrated in the complaint.

    PW-21 Idrishbhai Abdulbhai Vora has mentioned name of the accused in the court and has also identified the accused. Witness has also mentioned name of the accused in his statement.

    PW-24 Yusufbhai Yakubbhai Vora has named accused in the court and has identified him, but has not named him in his statement.

    PW-29 Salimbhai Ilyasbhai Vora has named accused in the court, has also identified him and narrated name of the accused in his statement.

    PW-35 Firoz Kapadwanjwala has named the accused in the court with weapon, has also identified him, but has not given name in the police statement.

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    PW-36 Fakirbhai Gafurbhai has identified the accused in the court after naming him and has also mentioned name in his police statement.

    PW-37 Firoz Matarwala has mentioned name of this accused in the court and has also identified him and has given name in the police statement.

    PW-39 Samir Abdulbhai has mentioned name of the accused in the court and has also identified him and has also narrated name of the accused in the police statement.

    Pw-47 Razak Abdulkarm and PW-48 Maheboob Abdulkarim have named the accused in the court and have identified him, have also mentioned name of the accused in the police statements, whereas PW-55 has named the accused in the court and identified him and has not not mentioned

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    name in his police statement.

    As stated earlier the evidence of PW-47, PW-48 and PW-55 is not found trustworthy to the aspect of them seeing incident and seeing mob and the evidence is discarded, whereas evidence of other witnesses is

    concerned, the witnesses who have identified accused in the court by naming him and not mentioned name in statement of complaint can not be doubted as discussed earlier. Evidence in the court by the witnesses is of more importance than the police statements. As such from the evidence of the witnesses who have named the accused in the court and identified him and considering the

    appreciation of evidence while discussing the evidence of witnesses the presence of this accused in the mob is satisfactorily proved by prosecution. Hence, it is proved by prosecution beyond reasonable doubt that the present accused was member of unlawful assembly.

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    It is not in dispute that accused is resident of village Ode and the witnesses are also resident of village Ode, they are well known to each other and so evidence of witnesses can safely be accepted. As discussed earlier witnesses having seen the accused in the mob can not be doubted, though dispute regarding seeing the accused in mob is raised. There is no enmity between witnesses and the

    accused, nor there is question of false implication of the accused.

    Here in this case entering in the area where witnesses are residing itself suggest the common object of he mob. There was no reason to enter in the area at that time. As such accused has participated and acted in furtherance of common object of unlawful assembly. Involvement of accused is well established, though weapon is connected with the accused, but not recovered does not given much

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    importance. There is no reason to falsely implicate innocent person keeping aside the real culprit. Hence in my opinion the evidence which is laid down reveals the involvement of the accused as a member of unlawful assembly acting in furtherance of the common object.

    ACCUSED NO. 14 UMESHBHAI POONAMBHAI PATEL (171) So far as involvement of this accused in the incident is concerned,PW-21 Idrishbhai Abdulbhai has mentioned name of the accused in the court and has identified him. PW-47 Razak Abdulbhai Vora mentioned name of the accused in the court and has identified him and has also mentioned name of the accused in the police statement. PW-55 Altaf Safi Moh. Vora has mentioned name of the accused in the court and identified him.

    As discussed earlier evidence of PW-47 and PW-55 is not up to the mark which can be said to be trustworthy with

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    respect to the seeing of the mob from the place where they were standing and identifying the mob as such evidence of PW-47 and PW-55 is not reliable. So, only

    PW-21 Idrishbhai Abdulbhai has identified this accused. None of the other witnesses who have seen the incident has identified this accused. So, evidence of PW-21 does not get support of any other witnesses who were with him at the time of incident, whereas as stated earlier evidence of PW-47 and PW-55 is not trustworthy.

    Thus, presence of this accused in the mob is not satisfactorily proved by the prosecution. Thus, it is not proved by the prosecution beyond reasonable doubt that, present accused was the member of unlawful assembly.

    It is not in dispute that the accused is resident of village Ode and witnesses are also resident of village Ode, no specific role has been attributed to the accused by any of

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    the eye witness except PW-21. As per settled principle of law in case of riots as laid down in the case of Chandra Shekhar Bind and others V/s State of Bihar reported in AIR 2001 SC 4024 "when large number of accused participated in incident two witness theory can be adopted and benefit of doubt can be given to accused who has not been identified by more than one witness". Relying upon the above principle, it is hazardous to involve this accused only on the basis of identification by one witness and so it would be appropriate to give benefit of doubt and acquit the accused.

    ACCUSED NO. 15 - ARVINDBHAI MANGALBHAI PATEL (172) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has

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    failed to establish that the accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 16 - MANUBHAI ASHABHAI PATEL. (173) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has failed to establish that the accused was involved incident as alleged by the prosecution. in the

    ACCUSED NO. 17 - NATUBHAI BHAGABHAI PATEL (174) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has

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    failed to establish that the accused was involved incident as alleged by the prosecution.

    in the

    ACCUSED NO. 18 - VINUBHAI RANCHODBHAI PATEL (175) So far as involvement of this accused in the incident is concerned, PW-24 Yusufbhai Yakubbhai Vora has narrated his name in the police statement, but has not identified in the court, nor mentioned his name before the court.

    Pw-47 Razakbhai Abdulbhai has mentioned name of this accused before the court and has also identified him and mentioned name of this accused in the police statement. PW-48 Maheboob Abdulkarim has mentioned name of the accused n the court and identified him, but has not mentioned name of the accused in police statement.

    So far reliability of the evidence of PW-47 and PW-48 is concerned as discussed earlier in appreciation of evidence

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    of the witnesses that it is not possible for the witnesses to see the incident from where they have alleged to have seen the road on which mob was moving. As per appreciation of evidence of both the witnesses road is not visible, hence reasonable doubt had arisen regarding the viewing the incident by the witness, so the evidence of the witnesses is not believed by this court. Hence, as against accused No. 18 nothing has come on record from any of the witnesses who are victim of the incident particularly in the street where witnesses are residing. As such prosecution has failed to establish the involvement of the present accused as a member of unlawful assembly.

    It is not in dispute that the accused is resident of village ode and the witnesses also resident of village Ode. No specific role has been attributed by any of the witness. Therefore, it is not safe to hold accused guilty in absence of cogent evidence. So, involvement of the accused is

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    doubtful and accused is entitled for benefit of doubt.

    ACCUSED NO. 19 - POONAMBHAI DAHYABHAI PATEL (176) So far as involvement of this accused in the incident is concerned, PW-21 has named the accused in the court and has identified him. Except this witness, no witness who has seen incident from Shiv Sadan or from the houses where witnesses resided as stated in fact about this accused. As such relying upon the judgment of Chandra Shekhar Bind and others V/s State of Bihar reported in AIR 2001 SC 4024 benefit of doubt must be given to accused who has not been identified by more than one witness. As such involvement of the present accused is not strongly proved by the prosecution and there is an element of doubt and the benefit of doubt should be given to the accused.

    ACCUSED NO. 20 - CHOTUBHAI RAMABHAI PATEL (177) So far as involvement of this accused in the incident is

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    concerned, PW-21 Idrishbhai Abdulbhai has mentioned name of the accused in the court and has also identified him, but has not given name of the accused in his previous statement. As well as PW-55 has identified accused and named him in the court. Whereas no other witness has named the present accused in the court or identified the accused, nor any role is attributed towards the accused. As stated earlier evidence of PW-55 is not found to be trustworthy and with respect to seeing the mob on the road and identifying the persons. As such only on the basis of deposition of PW-21 this accused can not be held to be involved in unlawful assembly and on the basis of theory of two witness identifying when large number of accused participate in the incident, relying upon only one witness can not be safe and so under these circumstances, this accused is not proved to be member of unlawful assembly beyond reasonable doubt and when identify by only one witness benefit of doubt should given to him.

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    ACCUSED NO. 21 - DILIP @ DIPAK KANUBHAI PATEL (178) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has failed to establish that the accused was involved incident as alleged by the prosecution. in the

    ACCUSED NO. 22 - ASHOKBHAI HARMANBHAI PATEL (179) So far as involvement of this accused in the incident is concerned, only PW-55 has named the accused in the

    court and identified him. Whereas his name is not narrated in the police statement by PW-55. None of the witnesses have named this accused in the court or identify the accused. It is also come on record by way of cogent evidence that this accused was in marriage in Pij and returned back at 4.30 PM, so his false implication can not

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    be ruled out. Evidence of PW-55 is found to be unreliable. As such prosecution has not been able to prove beyond reasonable doubt involvement of this accused being a member of unlawful assembly. As no role has been attributed by any witness to this accused, nor identified by any reliable witness, prosecution has failed to establish that this accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 23 - PIYUSHBHAI BHAILALBHAI PATEL (180) So far as involvement of this accused in the incident is concerned, Pw-24 Yusufbhai Yakubbhai has named this

    accused in the police statement, but has not identified him in the court nor has mentioned his name in the court. PW-49 Aliji Ismailbhai has mentioned name of this accused in the court and identified accused, but has not named accused in his police statement, whereas PW-47 Razakbhai Abdulkarim has mentioned the name in his police

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    statement, but has not named him in the court nor identify him.

    When evidence of PW-47, PW-48 and PW-55 is found to be unreliable and untrustworthy, their evidence can not be considered for involvement of this accused. No other witness has identified present accused in the court nor have named the accused in the court. No role has been attributed towards this accused by any of the reliable witnesses. Thus, prosecution has failed to establish that this accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 24 - SAMIRBHAI BHIKHUBHAI PATEL (181) So far as involvement of this accused in the incident is concerned,PW-47 Razak Abdulkarim has named the

    accused in the court and has identified the accused, but has not mentioned name of the accused in police

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    statement.

    PW-55 Altaf Safi Mohd. Vora has identified this accused in the court, but has not named him before the police.

    As stated earlier evidence of PW-47 and PW-55 has not been found reliable. Except this two witnesses no other witness has named this accused nor have identified accused, nor any role attributed by any reliable witness towards this accused. Hence prosecution has failed to prove the involvement of this accused in the incident as a member of unlawful assembly as alleged by prosecution.

    ACCUSED NO. 25 - ARVINDBHAI BHAGABHAI PATEL (182) This accused is abated as died during pendency of the case.

    ACCUSED NO. 26 - RITESHKUMAR ARVINDBHAI PATEL (183) So far as involvement of this accused in the incident is

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    concerned, PW-21 Idrish Abdulbhai Vora in his deposition before court has mentioned the name of this accused and has also identified him.

    PW-35 Firoz Kapadwanjwala has also mentioned name of this accused before the court and has identified the accused.

    PW-37 Firoz Matarwala has identified accused in the court and has also mentioned his name in the court.

    PW-39 - Samir Abdulbhai Vora has mentioned name of this accused in the court and has identified him.

    PW-47, PW-48 and PW-55 have mentioned the name of this accused in their deposition and have identified the accused.

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    As stated above, evidence of PW-47, PW-48 and PW-55 is not found reliable to the extent of viewing the incident and mob on the road. Whereas the evidence of other witness is found to be cogent and reliable. This accused is identified by four reliable witnesses. As stated earlier, evidence before the court and identification by witness gains much importance than police statement. Thus, considering over all evidence against the present accused, no doubt name of the accused is not mentioned in the police statement, but his name is mentioned in the court and also identified by the witnesses, therefore, considering the appreciation of the evidence as discussed while discussing evidence of witnesses the presence of this accused in the mob is satisfactorily proved by the prosecution. Thus, it is proved by the prosecution beyond reasonable doubt that present accused was member of unlawful assembly.

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    It is not in dispute that the accused is resident of Ode and witnesses are also resident of village Ode, they are well known to each other. As such evidence of witnesses residing in the street where incident took place can safely be accepted as regards to the involvement of this accused and evidence of witnesses as discussed earlier having seen the accused in the mob can not be doubted. As stated above, witnesses and accused are of same locality, known to each other, there is no enmity between them, as such question of false implication does not arises and question of mistaken identity also does not arises.

    Here in the present case entering in the street where witnesses are residing at the time of incident itself suggest the common object of the mob. There was no reason to enter in the street at that time when rally was only to be taken out. Therefore, by becoming a member of unlawful assembly, accused entered in the street and incident of

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    burning houses, mattresses, burning of three people and injuring people with fire occurred. Therefore, involvement of the accused is well established from the above circumstances. No weapon is connected with the accused, but much importance can not be given to this aspect as identification of the accused is established. there is no reason to falsely implicate the accused keeping aside the real culprit. Therefore, from the evidence on record the involvement of the accused as a member of unlawful assembly in the mob doing act in furtherance of the common object can not be ruled out.

    ACCUSED NO. 27 - MANIBHAI BAKORBHAI PATEL (184) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has

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    failed to establish that the accused was involved incident as alleged by the prosecution.

    in the

    ACCUSED NO. 28 - GHANSHYAMBHAI VALLABHBHAI PATEL (185) So far as involvement of this accused in the incident is concerned, PW-36 Fakirbhai Gafurbhai has identified the present accused before the court and has named accused in the court. Except PW-36 no other witness who are reliable regarding seeing of the incident have stated anything against this accused. Thus, presence of this accused in the mob is not satisfactorily proved by

    prosecution. thus, it is not proved by prosecution beyond reasonable doubt that present accused was member of unlawful assembly.

    It is not in dispute hat the accused is resident of village Ode and witnesses are also resident of village Ode.

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    No specific role has been attributed to the accused by any of the witnesses except PW-36 regarding he being a member of mob. Therefore, there is no material on record against the present accused to show his involvement in the alleged offence and it would be appropriate to give benefit of doubt to the present accused.

    ACCUSED NO. 29 - ASHOKBHAI DAHYABHAI PATEL (186) So far as involvement of this accused in the incident is concerned, PW-21 has mentioned name of the accused in the court and has also identify the accused, but has not named the accused in the police statement. PW-37 Firoz Matarwala has also identify the present

    accused in the court and has mentioned his name to be member of the mob while setting fire to the houses where witnesses are residing. Except this two witness no other witnesses have identified this accused. As regarding

    evidence as discussed earlier both the witnesses are natural

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    witness, they are injured witness. Presence can not be doubted at the time of incident and regarding their viewing the incident is concerned it is also discussed at length in the appreciation of evidence.

    Relying upon the case of Chandra Shekhar Bind and others V/s State of Bihar reported in AIR 2001 SC 4024, it is observed by Hon'ble Supreme Court that when large number of accused have participated in incident two witness theory can be adopted. Conviction of accused who are identified by two witnesses were maintained. More so when presence of these two witnesses seeing can not be denied and there is no reason why they should falsely implicate accused and accused is known to witnesses.

    As such relying upon the judgment, considering the evidence and the evidence of both the witnesses are found to be reliable and considering appreciation of evidence

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    presence of the accused in the mob is satisfactorily proved by the prosecution. Thus, it is proved by the prosecution beyond reasonable doubt that present accused was the member of unlawful assembly.

    It is not in dispute that the accused is resident of village Ode and witnesses are also resident of village Ode. They are known to each other, hence evidence of witnesses can safely be accepted as regards to the involvement of this accused. Evidence of witnesses as discussed earlier having seen the accused in the mob can not be doubted at all. Question of any mistaken identity arises. It is not possible to hold false implication of accused, when there is no enmity between the accused and witnesses. Here in the present case entering in the area were witnesses were residing at the time of incident itself suggest common object of the mob. There was no reason to enter in the street where witnesses were residing. Therefore, by becoming a member

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    of unlawful assembly accused entered in the street and question of burning houses, mattresses and burning alive three people and injuring witnesses have occurred. As such accused has participated in furtherance of common object of the mob. Therefore, involvement of the accused well established from the evidence. No weapon is connected with the accused, but much importance can not be given to this aspect if the identification of accused is established. There is no reason to falsely implicate accused keeping aside innocent culprit. Thus, considering the entire

    evidence, it is proved that the accused was involved as a member of unlawful assembly and has committed act in furtherance of the common object.

    ACCUSED NO. 30 - BHAVESHKUMAR KANCHANBHAI PATEL (187) So far as involvement of this accused in the incident is concerned, PW-47 Razak Abdulkarim has mentioned name

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    of the accused in the court and has identified him.

    PW-48 Maheboob Abdulkarim has mentioned name of the accused in the court and identified him and has also stated the name in the police statement.

    PW-55 Altaf Safi Mahommad has named accused in the court and has also identify him and has also mentioned his name in the police statement.

    As discussed earlier the evidence of PW-47,PW-48 and PW-55 has not been reliable and trustworthy to the extent of seeing mob from the place where they have alleged to have been seen and the fact regarding mob on the road and identifying the mob has not been relied upon, but evidence of PW-55 to the extent of this accused intercepting him while going to Sureli and assaulting him with Fist blow has been accepted as it is supported by his

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    police statement also. Thus, considering the evidence on record involvement of the present accused in no manner is made out as a member of unlawful assembly, committed act in furtherance of the common object, but to the extent of assaulting PW-55 while going to Sureli is a criminal act for which individually this accused is liable. Thus,

    involvement of this accused for assaulting witness PW-55 is made out.

    ACCUSED NO. 31 - GHANSHYAMBHAI SHANKARBHAI PATEL

    (188) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has failed to establish that the accused was involved in the

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    incident as alleged by the prosecution.

    ACCUSED NO. 32 - DILIPBHAI RANCHODBHAI PATEL (189) So far as involvement of this accused in the incident is concerned, PW-24 Yusufbhai Yakubbhai has mentioned his name before the court and has identified him, he has named him in the police statement. Whereas PW-47 Razak Abdulkarim and PW-49 Aliji Ismailbhai have mentioned name of the accused before the court, though they have not stated the name in their police statements.

    As discussed earlier evidence of PW-47 and PW-49 is not found reliable and trustworthy. Moreover, while

    appreciating the evidence it has been concluded that they have falsely implicated accused No. 32. It is pertinent to note that this accused is found guilty in other incident of the same village in some other area on the same date, as of this incident and at the same time as of this incident. It has

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    been revealed from the pursis that the accused is convicted in Session Case No. 45/08. As such it can not be ruled out that this accused is implicated in two cases simultaneously for the same act committed in one offence of the same nature. His presence in that offence is established. So here in this case presence of the accused as identified by PW-24 can not be said to be established. Thus, involvement of the present accused when evidence of PW-47 and PW-49 is not reliable, only on the basis of evidence of Yakubhbhai which also created doubt regarding presence of the accused at the time of incident can not be considered. Hence, prosecution has failed to establish the involvement of the accused as a member of unlawful assembly beyond reasonable doubt. No other reliable witnesses have named this accused in the court or has identified him. As such merely on the basis of say of one witness accused can not be considered as involved in act as a member of unlawful assembly. So, benefit of doubt is to be given to the accused

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    regarding his presence at the time of incident. ACCUSED NO. 33 - SUJITKUMAR HARISHBHAI PATEL (190) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has failed to establish that the accused was involved incident as alleged by the prosecution. in the

    ACCUSED

    NO.

    34

    PINTU

    RAGHUVEER

    CHANDRAKANT PATEL (191) So far as involvement of this accused in the incident is concerned, none of the witness has deposed about involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution has failed to establish that the accused was involved in the

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    incident as alleged by the prosecution.

    ACCUSED NO. 35 - KIRITKUMAR @ BODIYO MANUBHAI PATEL (192) So far as involvement of this accused in the incident is concerned, PW-21 has mentioned name of the accused in the court, has also identified him in the court. PW-35 Firoz Kapadwanjwala has mentioned mentioned name of the accused in the court and has also identified him.

    PW-39 Samir Abdulbhai has also mentioned name of the accused in the court and has identified him.

    Pw-48 Maheboob Abdulkarim has mentioned name of the accused in the court and identified him and has also mentioned his name in the police statement.

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    PW-49 Aliji Ismailbhai has mentioned name of the accused in the court and has identified him in the court, whereas

    PW-55 has mentioned name of the accused in the court and identified him.

    So far as evidence of PW-48, Pw-49 and Pw-55 is concerned, as discussed earlier their evidence is not reliable and is not trustworthy. But, three reliable witnesses have identified the accused naming him before the court. As such relying upon the principle laid down in the case of Chandra Shekhar Bind and others V/s State of Bihar reported in AIR 2001 SC 4024, when large number of accused have participated in the incident it would be prudent to adopt two witness theory and where more than one reliable witness has identified the accused involvement of the accused can not be ruled out.

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    Considering the over all evidence against the present accused, accused is identified by face and name in the court, therefore considering the appreciation of the evidence presence of the accused in the mob is

    satisfactorily proved by the prosecution. Thus, it is proved by the prosecution beyond reasonable doubt that present accused was the member of unlawful assembly.

    It is not in dispute that the accused is resident of village Ode and witnesses are also resident of village Ode. They are known to each other. Hence, evidence of witnesses can be relied upon with regards to the involvement of the accused and evidence of witnesses as discussed having seen the accused in the mob can not be doubted.

    As the accused and witnesses are known to each other, there is no question of mistaken identity nor there is

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    enmity between witnesses and the accused. Hence, false implication can not be considered. Here in this case

    entering in the street where witnesses are residing itself suggest common object of the mob. There was no reason to enter in the street, therefore by becoming a member of unlawful assembly accused entered in a street and incident of burning houses, burning mattresses, burning of three people and injuring people have occurred. Accused has participated in furtherance of common object of the mob. Therefore, the involvement of the accused is well established. No weapon is connected with the accused, but much importance can not be given to this aspect. As such there is no reason to falsely implicate the accused keeping aside real culprit. It is proved beyond reasonable doubt that the accused being a member of unlawful assembly has acted in furtherance of common object and his

    involvement therefore can not be ruled out.

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    ACCUSED NO. 36 - POONAMBHAI SHANABHAI PATEL (193) So far as involvement of this accused in the incident is concerned, except witness PW-47 no other witness has named the accused before he court nor in the police statement. The evidence of PW-47 is not found to be reliable.

    At the same time it is to be noted that it has come on record by cogent evidence that accused No. 36 was in marriage at Pij and returned back at 4.30 PM on the date of incident. This aspect is not challenged by prosecution in any manner. As such possibility to falsely implicating he accused can not be ruled out. Hence, from the entire evidence, it is not proved that accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 37 - DINESHBHAI PARSOTTAMBHAI PATEL

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    (194) So far as involvement of this accused in the incident is concerned, except PW-47 Razak Abdulkarim, no other witness has identified the accused in the court or mentioned his name before the court in police statement. As stated above evidence of PW-47 in respect to the seeing the incident of mob moving on the road is not reliable and trustworthy. As such prosecution has failed to establish this accused was involved in the incident as alleged by the prosecution.

    ACCUSED NO. 38 - BHAVESHKUMAR MANUBHAI PATEL ACCUSED NO. 39 - BIPIN MANIBHAI PATEL ACCUSED NO. 40 - SURESH @ SOMAIYA CHUNILAL SOMAIYA ACCUSED NO. 41 - SURESH @ TATO RANCHODBHAI PATEL

    So far as involvement of above accused is concerned,

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    accused no. 38 is identified and named in the court by PW-21 and PW-55. Accused No. 39 is named by PW-21 in the court and identified and named by PW-35 and identified by him in the court and he has also named and identified by PW-36 in the court. Accused No. 40. His name mentioned in the court and identified by PW-21, PW-35, PW-36 and PW-37. Accused No. 41. His named is mentioned and identified by PW-21, PW-35, PW-36 and PW-37.

    (195) As regarding discussion of evidence against above four accused is concerned, it is discussed in detailed regarding implication of above four accused. It is to be noted that no names of the accused were ever mentioned by the above witnesses in the police statement right from 2002 till constitution of SIT in 2008 and the evidence of the witnesses in 2020 no witness had ever gone to SIT to give name of the above four accused and for the first time

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    names of the accused disclosed in the court alongwith identification and they were joined as accused by this court, the order was challenged by the accused and in the Hon'ble High Court, PW-23 filed affidavit clearly stating that Idrish and others forcing her to give deposition as per their wish and to implicate innocent people and she had declared on oath that she had not seen he accused participating in the offence or doing any act. This affidavit is also brought on record at Exh. 420. As such the Investigating Officer of SIT has also mentioned in his evidence that he had found substance that false person were implicated. Hence,

    evidence of the witnesses against the above four accused to that extent was found to be untrustworthy. When opportunity is there with the witnesses to approach SIT and to disclose name of the four accused, though the constitution of SIT and working of SIT was opened by

    declaring and notices published and affixed in various placed, witnesses did not approached SIT and

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    thereafter had given the name of the accused in the court. Thus, afterthoughts and improvements regarding the above accused clearly shadows doubt on the conduct of the witnesses regarding false implication of above accused. As such where no other eye witnesses particularly complainant Rehana PW-23 and her father Yousufbhai PW-24 have revealed the name of above four accused present in the incident nor have attributed any role in any of the incident though they were able to see the incident clearly and identify the persons, merely on the basis of after thoughts of five witnesses, all the above four accused can not be said to be involved in the incident as a member of unlawful assembly. It appears that the false implication of above 4 accused which is after thoughts and improvement on

    record cannot be ruled out and involvement of the 4 accused is doubtful and suspicious, and so reasonable doubt which arise in the minds of Court regarding involvement of particular accused on the basis of after

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    thoughts and improvement, the benefit of doubt must be given to the accused.

    (196) Now after ascertaining as to which of the accused is involved in the alleged offence, it is to be ascertained as to what offence have been committed by the accused who are found to be the member of unlawful assembly at the time when the offences were committed, the accused

    would be guilty in respect of offences by virtue of the provision of Sec. 149 of I.P.C. Here those accused who are found involved had formed unlawful assembly for causing grievous hurt, burning properties and damages to the

    properties of muslims and burning alive persons and injuring persons.

    Therefore first of all they have committed offence U/s. 143 of I.P.C. Secondly those accused who have been found involved have also committed the offence being a member of unlawful assembly and in prosecution of the common

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    object, such assembly for the act done. As per the evidence on record, some of the accused were having deadly weapons like Dhariya, Sticks, chisel, burning rags and inflammble articles with them. No doubt, it is pertinent to note that the complaint is filed on 5/3/2002 and investigation started from that day. So from the date of incident till the accused were arrested, it was sufficient time to dispose off all incriminating articles. But as per the settled principles of law in the riots case large number of members are involved, they are identified, they are held to be a member of unlawful assembly doing act in furtherance of the common object. When the witnesses have stated that accused were armed with weapons and inflammable items and there was sufficient opportunity to dispose all the article. No recovery of discriminating articles is of importance. So accused have also committed offence of rioting punishable U/s. 144, 147, 148 of I.P.C. It is proved on record that 3 persons namely Aaiyeshaben,

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    Nooriben and Kadarbhai has died and their death is homicidal death. From the entire evidence and appreciation of evidence, it is proved that unlawful assembly had common object of burning the house of damages and damages house of muslims community, knowing that people are residing in the house, they burnt the house, where the witnesses were residing and 2 persons Nooriben and Aaiyeshaben have died in the fire in the house. Whereas Kadarbhai was caught hold by mob and intentionally and knowingly the kerosene was poured on him and he was set on fire. Thereby the persons involved in the incident becoming a member of unlawful assembly in furtherance of the common object of such unlawful assembly have committed the act of setting fire to the houses intentionally and knowingly that the persons were residing in the houses and it was in the knowledge of the accused that act is so imminently dangerous that it must,

    in all probability, cause death or such bodily injury as is

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    likely to cause death, and commit such act without any excuse for incurring the risk of causing death and by that act the persons involved in the incident have caused death of Nooriben, Aaiyeshaben and Kadarbhai which is culpable homicide amounting to murder. As such the accused

    involved have committed the offence U/s.302 r/w. 149 of I.P.C.

    Further unlawful assembly and the persons found involved in the assembly did an act of burning the house

    intentionally and knowingly that the persons were there in the house. Wherein 5 persons namely Idrisbhai Abdulbhai, Fakirbhai Gafurbhai, Abdul Yakubbhai, Firoz Kapadwajwala and Firoz Matarwala sustained burn injuries. They would have died, if they would have not run for their lives, and they also received the medical treatment and they survived. Thus in the incident, setting fire to the house, 5 injured witness would have died, it would have been act of murder.

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    Thus causing such an offence, the accused have committed an offence punishable U/s. 307 r/w. 149 of I.P.C.

    Furthermore, it is evident

    from the evidence of

    prosecution side that persons from the mob from the unlawful assembly had committed mischief by fire and caused damages to the houses, shops and vehicles and so have committed offence U/s. 435, 436 r/w 149 of I.P.C. and for that they are liable.

    So far as offence is alleged by prosecution in respect of dacoity, robbing of house-hold items of the victim is concerned. It is not proved by the prosecution by producing cogent and convincing evidence that the accused when any of the persons from unlawful assembly had taken away house-holds, no recovery after arrested of the accused have been made regarding any of the items alleged to have been robbed. As such to that aspect

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    offence punishable U/s. 395 is not proved by the prosecution.

    Further the prosecution has proved by cogent and convincing evidence that the member of unlawful assembly in furtherance of common object have committed death or

    mischief having made preparation for causing

    hurt or wrongful restraint. As such have committed the offence U/s. 440 r/w 149 of I.P.C.

    As regarding offence of house tresspass in order to committing offence punishable with imprisonment U/s.451 of I.P.C. is concerned. The prosecution is not been able to prove that the accused had entered the houses of witness or tresspass their property and hence accused cannot be liable for Sec.451.

    (197) Further in the entire evidence, no evidence has come on

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    record that accused or any of the member of unlawful assembly has destroyed, damaged or defiles the place of workship with intention to insult the religion of any class. No panchnama of any such place has been drawn in this case, nor any damage have been brought on record by cogent and convincing evidence. Whereas no evidence

    regarding tress passing on burial place with the intention of wounding the feelings of any person, or of insulting religion of any person has been brought on record or has been proved by the prosecution. As such offence U/s. 295 and 297 is not proved on record. However, the accused who are held involved in the mob have committed offence which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and which has disturbed the public tranquillity by speaking words Bandiyaone Maro, Kapo, the mob has attempted to promote feelings of enmity, hatred or ill-will between two communities. As

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    such persons involved in the offence except accused no.30 have committed offence though not punishable U/s.295 and 297, but is punishable U/s.153(A) of I.P.C.

    Further, the accused as per the witnesses were armed with deadly weapons and inflammable articles though some of the witnesses have not clarified as to which accused was having what weapons, as they did not remember. But it is fact that the witness have clearly stated that some of the accused were having Dharia, sticks and burning rags and kerosene Cans in their hands. It is also to be noted that it is not possible to set fire to moveable and immoveable properties without inflammable articles. At the time of

    incident, notification of District Magistrate was in existence which is produced at Exh.365 and so though it is not on record as to which accused was having the weapons and there is no recovery of any weapons. As stated above during the time when investigation started there was ample

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    opportunity

    to

    dispose

    off

    all

    the

    weapons

    and

    inflammable articles. As such it cannot be doubted that the accused who are who involved except accused no.30 have committed breach of notification issued by the District Magistrate and thereby have committed offence U/s.135 of B. P. Act.

    (198) As regarding the charge of Sec. 120-B is concerned, it is punishment of criminal conspiracy. It has come on record by the evidence that accused no.8 and 12 met the witnesses and had told them to remain in their house, they are going to take out a rally, nothing is going to happen and on assurance of this persons who came alongwith

    some leaders, who have not appeared before this Court, witnesses did not left their houses, though there was a tense atmosphere in the village and danger to the persons from minority. As such from the act of accused no.8 and 12, appears that they had agreed illegal act to be done and

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    as such the agreement was a conspiracy. It is evident that as from the evidence that incident which has occurred has not occurred spontaneously, but after leaders went away, the entire mob came with the deadly weapons and imflammble items in street, where witnesses were residing and have committed the act. If accused no.8 and 12 who had assured the witness to remain in the house would not have remained present in the mob, it would not have designed a conspiracy. But 2 accused no.8 and 12 and other leaders hatched conspiracy and shared the conspiracy with other accused and caught the witnesses in their own house and do the illegal act.

    (199) So far as regarding Sec. 120-B is concerned, if mere an agreement is made an offence is committed. Even if, no step is taken to carry out an agreement. A conspiracy is always hatched in secret and there can be only

    circumstantial evidence

    which

    can read to prove the

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    agreement. In most of the case, conspiracy is generally decided by inference. It is not necessary that all the parties should agree to do a single illegal act, it may comprise the commission of number of offence, they can be held guilty of the offence of conspiracy to do the illegal act. Though individually all are not liable for individual offence.

    (200) In the case of Mahmmad Khalid V/s. State of W.B., it is observed by the Hon'ble Supreme Court, Criminal conspiracy Elements of Basis for extending criminal liability to co-conspirators Existence of an agreement to commit an offence or to accomplish an act which itself constitutes an offence is sufficient by itself and no overt act need be proved to establish criminal conspiracy Proof of conspiracy can be by direct evidence, though the same is rarely available, or by circumstantial evidence.

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    (201) Defence has relied upon the case of Sudhir Shantilal Mehta V/s. C.B.I., reported in 2009(8) SCC 1, it is observed by the Hon'ble Supreme Court, Criminal conspiracy is an independent offence. It is punishable independent of other offences, its ingredients are; (i) an agreement between two or more persons, (ii) the agreement must relate to doing or causing to be either an illegal act and an act which is not illegal in itself but is done by illegal means.

    However, it is well settled that conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While, however doing so, it must bear in mind that meeting of minds is essential, mere knowledge or discussion would not be.

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    (202) One more aspect which points towards hatching of the conspiracy is concerned is that the incident was very much preplanned, it was not spontaneous setting fire to houses and damaging the properties was conspired because, though the Fire Officer received message from Police Control that fire broke out in village Ode and has sent fire fighter, the fire fighter was not allowed to enter the village and it returned back empty as valve was opened by the mob which reveals from the evidence of PW-59

    Kamleshbhai Jaydevbhai Brahmbhatt at Exh.317. As such it was total preplanned to set fire to the houses and properties and not allow fire fighter to enter the village. So it is also pre-meeting of minds and conspiracy of people of mob. Secondly it is to be noted in this case that though the place where the properties are burnt and damaged, properties of Hindu are also situated adjacent to the properties damaged to muslims. So the properties of Hindus are not touched and only properties moveable and

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    immoveable both of one community only is targeted. Thus, it is an act which shows planning as to which properties are to be damaged.

    (203) So considering evidence on record and principles laid down by pronouncement of the Honble Supreme Court in this case it is evident to note that accused no.8 and 12 came to assure the people living in street, opp. Masjid in Malav Bhagol and asked the witnesses to remain in the houses and the rally was to be taken out and soon after some time, mob came and the incident have taken place. So assurance given by the 2 accused alongwith other leaders was a part of conspiracy and that conspiracy was shared by the persons who are found involved in the mob. Hence, the offence of criminal conspiracy against the persons involved except accused no.30 is duly proved by the prosecution.

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    (204) From the evidence on record, the offence in respect of damages to the muslims properties is concerned, much damages has been caused to the properties of muslims by burning their houses, shops and vehicles, which is proved from the panchnama as well as evidence of witnesses and so accused who are members of unlawful assembly who have taken part in the offence and found involved except accused no.30 are liable for the said offence.

    (205) From the evidence on record it has been proved that voluntarily hurt is caused to one of the witness PW-55 Altaf Safi Mahmad while witness was leaving Ode and moving towards Sureli, he was assaulted by accused no.30, which is supported by the police statement of the witness and accused no.30 is identified by the witness. As such accused no.30 is individually liable for voluntarily causing hurt to the witness no.55, U/s. 323 of I.P.C.

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    (206) Considering all the evidence on record alongwith the legal position above, I answer point no.2 in the partly affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29 and 35, I answer points no. 3, 4, 5, 8, 9, 10, 11 in the affirmative for accused no.8, 9, 10, 11, 12, 13, 26, 29, and 35 and I answer point no.6 in the affirmative for accused no.30 individually. Whereas point no.7 is answered in negative for all accused.

    (207) While accused no. 1, 2, 5, 14, 18, 19, 20, 28, 32,38, 39, 40 and 41 are required to be given benefit of doubt as prosecution could not establish their case against the above accused beyond reasonable doubt. And so far as accused no.3, 4, 6, 7, 15, 16, 17, 21, 22, 23, 24, 27, 31, 33, 34, 36 and 37, no reliable evidence produced against them, therefore, they are to be set at liberty. Therefore, point no.2 to 11 are decided in negative against the said accused.

    (208) As accused no. 25 has expired during the trial, the case is

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    abetted against him.

    POINTS NO.12 AND 13. (209) In view of the above discussions and decisions, I pass the following final order. FINAL ORDER (1) The following accused are acquitted for the charges of offence punishable under sections 143, 147, 148 r/w Sec.149, 302 r/w Sec.149, Sec.307 r/w sec.149, Sec.435, 436 r/w Sec.149, Sec.440, 441 r/w Sec.149, Sec.295, 297, 395 r/w Sec.149, Sec.120-B r/w Sec.34 of I.P.C. and Sec. 135 of B. P. Act. Sr. Accused Name of Accused Aged No. No. 1 3 Jayantibhai Shanabhai 30 Parmar 2 4 Rameshbhai Manabhai 35 Chavda 3 6 Ganpatbhai Chhotabhai 25 Chavda 4 7 Budhabhai Shankarbhai 32 Parmar 5 15 Arvindbhai Mangalbhai 37 Patel Address Ode Ode Ode Ode Ode

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    6 7 8

    16 17 21

    9 10 11 12 13 14 15 16 17

    22 23 24 27 31 33 34 36 37

    Manubhai Ashabhai Patel Natubhai Bhagabhai Patel Dilipbhai alias Deepakbhai Kanubhai Patel Ashokkumar Harmanbhai Patel Piyushbhai Bhailalbhai Patel Samir Bhikhubhai Patel Manibhai Bakorbhai Patel Ghanshyambhai Shankarbhai Patel Sujitbhai Harishbshai Patel Pintu @ Raghuvirbhai Chandrakant Patel Poonambhai Chhanabhai Patel Dineshbhai Parshottambhai Patel

    32 40 35

    Ode Ode Ode

    25 26 36 63 35 26 25 35 37

    Ode Ode Ode Ode Ode Ode Ode Ode Ode

    (2)

    The following accused are acquitted by giving benefit of doubt for the charges of offence punishable under sections 143, 147, 148 r/w Sec.149, 302 r/w Sec.149, Sec.307 r/w sec.149, Sec.435, 436 r/w Sec.149, Sec.440, 441 r/w Sec.149,

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    Sec.295, 297, 395 r/w Sec.149, Sec.120-B r/w Sec.34 of I.P.C. and Sec. 135 of B. P. Act. Sr. Accused Name of Accused Aged No. No. 1 1 Kantibhai Manabhai 40 Chavda 2 2 Ravjibhai Manabhai 38 Chavda 3 5 Poonambhai Dahyabhai 36 Talpada 4 14 Umeshbhai Poonambhai 30 Patel 5 18 Vinubhai Ranchhodbhai 48 Patel 6 19 Poonambhai Dahyabhai 28 Patel 7 20 Chhotubhai Ramabhai 48 Patel 8 28 Ghanshyambhai 30 Vallabhbhai Patel 9 32 Dilipbhai Ranchhodbhai 35 Patel 10 38 Bhavesh Manubhai Patel -11 39 Bipinbhai Manibhai Patel -12 40 Sureshbhai @ Somaiya / -Sureshbhai Chunilal Somaiya 13 41 Sureshbhai @ Tato -Ranchhodbhai Patel Address Ode Ode Ode Ode Ode Ode Ode Ode Ode Ode Ode Ode

    Ode

    The above named accused persons who are acquitted, are hereby ordered to execute personal bond of Rs.10,000/-

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    (Rupees Ten thousand only) and one surety of like amount by each one, to the satisfaction of this Court, till the appeal period is over, with a condition that they will not leave the country without permission of this Court till the appeal period is over.

    (3)

    The following accused are acquitted for the offences U/s.395 r/w Sec.149, 295, 297 r/w Sec.149 of I.P.C., but are held guilty for the charges of offence punishable under sections 143, 144, 147, 148 r/w Sec.149 & Sec.120(B), Sec. 302 r/w 149 & Sec.120(B), 307 r/w 149 & Sec.120(B), Sec.435 r/w 149 & Sec.120(B), Sec.436 r/w 149 & Sec.120(B), Sec.440 r/w 149 & Sec.120(B) and Sec.153(A) r/ w Sec.149 & Sec.120(B) of I.P.C. and Sec.135 of B.P. Act. Sr. Accused Name of Accused Aged No. No. 1 8 Harishbhai Vallabhbhai 38 Patel 2 9 Vasantbbhai 30 Poonambhai Patel 3 10 Lalabhai @ Nileshkumar 26 Manibhai Patel 4 11 Tino @ Maheshbhai 30 Address Ode Ode Ode Ode

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    5 6 7 8 9

    12 13 26 29 35

    Gopalbhai @ Ramabhai Patel Mineshkumar Poonambhai Patel Prakash @ Pako Jamanadas Patel Riteshkumar Arvindbhai Patel Ashokbhai Dahyabhai Patel Kiritkumar @ Bodiyo Manubhai Patel

    31 35 24 42 26

    Ode Ode Ode Ode Ode

    (4)

    The following accused is hereby held guilty for the charge of offence punishable under sections 323 of I.P.C.

    Sr. Accused Name of Accused No. No. 1 30 Bhaveshbhai Kanchanbhai Patel

    Aged 28

    Address Ode

    The accused those who are convicted and are on bail, their bail bond stands cancelled, and they are ordered to be taken in Judicial Custody.

    They shall be heard on the point of punishment.

    Pronounced in the open court on this 4th Day of May, 2012 at

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    Anand.

    Place : Anand Date:04/05/2012

    ( R.M. Sareen ) Sessions Judge Designated Court, Anand.

    (210)

    Ld. Special Prosecutor, Shri B.C. Trivedi has submitted that considering overt act of the accused which cannot be discarded this is an act in which three innocent persons have lost their live and 5 persons were injured. As such the act of the accused is an act which comes under the category of the rarest of the rare case and so maximum punishment of death sentence should be awarded to the accused who are convicted for the offence punishable U/s. 302 r/w Sec.149. At the same time for the other sections under which the accused were convicted necessary sentence is prayed under the law by the prosecution. And further it is prayed to pass separate order of compensation to the 3 deceased persons and 4 injured persons.

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    (211) On behalf of the accused L.A. Shri C. K. Patel has submitted that no specific role or overt act is proved by the prosecution in this case, it is a case of rioting in which a mob came and committed an act. All the accused who are convicted are having no criminal history, they are of young age, they are farmers and having their family. As such this is not a 'rarest of the rare case. Hence it is prayed to award minimum sentence to the accused. (212) Ld. Advcoate Shri A. H. Dhagat on behalf of the accused has submitted that this is not a case in which death sentence can be awarded when the accused who are convicted with the help of Sec.149, this case is not coming under the purview of rarest of the rare case. As such it is prayed to award minimum sentence laid down in the law. The Ld. Advocate, Shri Dhagat has relied upon the following case. (A) Dwijendro Shirishbhai Manek V/s. State of Gujarat,

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    reported in 2006(1) G.L.H. 588, wherein it is observed by the Hon'ble Gujarat High Court that The object behind Section 235(2) of Code of Criminal Procedure is to see that when accused is convicted just punishment is inflicted. It is not merely a formality but it is a procedure which is

    required to be followed scrupulously. The Judge must make genuine effort to elicit from the accused all the information and thereafter considering all the factors inflict the sentence. The information such as age, family backgournd antecedent, financial position etc., will have a bearing on the question of sentence. (B) Raghu @ Raghuvirbhai Vashrambhai and Ors., reported in 2003(1) G.L.H. 699, it is observed by the Hon'ble Supreme Court that before reaching to the conclusion with respect to quantum of punishment, hearing should be afforded to the accused person and hearing is not an empty formality. No doubt, the seriousness or, heinousness of crime, is not

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    one relevant aspect in the choice of sentence. The circumstances of the crime, social pressure, which induce the crime, which may be epitomised as A just sentence in an unjust society, are other considerations. (C) Rabindra Parida alias Rabindra Pariza alias Aurn

    and Ors. V/s. State of West Bengal, reported in 1995 Cri.L.J. 2256, it is observed by the Hon'ble Calcutta High Court that Even in such a case of exceptional nature the quality or the degree of individual participation in the commission of the crime would be a matter for separate consideration for the purpose of determining the nature of the sentence to be imposed on the particular accused. Unfortunately, in present case there is no evidence or circumstancial indication about the degree or quality of individual participation of the appellants/accused persons in the commission of the murder from which it could be visualised that the degree of participation of each accused or any one or more of the accused persons at the

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    individual level was that the diabolical nature of such participation of the particular accused would warrant and justify a death sentence in the individual case. It is not unlikely that while only one or two of the accused persons took the leading and diabolically gruesome role in

    executing the murder, the role of the other or others wee of much lesser diabolical degree as would not have warranted a sentence of death for him or them. In the circumstances, there is a likelihood that sentence of death, by aggregation, for each and every accused may lead to miscarriage of justice in the matter of sentencing, and therefore such a possibility should be avoided. (D) Dalbir Singh V/s. State of Punjab & Haryana, reported in AIR 1979 S.C. 1384, it is observed by the Hon'ble Supreme Court that Parenthetically, it may be right to observe, before we conclude, that modern neurology has unravelled through research the traumatic truth and aggressive behaviou, even brutal murder, may in

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    all but not negligible cases be traced to brain tumour. In such cases cerebral surgery, not hanging until he is dead, is the rational recipe. This factor is relevant to conviction for crime, but more relevant to the irrevocable sentence of death. (E) Vithal V/s. State of Maharashtra, reported in 1994 (Suppl.) SCC 639m referring the case of Bachan Singh V/s. State of Punjab and Macchi Singh V/s. State of Punjab, it is observed by the Hon'ble Supreme Court that a balance-sheet of aggravating and mitigating

    circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full

    weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

    (213) I have heard the arguments advanced by Shri B. C. Trivedi Ld. Special Prosecutor, who is assisted by additional

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    Prosecutor, Shri A.R. Desai, appearing on behalf of the prosecution. I have also heard Ld. Advocate Shri C.K. Patel and Mr. A. H. Dhagat appearing on behalf of accused persons.

    (214) This Court has given its thoughtful consideration on the arguments advanced by both the sides and also considered the law laid down by the Hon'ble Supreme Court of India and the Hon'ble High Court of Gujarat as well as by the Hon'ble High other High Courts. Though this indeed is one of the aspects of the matter, it cannot be ignored that the accused have been convicted by virtue of the provision of section 149 of Code of Criminal Procedure. The exact role played by each accused in the entire incident is not

    specifically proved. Though there is no rule that the death sentence can not be awarded where the conviction of an offence punishable under Section 302 of I.P.C., is recorded with the aid of Section 149 of I.P.C. Considering all the

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    relevant aspects of the matter, I am of the opinion that the extreme penalty of death is not called for in this case.

    At the same time, it cannot be ignored that the accused have committed an act which cannot be pardoned. As discussed earlier incident which has occurred post Godhra riots case was a reaction to the act it was done in the Godhra. All over Gujarat riots broke out and normal life was shattered. No law of the country gives any person right to act against the law, even if it is for revenge or reaction to illegal action. The accused was not permitted by law to take law in their hands and to punish innocent people who have not done any harmful to the accused. As such whatever acts are committed by the accused are to be dealt with accordingly and though this is not a rarest of the rare case, it invites punishment as in accordance with law.

    (215) It is established fact that, much damages was caused to the

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    properties. Much destruction of the properties was done. As such, I think it proper to impose appropriate sentence of fine also, in addition to the substantive sentences. (216) Ld. Special P.P., Shri B.C. Trivedi on behalf of prosecution has prayed to award compensation to the victims. Keeping in the minds the provision of Sec.357 of the Code of Criminal Procedure. But in my opinion adequate by the

    compensation has been given to the victims

    Government for damages and also to the heirs of the deceased. As such, I think it fit not to pass any order of compensation. (217) Taking into consideration all the relevant aspects of the matter, in my opinion, the following sentences will meet the ends of justice. In the result, the following order is passed.

    ORDER
    (1) The accused persons named below in Table-I and Table-II are hereby sentenced U/s. 235(2) of the Criminal Procedure

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    Code, to undergo the punishment and fine and in default sentence, as mentioned hereunder, for the charges proved against them.

    Table - I
    Sr. Accused Name of Accused Aged No. No. 1 8 Harishbhai Vallabhbhai 38 Patel 2 9 Vasantbbhai 30 Poonambhai Patel 3 10 Lalabhai @ Nileshkumar 26 Manibhai Patel 4 11 Tino @ Maheshbhai 30 Gopalbhai @ Ramabhai Patel 5 12 Mineshkumar 31 Poonambhai Patel 6 13 Prakash @ Pako 35 Jamanadas Patel 7 26 Riteshkumar Arvindbhai 24 Patel 8 29 Ashokbhai Dahyabhai 42 Patel 9 35 Kiritkumar @ Bodiyo 26 Manubhai Patel Address Ode Ode Ode Ode

    Ode Ode Ode Ode Ode

    Table - II
    Sr. Accused Name of Accused No. No. 1 30 Bhaveshbhai Aged 28 Address Ode

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    Kanchanbhai Patel (2) The above mentioned accused persons in Table- I are hereby sentenced to suffer imprisonment and to pay fine and in default to suffer simple imprisonment as below mentioned in Table- III.

    Table - III
    Sr. No. 1 2 3 4 5 I.P.C. Sections 143 r/w 149 & 120-B 144 r/w 149 & 120-B 147 r/w 149 & 120-B 148 r/w 149 & 120-B 153(A) r/w 149 & 120-B 302 r/w 149 & 120-B 307 r/w 149 & 120-B 435 r/w 149 & 120-B 436 r/w 149 & 120-B 440 r/w 149 & 120-B Sentence (In Months/years) 3 Months, S.I. 1 Year, S.I. 1 Year, S.I. 1 Year, S.I. 1 Year, S.I. Fine In (In default rupees sentence 500 15 days 1000 1000 1000 1000 1 Month 1 Month 1 Month 1 Month

    6 7 8 9 10

    Life imprisonment 7 Years, R.I. 4 Years, R.I. 7 Years, R.I. 3 Years, R.I.

    5000 5000 3000 3000 1000

    5 Months 5 Months 3 Months 3 Months 1 Month

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    11

    B.P.Act 135

    3 Months, S.I.

    --

    --

    (3)

    The above mentioned accused person in Table- II is hereby sentenced to suffer imprisonment and to pay fine and in default to suffer simple imprisonment as below mentioned in Table- IV.

    Table - IV
    Sr. No. 1 I.P.C. Sections 323 Sentence (In Months/years) 6 Months, S.I. Fine In (In default rupees sentence 500 15 days

    (4) (5)

    All the sentences shall run concurrently. The above named convicted accused persons shall be entitled to get benefit of set-off of the period of their respective detention as an under trial, during the investigation and trial, as per Sec.428 of the Code of Criminal Procedure.

    (6)

    As some of the accused of this case is absconding and supplementary charge-sheet may be filed. Muddamal

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    articles to be retained.

    (7)

    Certified copy of the judgement be provided to each convicted accused persons, free of cost, as expeditiously as possible. Pronounced in the open Court on this 4th day of May, 2012 at Anand.

    Place : Anand Date:04/05/2012

    ( R.M. Sareen ) Sessions Judge Designated Court, Anand.

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