741. It is next contended that the absconding accused Jayanti Gohil [original Accused No. 6] has been falsely implicated; and that the evidence shows that he was on duty at the material time. The contention is then developed that ‘if Jayanti is falsely implicated, then what is the guarantee that others are not falsely implicated’; and ‘that this casts a doubt on the prosecution case’. This argument has no force at all and is to be mentioned only because it is raised. First of all, there is nothing to indicate that Jayanti has been falsely implicated. There is no evidence which shows that Jayanti was on duty at the material time. No such evidence has been adduced by anyone. The basis of the alleged false implication of Jayanti is the statement of PI Kanani [P.W.74] to the effect that during the course of investigation it was communicated to him that Jayanti was on duty at the material time. PI Kanani [P.W.74] has said that this – that Jayanti was on duty – was false. The source of the information to the effect that Jayanti was on duty has not been examined as a witness either by the prosecution or by the defence. It is surprising that in spite of this, such an argument should be advanced by Shri Jambaulikar.

… … …

747. All the contentions raised on behalf of the accused persons, save and except the contentions about reliability of the identification evidence, have been considered by me. The specific contentions regarding the evidence to connect the accused persons with the alleged offences shall be separately discussed. The above discussion leaves no manner of doubt that the Best Bakery building, wakhar of Lal Mohammad [P.W.36], house of Aslam [P.W.42], vehicles, etc., were indeed set on fire by a mob of rioters.

748. That the mob of rioters had surrounded the Best Bakery building and that the mob was throwing stones, bricks, bulbs, soda water bottles, petrol/kerosene filled bulbs/bottles, etc., towards the building, is also satisfactorily established.

749. The evidence shows that the burnt bodies of 3 women and 4 children, which were brought down from the first floor of the Best Bakery building after the arrival of the fire brigade, were sent to the S.S.G. Hospital. The memorandum of the post-mortem examinations on these bodies makes it clear that the said 7 persons had died an unnatural death as a result of the burn injuries. The burn injuries were sustained on account of the fire that had been set to the Best Bakery building.

750. That Nafitulla [P.W.31], Nasibulla [P.W.30], Taufel [P.W.26], Raees [P.W.27], Shehzad [P.W.28], Sailun [P.W.32], Baliram, Ramesh, Prakash, Firoz and Nasru were assaulted by means of weapons such as swords, sticks, rods, etc., in the morning, by a mob, or by some persons forming it, is also satisfactorily established. Though nobody has specifically stated about Firoz and Nasru being attacked, that they were on the terrace in the night and got down along with other victims in the morning, is established. Their dead bodies were recovered on the next day from a nearby place. The nature of the injuries on their person and the fact that they had been tied by coir ropes establishes that, like others, they were also assaulted by the mob of rioters. The evidence shows that the injuries were such as had endangered the lives of Nafitulla, Nasibulla, Taufel, Raees, Shehzad and Sailun. The injuries suffered by Baliram, Ramesh, Prakash, Firoz and Nasru actually proved to be fatal.

751. Yasmin’s evidence shows that the mob of rioters had robbed the ghee, maida, sugar, etc., that was in the Best Bakery building. There is absolutely no reason to disbelieve it.

752. That Baliram, Ramesh, Prakash, Firoz and Nasru died unnatural deaths as a result of injuries sustained by them on account of the assault that took place in the morning is clear from the very nature of injuries sustained by them and from the memorandums of the post-mortem examinations performed on their dead bodies. There can be no doubt that the assault on Baliram, Ramesh, Prakash, Firoz and Nasru was with the intention of killing them and, at any rate, with the knowledge that their deaths would thereby be caused.

… … …

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754. As to what exactly happened to Kausarali and Lulla is not clear. The dead bodies of none of them have been found. The version advanced by the eyewitnesses in that regard, therefore, needs to be examined.

755. There can be no doubt that both Kausarali and Lulla were present in the Best Bakery building when the riots started. There is also no doubt that none of them was seen thereafter by their relatives or any other witnesses. In the morning when the police came, Kausarali and Lulla were not available. Their dead bodies were also not found.

756. According to Taufel [P.W.26], the rioters had assaulted Kausarali and Lulla by swords, in the night itself. That both of them had fallen down. They were then lifted by Taufel and others and taken up on the first floor of the Best Bakery building. That Kausarali and Lulla had been made to sleep in one room on the first floor. According to Taufel, they were injured and bleeding profusely and might have been already dead when they were lifted and taken in the house. The attempt to discredit Taufel on these aspects has not succeeded, in my opinion…

757. Raees [P.W.27] also speaks of Kausarali and Lulla talking to the rioters and according to Raees, he saw that Kausarali and Lulla were dragged away and assaulted.

758. Even Shehzad [P.W.28] mentions about Kausarali and Lulla speaking to the rioters when the rioters came in the night. Shehzad also states that Kausarali and Lulla were assaulted by the rioters by swords; and that thereafter, he, Taufel and Baliram brought Kausarali and Lulla and made them sleep in the room. There is a variation in the version of Taufel and Shehzad regarding the persons who brought Kausarali and Lulla in the room. While according to Taufel [P.W.26], Kausarali and Lulla were taken to the first floor by him, Baliram and Nasru, according to Shehzad [P.W.28], they were taken by him, Taufel and Baliram. I am not inclined to give much importance to this variation. Some such variation is bound to exist when a number of victim witnesses are narrating an incident involving a large number of happenings, large number of assailants and large number of victims. The possibility of Taufel making a mistake and giving the name of Nasru, instead of Shehzad, cannot be ruled out. Except this variation, the story of Taufel and Shehzad is the same, on this aspect. Shehzad also states that Kausarali and Lulla were bleeding. According to Shehzad, when he, Taufel and Baliram took them to the first floor, the clothes of Taufel and the said other two were also stained with blood. The contradictions and omissions with respect to his version are of no consequence.

759. The version of Yasmin [P.W.29] on this is also consistent with the version of Taufel [P.W.26], Raees [P.W.27] and Shehzad [P.W.28]. She claims to have seen Kausarali and Lulla being assaulted by swords. Yasmin has claimed that she saw the rioters dragging Kausarali and Lulla from the first floor when both of them were unconscious. According to her, their bodies were thrown in the fire. Yasmin categorically states that the bodies of Kausarali and Lulla were thrown in the fire that had been set to the wood kept on the ground floor of the building. She claims to have seen this while coming down from the staircase between the first floor and the terrace.

760. In the cross-examination of Yasmin, it was asked to her as to from where she had seen the bodies being thrown in the fire. It is because from the terrace Yasmin would not be able to see the fire that had caught on the ground floor of the building. Yasmin has replied that they were dragged a little away from the structure. That there was some life left in Lulla; he was given blows with swords after which he succumbed to the injuries and thereafter, the bodies were thrown in the fire. The contention of the learned Advocates for the accused that the place where fire had taken place on the ground floor could not be seen from the terrace is correct and should be accepted. However, it is difficult to hold that thereby, a person cannot give evidence of having seen the persons being thrown in the fire. If they had indeed been dragged a little away from the structure, it was possible to see the same from the terrace and when they would be thrown, later on, in the fire, the witness could very well perceive the same. It is true that their actual falling in the fire would not be seen by the witness from the terrace and to a certain extent, an inference enters in what seems to be a plain statement of facts. However, the correctness of such inference can, in certain cases, be undisputed.

761. Even the hostile witnesses admit that Kausarali was in the Best Bakery building when the riots started; and that his whereabouts, thereafter, are not known to them. Similarly, about Lulla, apart from the evidence of supporting occurrence witnesses, the evidence of Ashraf [P.W.33] and Aslam [P.W.42] establishes his presence in the Best Bakery building at the material time.

762. A careful analysis of the evidence of these witnesses leaves no manner of doubt in my mind that not only Kausarali and Lulla were present in the Best Bakery building when the riots started, but that they also came in contact with the rioters, were assaulted and thereafter were brought by Taufel & others to the first floor room and made to sleep there. Whether Yasmin actually saw them being thrown in fire is difficult to conclude. One thing is, however, certain, that after the riots, Kausarali and Lulla were not found. When the police and fire brigade came there in the morning, they were not there and their dead bodies were also not found. Thereafter, they have not been seen by any of the witnesses, including the hostile witnesses, Kausarali’s wife Smt. Sharjahan Shaikh [P.W.34], and Lulla’s brothers – Ashraf [P.W.33] and Aslam [P.W.42].

763. On 22/03/2002, when PI Kanani [P.W.74] made a search for the remains of human bodies, if any, in the Best Bakery building, in the presence of the officers from the Forensic Science Laboratory, some human bones were found. The said bones were seized and taken charge of under a panchanama. The bones were, later on, sent for examination to the Head of the Department of Anatomy, Medical College, Vadodara, and an opinion, inter alia, to the effect that they were human bones; and that they were of more than one person, was given. The relevant evidence in this respect is of PI Kanani [P.W.74], Mukhtyar Shaikh [P.W.6] – a panch, Ashok Kumar Waghela [P.W.19] – Scientific Officer in the F.S.L., Dr. Saiyad [P.W.20] – Professor of Anatomy, Dr. Jagdish Soni [P.W.60] – Assistant Professor in the Department of Anatomy, and PSI Rupesh Dave [P.W.75]. This evidence, which has been attacked as unreliable, needs to be examined.

… … …

773. … Now, no attempt has been made to show that this opinion is wrong. In other words, the entire attack that has been made on the opinion given by Dr. Saiyad is based on the changes made in the list/notes [Ex.70] without attempting, in any manner, to challenge the correctness of the opinion. There is absolutely no attempt – not even a suggestion – to show that the opinion as ‘above 18 years’ could not have been given on the examination of the maxilla bone, as has been done.

774. The evidence of Dr. Soni [P.W.60] fully supports the version of Saiyad [P.W.20]. Dr. Soni has also stated that they referred to the book ‘Grey’s Anatomy’ to get the confirmed opinion about the range of the eruption of the third molar tooth in maxilla and then came to the conclusion that the proper opinion should be ‘above 18 years’ instead of ‘beyond 24 years’. Dr. Soni’s evidence confirms the fact that the changes were made at that time only and at any rate, within a short time thereafter. In any case, there is nothing to indicate that they were made after the certificate [Ex.71/A] was issued. Dr. Saiyad has made it clear that on page 1718 of the 30th Edition of ‘Grey’s Anatomy’, it is mentioned that the third molar tooth erupts during the age 18 years to 24 years. As already observed, there is absolutely nothing to challenge this and once that is so, the correction that has been made is proper. At the most, it would mean that initially a wrong opinion was formed, but before issuing the certificate, it was got corrected by referring to ‘Grey’s Anatomy’.

775. The cross-examination of Dr. Saiyad, in view of the changes between the list/notes [Ex.70] and what purports to be its copy, as filed in the charge-sheet, seems to be totally uncalled for. A number of theories of conspiracy with PI Kanani, etc. were advanced based on this, but apart from the fact that the opinion which has been given is not shown, or even suggested, to be wrong, I am not impressed by these theories. There was hardly any reason for Dr. Saiyad and Dr. Soni to make changes after having issued the certificate. This is particularly so when the change is said to be correct. Moreover, the list/notes were not meant to be the final opinion expressed by these experts. It was for their record and what actually matters is the ultimate certificate issued by them. It is the certificate which is supposed to record their conclusion, and not the notes. Thus, not only the theory of Dr. Saiyad and Dr. Soni having tampered with the record and opinion to oblige PI Kanani, who wanted such a change, cannot be believed, but, on the contrary, it seems that a copy of the rough notes was improperly issued by one Dr. Sudhalkar, Associate Professor in the Department of Anatomy, a colleague of Dr. Saiyad and Dr. Soni. It is apparent from the documents [Ex.72 and Ex.72/A] that Dr. Sudhalkar certified a Xerox copy of the list/notes [Ex.70] as the ‘true copy’ without reference to either Dr. Saiyad or Dr. Soni and handed over such certified copy to PI Kanani. PI Kanani included it in the charge-sheet. Apparently, before making corrections in Ex.70, a Xerox copy thereof had been taken out as per the procedure explained by Dr. Saiyad and on the basis of the said copy, another copy was taken out by Dr. Sudhalkar and certified as ‘true’. Naturally, such copy does not contain the corrections that were later on carried out. As a matter of fact, it is not that there is anything questionable in what Dr. Saiyad and Dr. Soni did in as much as they were entitled to make changes and correct the document which was nothing but their own rough notes, but actually, it is Dr. Sudhalkar’s conduct in certifying a Xerox copy of the rough notes made by Dr. Saiyad and Dr. Soni as ‘true’ without reference to them that is questionable…

778. In the ultimate analysis, therefore, as regards PI Kausarali and Lulla, the following factors can be said to be satisfactorily proved.

a) Kausarali and Lulla were very much present in the Best Bakery building when the riots started in the night on 01/03/2002.

b) That in the night itself, they had come in contact with the rioters and Kausarali had a talk with the rioters.

c) Kausarali and Lulla were assaulted by the rioters. They sustained injuries and were bleeding profusely.

d) They were lifted by Taufel, Shehzad, Baliram, brought on the first floor of the Best Bakery building and made to sleep in a room.

e) In the morning, when the police came, neither Kausarali and Lulla, nor their dead bodies were found.

f) Since then, Kausarali and Lulla have not been heard of by their relatives.

g) Incompletely burnt human bones of at least two different persons were found in the premises of the Best Bakery building on 22/03/2002.

… … …

781. In the present case, there can be no rational explanation of the facts which are proved, other than that Kausarali and Lulla were killed in the incident. The finding of burnt human bones at the relevant place indicates that at least two persons or dead bodies had been burnt. Kausarali and Lulla could not have left the Best Bakery building in the night, and when it was surrounded by the rioters. They had already been very badly injured, as established by satisfactory evidence. … … …

Though what exactly happened to Kausarali and Lulla and the manner in which they were actually killed is not clear, the only inference that can be drawn from the proved facts is that they were killed during the riots at that particular night and they were burnt alive or dead. There are no other reasonable possibilities.

782. Refusing to come to this conclusion would not be justified only because their dead bodies were not found. As already observed, it is not a legal prerequisite for coming to the conclusion about them having been killed. Once there is no doubt whatsoever that they were present in the Best Bakery building, that they met the rioters, that they were assaulted and were badly injured, that they were brought and kept in the room on the first floor of the Best Bakery building; and that thereafter, neither they, nor their dead bodies were found, but later on, from that place, burnt human bones of at least two persons were found, I am unable to come to a conclusion that they might not have died and might be surviving somewhere or that they might have died due to something else. In my opinion, these factors are sufficient to justify the conclusion arrived at by me. This conclusion is further strengthened by the fact that neither Kausarali nor Lulla have been heard of by their own relatives since 02/03/2002.

783. It may be kept in mind that the law creates a presumption of death in case of a person who has not been heard of for 7 years by those who would naturally have heard of him if he had been alive. Thus, without there being any history of assault, attack, etc., a presumption regarding death is drawn only from the fact that the person is not heard of for 7 years by those who would have naturally heard of him and the burden of showing such person to be alive is thrown on the one who asserts it. In the instant case, there is a background of riots, history of assault and having sustained injuries and thereafter the persons or their dead bodies being missing in the morning. The evidence has brought on record the existence of circumstances which make it impossible to think that in an injured condition Kausar and Lulla would leave the premises and go elsewhere on their own. Whether rioters would allow them to go is also a question. In this background, if they are not heard of by their close relatives for a period of more than two and half years, as is clear from the evidence of Smt. Sharjahan [P.W.34], Ashraf [P.W.33] and Aslam [P.W.42], the only inescapable conclusion is that they have died; and that too an unnatural death in the riots.

784. Can it be said that the fact of death of Kausarali and Lulla is proved by the standard that is required in a criminal trial? It is well settled that the degree of proof that is required in a criminal trial is higher than a mere preponderance of probabilities. The phrase ‘beyond reasonable doubt’ is invariably used in relation to the standard of proof that is expected in a criminal trial. The phrase ‘beyond reasonable doubt’ is a time honoured phrase and though it may be difficult to explain its meaning precisely, it is easier to understand what it conveys. The following observations of Lord Denning in Miller V. Minister of Pensions, [1947] 2 All E.R. 372, at p.373-374, which have been referred to by the Supreme Court of India, are worth reproducing in this context.

It can be said that the possibility, if any, of Kausarali and/or Lulla being alive, or having died a natural death, is too fanciful and too remote to be seriously considered. At any rate, it can be dismissed as ‘not in the least probable’.

785. There is no doubt in my mind that Kausarali and Lulla were put in the fire – either alive or after having been killed – by the mob of rioters and in either event, they have died an unnatural and homicidal death, either due to the fire, or otherwise.

… … …

786. The mob of persons who had assembled at the material time near the Best Bakery building and who did the aforesaid acts in the night on 01/03/2002 and/or in the morning of 02/03/2002 was clearly an unlawful assembly. The mob was of several persons, stated to be of about 1,000 to 1,200. It is clear that the said assembly was entertaining more than one of the common objects specified in Section 141 of the I.P.C.

787. The various acts committed by the mob which was surrounding the Best Bakery, giving slogans, pelting stones, bottles and burning matters, etc., were obviously not committed at the whims at the individual members composing the unlawful assembly. The evidence, as discussed earlier leaves no manner of doubt that all the aforesaid acts and setting the buildings on fire, robbing of the ghee, maida, sugar etc., and other articles in the bakery, assaulting the inmates with weapons, causing hurt to them, etc. were clearly in prosecution of the common object of the said unlawful assembly. What was the object has been clearly proved by the evidence.

… … …

788. These two points being connected, the reasons for the determination thereof may be discussed together. That the accused persons were the members of the unlawful assembly is sought to be established mainly on the basis of their identification as such. There are a number of challenges to the identification evidence, some of which have been dealt with earlier. The contention that it was impossible for the occurrence witnesses to have seen the mob of rioters or the persons forming it, due to smoke, darkness and topography, etc. has already been dealt with and has been found to be without substance. I shall now consider the other contentions raised by the learned Advocates for the accused with regard to the unacceptability of the evidence of identification.

789. It is contended that the investigating agency failed to ascertain the identity of the accused persons as the culprits, during investigation. This is not accepted as correct by PI Baria and PI Kanani who both have been extensively cross-examined on this aspect. It is contended that since full names of the offenders could not be given by the occurrence witnesses, it was not possible for the investigating agency to fix the identity of the culprits on the basis of the names as revealed to them. PI Baria has accepted some of the suggestions given to him during cross-examination about the names being incomplete, but has added there were other factors establishing the identity. He has given some instances in that regard, but it is not necessary to discuss that evidence. This is particularly so, because PI Baria has, actually, not apprehended any of the accused.

790. PI Kanani has been questioned, to show that neither any physical description of the offenders nor of the clothes worn by them could be gathered by him from the statements recorded during investigation. It was also suggested to PI Kanani that the names of the accused as obtained by him, from the occurrence witnesses, were quite common in Gujarat; and that the names were insufficient to fix the identity. Though the contention about the fixation of identity of the accused as the culprits during the investigation stage is not very methodically advanced, from the cross-examination of PI Baria and PI Kanani, and from the arguments, it appears that it has two shades. The first is about the satisfaction of the identity of a particular accused as the culprit reached by the Investigating Officer and the other is the absence of the confirmation of the identity of the accused from the occurrence witnesses during the investigation stage.

791. An attempt has been made to confuse the satisfaction of the Investigating Officer about the identity of an accused as the offender, with the identification of the accused, as such, made by the occurrence witnesses during investigation stage. It may be observed that these two are two different aspects, though in some cases they may overlap. PI Kanani has been questioned as to whether he could explain as to why he did not feel it necessary to record further statements of Taufel [P.W.26] and other supporting occurrence witnesses for the purpose of knowing the full names of the accused. PI Kanani has answered as follows:

"Whatever names had been mentioned by these witnesses, on the basis of that, I was able to establish the identity of the said persons. I could establish their identity and, as such, I did not feel it necessary."

The questioning to PI Kanani on this aspect gives an impression that the Advocates for the accused did not want the Court to ascertain the sufficiency, or otherwise, of the identification evidence, but wanted an admission from PI Kanani that the eyewitnesses had not established the identity of the accused. The least that can be said about this is that the questioning is rather improper. When such admission did not come from PI Kanani, who was emphatic about the identity having been established, it was reminded to him that the decision whether the accused are guilty or not is not left to the prosecution and it is the Court which decides such questions. This proposition is correct, but in that case there was no point in attempting to elicit an admission – based on his opinion – from PI Kanani about the insufficiency of identification evidence. This has been mentioned in view of the unfair criticism of Kanani and his evidence, and to show that it is the questioning that is unfair and not ‘attitude of PI Kanani’, as reflected from the answers.

792. Moreover, the emphasis on this aspect is totally misplaced. A more fundamental and basic question needs to be dealt with in view of the emphasis on fixation of identity of the culprits during investigation and that is ‘how far the question whether the identity of the offender was properly established during the investigation stage is relevant when his identity is satisfactorily established during the trial’. The actual evidence regarding identification is that which is given by a witness in the Court. If that evidence is acceptable, the question whether the identity of the accused had been satisfactorily established at the investigation stage would be immaterial, save and except in so far as it may be relevant for judging the reliability of the identification made in the Court. If the identity of the accused is satisfactorily established during the investigation stage it may, in some cases, serve as corroboration to the identification in Court, but by itself it would not be relevant at all. The confirmation of the identity of the culprits by the Investigating Officer at the time of the arrest would undoubtedly be necessary, but the Investigating Officer cannot be restricted to have such confirmation of identity from a particular source or in a particular manner. His confirmation of the identity is for his own satisfaction and not for the satisfaction of the Court during the trial. His satisfaction about the identity would be relevant for the purpose of arrest and till that stage. The identity during the trial is to be established by proper evidence.

793. In view of the very lengthy cross-examination on this issue, the legal position must be discussed here, in my opinion. If the victims or the witnesses would name certain person or persons as accused, undoubtedly, the Investigating Officer, while arresting them, is required to confirm their identity as the same persons against whom allegation has been levelled. However, this satisfaction is to be reached by the Investigating Officer. He can arrive at it by any mode which he thinks satisfactory. This is clear from the fact that even where the names are not given, or even where the culprit is stated to be unknown to the victims, the Investigating Officer has to ascertain the identity of an accused as the culprit before sending him for trial. Obviously, in such cases, confirmation of identity cannot be done from the victims. The source on which his belief would be based has nothing to do with the admissibility, as a piece of evidence, of that source. The Investigating Officer may reach the requisite satisfaction from a source other than the victims and the witnesses even where they have named the offenders. For instance, if ‘A’ complains that ‘B’ assaulted him, nothing prevents the Investigating Officer while arresting ‘B’ to get it confirmed from ‘C’ or ‘D’ instead of ‘A’ that he is that ‘B’. Once the case comes to the stage of trial, the identity of ‘B’ as the person who assaulted ‘A’ is to be established by legally admissible evidence.

794. Thus, apart from the fact whether the Investigating Officer had got the identity of the culprits established during the investigation, either before or after their arrest, is not by itself relevant, there is nothing to indicate that PI Kanani apprehended the accused without being satisfied about their identity or without ascertaining it.

… … …

796. The contention of impossibility of the eyewitnesses having seen the mob or some persons in the mob is advanced also on the ground that in the given circumstances, they would not have attempted to see as to who were there in the mob. It is submitted that the mob was of 1,000 to 1,200 furious persons with weapons like swords and giving slogans such as ‘burn bakery’, ‘kill Muslims’, etc. It is not in dispute that stones, bricks, kerosene/petrol bottles, etc. were being thrown on the Best Bakery building and even towards the terrace. It is contended that under the circumstances, the frightened eyewitnesses, in the background of the riots and the circumstances of fire, heat, flames, would not have risked themselves by looking at the road and thereby exposing themselves to the danger of becoming targets.

797. I am not impressed by this submission. Firstly, as already observed, because of the balusters, it was not necessary at all to peep over the railing to see as to who were the persons in the mob. One could easily see the same through the gaps between the balusters. Further, though the witnesses would undoubtedly be frightened in the circumstances that have been fully established by the evidence, it is not possible to accept that such frightened persons would not try to see as to what was happening. In fact, it would be a normal reaction of the witnesses to see as to what was happening, when the stones, bricks, etc., were being thrown, slogans were being given, fire was being set. It would not be a normal or, at any rate, a common reaction of a frightened human being, not to try to ascertain as to from where, how serious and of what nature, the danger exists. When the mob would be collected and would be giving slogans, it would be quite natural for the witnesses to first try to see as to what was happening and, in that process, obviously to see who were the persons who were forming the mob. It is only after knowing what they were doing, the witnesses would know to what extent they were in danger. The support to this theory – viz. of the witnesses being frightened and therefore simply avoiding or refusing to see anything – is sought to be obtained from the hostile witnesses who are keen on destroying the whole prosecution case. The tainted evidence of the hostile witnesses cannot be brought in aid to establish a particular conduct or reaction on the part of the supporting eyewitnesses. The witnesses Taufel [P.W.26], Raees [P.W.27], Shehzad [P.W.28], Smt. Yasmin [P.W.29] and Sailun [P.W.32] have not been asked any questions in cross-examination to show that they could not have tried or did not try to see what was going on.

798. Though the aspect of witnesses being frightened has been mainly advanced with respect to the supposed impossibility of their having attempted to see what was happening and who were the persons forming the mob, that in such a frightened state of mind, they would not have been able to see and remember the persons in the mob, is also advanced. Thus, based on the aspect of fear, twofold arguments are advanced. The first, which has been dealt with earlier, is that due to fear, the witnesses would not have attempted to see what was happening. The second is about the effect of fear on their perception. In this regard, the following observations:

of Professor Borchard, quoted by the Supreme Court of India in Hari Nath and another V/s. State of U.P., A.I.R. 1988, SC 345, have been emphasised. However, the submission that because the witnesses were under fear at the time of the incident it would prevent them from observing what was going on around them and forming a proper impression of the same in their minds is not scientifically accepted. That fear will have such an effect on the witnesses, is of layman’s view, as observed by the Allahabad High Court in Jwala Mohan and others V/s. the State, A.I.R. 1963, Allahabad, 161. While dealing with the view that the identification witnesses would be nervous at the time of the incident and therefore the identification made by them would be unreliable, their Lordships quoted the following as the view of Psychologists:

"On the contrary, fear generally has a large emotional factor and, as a result, the attention is sharpened, the mental faculties are concentrated and better memory on material points should result. Intense feeling of any kind is apt to key up the powers of the brain and sharpen perception. When we feel a thing strongly, we are sure to retain the recollection of it. It is more firmly impressed upon us than the humdrum affairs of our ordinary life," [see ‘Psychology and the Law’ by Dwight G. McCarty, 1960, pg.198] [emphasis supplied].

G.F. Arnold, in his ‘Psychology of Legal Evidence’, has considered the question of effect of fear on memory. It would be advantageous to take note of the following comments of the learned Author:

799. The learned Author further went on to quote Darwin, as follows:

"‘Fear,’ says Darwin, ‘is often preceded by astonishment and is so far akin to it that both lead to the sense of sight and hearing being instantly aroused. It lends us to attend minutely to everything around us because we are then specially interested in them as they are likely to intimately concern us’."

[Quoted from Wigmore’s ‘Principles of Judicial Proof’, (published by Boston Little, Brown and Company 1913)].

In fact, the same observations of Professor Borchard [supra] were quoted before the Supreme Court of India and the Supreme Court had occasion to deal with the same in Daya Sing V/s. State of Haryana AIR 2001, SUPREME COURT, 1188. The Supreme Court of India observed as follows:

"Theoretically in some case what has been noted by the learned author may be true. For that purpose, the evidence of the witness is required to be appreciated with extra care and caution." [Para-14].

The Supreme Court of India further cautioned that the matter is to be decided on an appreciation of the evidence; and that it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses and with regard to their powers of memorising the identity of the assailants.

800. Whether the aforesaid observations of Professor Borchard would apply to the identification of known persons and/or where the incident has lasted for hours, giving repeated opportunities of viewing the offenders is extremely doubtful. They appear to have been made in the context of identification of persons not previously known, and/or in respect of incidents which take place in a very short time. At any rate, the force of these observations will not be the same in all cases irrespective of the aspects as to previous knowledge, duration of incident, manner or opportunity to observe etc. Thus, there cannot be a general rejection of the evidence of eyewitnesses on the ground that due to fear, they might not have perceived what was happening, properly. Moreover, the view of experts, as quoted earlier, does not support the theory at all. G.F. Arnold and Darwin quoted above, suggest to the contrary.

801. Thus, the contention about the impossibility of the eyewitnesses having seen the culprits on any of the grounds that are advanced is without substance. There was every opportunity for the eyewitnesses to see the mob and there was every possibility of their having seen persons from the mob during the long period for which the incident lasted.

802. It is next contended that the identification of an accused for the first time before the Court is a very weak piece of evidence and cannot be accepted, unless it is supported by a test identification parade held previously. It is contended that since in this case, no test identification parade was held, the evidence of identification is totally valueless and cannot be acted upon.

803. A number of decisions of the Hon’ble Supreme Court of India and of the Hon’ble High Courts have been relied upon by the defence to challenge the value of the identification evidence. I shall be discussing only some of these authoritative pronouncements, as, in my opinion, it is not necessary to discuss each and every Judgement cited, though I have taken into consideration the principles enunciated in all the authoritative pronouncements.

804. The reliance of the defence on most of the authorities in connection with the value of the identification evidence not preceded by a test identification parade is misplaced. It is clear that substantive evidence as regards the identification would only be the identification of an accused as the culprit, made by a witness in the Court. It is true that such evidence is considered as ‘weak piece of evidence’ unless supported by the evidence of a previous test identification parade, but this concept of ‘weakness’ arises where the offender or the culprit is not previously known to the identifying witnesses. All the authorities which speak of the necessity of holding a test identification parade and the weakness of the identification done in the Court for the first time relate to cases where the offender or the culprit would not be known to the witnesses prior to the incident. The observations from the very Judgement relied upon by the learned Advocates for the accused themselves, establish this.

i) In Bollavaram Pedda Narsi Reddy and ors. V/s. State of Andhra Pradesh, (1991) 3 Supreme Court Cases 434, on which reliance has been placed by the defence, the Supreme Court was dealing with the question of identification of accused persons not previously known to the witnesses. This is clear from the following observations:

"In a case where the witness is a stranger to the accused and he identifies the accused person before the Court for the first time, the Court will not ordinarily accept that identification as conclusive" [emphasis supplied] [para-8].

The Supreme Court further observed:

"In the present case, the appellants are admittedly persons with whom the two witnesses had no previous acquaintance" [para-9].

It was further observed:

"The occurrence happened on a dark night. When the crime was committed during the hours of darkness and the assailants are utter strangers to the witnesses, the identification of the accused persons assumes great importance" [emphasis supplied] [para-9].

805. The observations reproduced above, leave no manner of doubt that they cannot have any application to a case where the culprits would be known to the identifying witnesses previously.

ii) The decision of the Supreme Court in Kanan and others v/s State of Kerala, (1979) 3 Supreme Court Cases 319, is also relied upon by the learned Advocates for the accused.

806. The following observations from the reported Judgement:

"It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observation" [para-1],

demonstrate that they relate to the identification of an accused not known to the witnesses from before.

807. Thus, it is very clear that the failure to hold a test identification parade may prove fatal only in cases where the offenders would not be known previously to the witnesses or victims. Even in such cases, no proposition of universal application that the evidence of identification of an accused as the culprit for the first time in the Court has to be rejected in all cases can be laid down. There is no rule of law, or even of prudence, to that effect. The rule deducible from the authoritative pronouncements of the Apex Court – which is based on logic, common sense and prudence – is that such piece of evidence is a weak piece of evidence and may be rejected; and that it is required to be accepted with great caution. If there would be circumstances which lend assurance even to such identification, then notwithstanding that no test identification parade was held and that the offender was not known to the identifying witness/witnesses since previously, the evidence can be accepted and even a conviction can be based on such evidence. In any case, it is not possible to deduce any principle from any of the judicial pronouncements relied upon by Shri Adhik Shirodkar, learned Senior Advocate, Shri Jambaulikar, learned Advocate for accused Nos. 1 to 5, 10 11 and 12, and other learned Advocates for the accused that this ‘weakness’ attached to the identification evidence exists even in cases where the offenders are known to the identifying witnesses. On the contrary, the very observations made therein show that where the culprit is a person previously known to the witness, the necessity of holding a test identification parade does not arise at all; and as such, the identification of the culprit made by the witness for the first time in Court of law cannot be discarded or regarded as ‘weak’ on the ground that no test identification parade was held.

808. In Jadunath Singh and another V/s. The State of U.P., 1971 CRI.L.J.305, the issue that was before the Court was much more complicated, but the observations of the Lahore High Court in Sajjan Singh V/s. Emperor, AIR 1945 Lah 48 to the effect,

"If an accused person is already well known to the witnesses, an identification parade would of course, be only a waste of time,"

were approved.

809. In Mehtab Singh and others V/s. The State of Madhya Pradesh, 1975 CRI.L.J.290, while dealing with an argument that there was no proper identification [of the Appellant Nos. 2 and 6 before the Supreme Court] at an identification parade; and that the appellants were therefore entitled to be acquitted, the Supreme Court observed as follows:

"But this argument is ...without force and cannot be accepted. The necessity for holding an identification parade can arise only where the accused are not previously known to the witnesses" [para-3].

810. In Surendra Nath V/s. State of U.P. A.I.R. 1998 SC 193, all the relevant aspects touching the identification evidence were discussed. The Supreme Court of India referred to several of its decisions on this aspect. In that case, the appellant had claimed that the witnesses were not known to him. His application for directing the test identification parade was dismissed by the Chief Metropolitan Magistrate, which was challenged in the Court of Sessions, Kanpur. The Sessions Court directed the appellant to be put up for identification but still the identification parade was not held. The Supreme Court, after referring to its previous pronouncements in which it was laid down that identification of an accused who is already known to the identifier is futile, came to the conclusion that failure to hold the test identification parade even after a demand by the accused is not always fatal; and that it was only one of the relevant factors to be taken into consideration along with the other evidence on record. It was observed that if the claim of the ocular witnesses that they knew the accused already is found to be true, the failure to hold the test identification parade is inconsequential. The legal position was further made clear by the Supreme Court in Dana Yadav V/s. State of Bihar A.I.R. 2002 SC 3325. After an extensive analysis of the law on the subject, the Supreme Court recorded its conclusions in para-38 of the reported judgement. The conclusions do not leave any manner of doubt that there is no question of holding test identification parade if the accused is known to the prosecution witnesses. Further, even in cases where the accused had demanded an identification parade to be held and where a parade was not held in spite of such demand, that would not be fatal if ultimately it is revealed that the accused was known to the witnesses from before. What needs to be highlighted is that in spite of the claim of the accused that he is not known to the witnesses and in spite of the failure to hold a test identification parade even after such a claim, it may not prove fatal; and whether the accused was known to the witnesses since previously, would be a question to be decided by the Court on the basis of the evidence that may be adduced during trial.

811. So far as the present case is concerned, according to the identifying witnesses, the accused who have been identified by them were known to them since previously. The witnesses who have identified the accused persons have stated about such accused being known to them by their face and appearance, where they are not known by name. No test identification parade was demanded by the accused during investigation. It is true that only some of the accused are known to some of the witnesses by names, but every identified accused is stated to be known by face and/or appearance by the witness identifying him.

812. Thus, the crucial question is whether the accused – or at least those who are identified by the witnesses – were known to the concerned witnesses since prior to the incident. The witnesses have said so. According to the witnesses, they knew accused persons identified by them because the accused are from the same locality. I shall therefore consider whether the accused are proved to be from the same locality as of the witnesses, or a nearby locality.

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813. It may be observed that, apparently, there was no dispute on this issue earlier. It is only when the fact that not holding of a test identification parade, would not be relevant in this case, by reason of the accused identified by the witnesses being known to them since previously, was discussed in the course of the arguments, that the stand that they are not from the locality, was taken.

814. As already discussed, the witnesses who have identified the accused persons have said that those accused were known to them, since previously. The fact that they were known previously has come out in a natural manner from the identifying witnesses. In this context, the arguments that it is only a ‘bare oral word’; and that it is ‘a belated oral word’ of the identifying witnesses, cannot be accepted. It was never a case of the identifying witnesses that the offenders were all unknown to them. Rather, the investigating agency’s case is that the accused are from the same locality, as that of the witnesses and victims. The statement regarding previous knowledge, as made by a witness, cannot be discarded as ‘mere oral word’, etc. in as much as there is nothing else which he is required to show. It was open for the accused to question the witness as to in what way they knew the concerned accused since previously. In fact, Yasmin has been asked about it and she has answered the same. If a man knows another since previously, he is only supposed to and expected to say that. It cannot be suggested that he should be armed with evidence – rather documentary evidence – to prove that he knows him; and that too when there is no reason for him to expect any challenge from the accused on this.

815. Apart from this, there is clear and positive evidence of Lal Mohammad [P.W.36] who says that all the accused are from the same locality where his ‘wakhar’ and the Best Bakery were situated. Lal Mohammad has categorically stated that he knows all the accused; and that all are from the ‘mohalla’. There is absolutely no challenge to this evidence. On the contrary, that Lal Mohammad’s evidence should be accepted fully is what is contended on behalf of the accused.

816. Veersingh Zala [P.W.45] has also admitted that the accused in this case are from his locality and nearby locality, though unlike Lal Mohammad, he did not know anyone. There is no challenge to this evidence.

817. The evidence of Smt. Khyati Pandya [D.W.4] also speaks of the accused being persons from the same locality where Best Bakery was situated. In fact, Smt. Khyati Pandya gives that as a reason for feeling curious, about how Yasmin [P.W.29] could go and stay in the Best Bakery building. When the accused were from the same locality and when they had been acquitted, how Yasmin, a victim of such terrible incident, could go and stay there, was the aspect which aroused her interest and therefore she instructed Ajay Patel [D.W.5] to record Yasmin’s interview. No clarification as to how she had knowledge of the fact of accused being the residents of the same locality has been sought on behalf of the accused; but I still consider that in all probability, Khyati Pandya has no personal knowledge regarding it. Her evidence may be only indicative of her belief that they are the residents of the same locality, rather than knowledge. What is significant is that the accused did not challenge this evidence, or did not attempt to show that she is wrong. The basis of the belief, the defence has not dared to seek clarification regarding. This belief together with the tacit admission on the part of the accused supports the unchallenged evidence of Lal Mohammad [P.W.36], should it require any support.

818. PI Kanani’s [P.W.74] evidence also clearly shows that the accused are the residents of the same locality.… … …

… … …

822. Yasmin’s previous statement, that her mother-in-law and her sister-in-law had pressurised her to give the names of the persons from the ‘faliya’/ locality, has been brought on record by the defence as their suggestion for the false implication of the accused. Now, in this, an admission that the accused are from the locality, is implicit.

823. Even at the conclusion of the trial and after taking a stand disputing the accused to be the residents of the same locality, a tacit admission that they are actually from the same locality, has come from the defence. It is in the context of Yasmin’s evidence. It may be recalled that Yasmin’s evidence on identification was sought to be challenged on the ground that admittedly, after the previous trial, Yasmin went on to reside in the Best Bakery premises; and that the accused having been acquitted, were moving in that locality. It was positively suggested to Yasmin that it is at that time she came to know the accused. That she knew the accused was sufficiently and satisfactorily established and Yasmin’s evidence in that regard could not be doubted. An argument has been advanced that all the accused, after their acquittal, were moving freely and the possibility of Yasmin having come to know them during this period could not be ruled out. However, the possibility of coming across would be only when they would be the residents of the same locality as is clear of Yasmin’s evidence. Such general acquaintance and knowing about their details would be possible if they would be from the same locality. Thus, leaving aside the question as to when Yasmin came to know the accused identified by her, the suggestions and the contentions discussed above indicate that the accused – at least those who have been identified by her – are the residents of the same locality.

824. The evidence of D.C.P. Patel and PI Baria clearly shows that it was told to them on the spot itself that the assailants – or at least some of them – were from the Hanuman Tekdi locality only. That they were known was told to them and, in fact, their names were also given. These statements made by D.C.P Patel and PI Baria are clearly admissible in evidence under Section 6 of the Evidence Act. The evidence of D.C.P. Patel and PI Baria in that regard is acceptable and is further confirmed by a further fact deposed to by them – viz. at that time itself, search for accused in the Hanuman Tekdi locality was made. Thus, this also indicates that at least a number of assailants/offenders were from the Hanuman Tekdi locality only.

825. It may be of interest to observe that during the previous trial, the stand of the accused themselves was that they were residents of the same locality…

826. Kanchan Mali [P.W.44 in this trial and P.W.28 in the previous trial] also deposed during the first trial that the accused before the Court were from his ‘mohalla’. Of course, he did say that they had done the work of saving the Muslims at the time of the incident. What is significant is that this was elicited from him in the cross-examination. The question is not of establishing the truth of that version, but the question is of understanding that the accused never made any dispute regarding the fact of their being from the same ‘mohalla’ – rather, they invited such evidence.

829. Once it is satisfactorily established that the accused are from the same locality, nothing more is required to accept the statements of the witnesses that they knew them unless it is shown positively that the witnesses are lying in that regard. In fact, when they are the residents of the same locality, there would be every possibility of their being previously known to them. Such presumptions of previous acquaintance or prior knowledge are quite often drawn by the Courts of law from the evidence of the accused and witnesses residing in nearby localities. The observations made by the Supreme Court of India in Harinath V/s. State of U.P. (1988) 1 SCC, 14, show that an inference of prior knowledge on the ground of the accused and the witnesses being residents of villages in close vicinity and being students of the same institution was drawn in that case. The Supreme Court also referred to its own observation in Bali Aher V/s. State of Bihar, AIR 1983, SC 289, wherein, from the fact that the appellant before the Supreme Court was belonging to the neighbouring village at a distance of less than a mile, an inference that the identifying witnesses knew appellant Bali Aher from before, was drawn. It is to be remembered that the context in which the observations were made, was quite different and there, the inference of prior knowledge was drawn in spite of the fact that the claim of the witnesses was otherwise. In other words, even when there would be no such claim of witnesses, prior acquaintance, nevertheless, it may be inferred from the fact that the accused and the witnesses are the residents of the same locality or a nearby locality. Here, there is a positive claim of the witnesses of such knowledge and the fact of they being residents of the same locality is only a factor which strengthens the claim.

830. Thus, there is absolutely no reason to disbelieve the witnesses, when they say that the accused identified by them were known to them since before; and that they used to see them in the ‘mohalla’. No fault with the evidence of identification on the ground that no test identification parade was held, or that the identity of the accused persons was not got confirmed from the identifying witnesses during the investigation, can therefore be found.

831. The only question that now requires consideration is whether the evidence of identification should be disbelieved on the ground that either the names or the details or particulars of the accused identified by the witnesses were not mentioned by them to the police. It is true that failure to mention the names of the culprits where they were known, or to give their relevant details and/or particulars, would be an omission to state a material and significant fact. Whether the effect of not naming the culprits or not giving relevant details or information to the police would result in rejection of the evidence of identification made by such witnesses later in the Court is a matter that would depend on a number of factors. This would involve consideration of the explanation, if any, in that regard by the witness. This would also involve consideration of the manner in which and the circumstances in which the statements were recorded. Above all, it would require consideration of the authenticity and reliability of the record made by the police itself. It has been earlier remarked by me that the authenticity and accuracy of the police record of the statements under Section 161 of the Code in this case is absolutely unreliable. At this stage, this may be thoroughly discussed.

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832. In reality, there ought not to be any dispute on this. The learned Spl. P.P. says that due to the number of cases of serious offences that were being registered at the material time and the serious law and order problems which the police had been facing, it was not possible for the police to make detailed inquiries with the witnesses and try to elicit detailed information from them. Further, according to her, considering the mental and physical condition of the injured witnesses it was impossible to expect that they would give minute details of the incident. Thus, according to her, neither a proper probe was possible nor was it possible to maintain an accurate record of what the witnesses said. The learned Advocates for the accused have also criticised the record as unreliable. According to them, some of the statements of the witnesses are false, fabricated or concocted. It is contended that such statements are a creation of PI Baria [P.W.72]. Thus, though the reasons for the unreliability of the record as advanced by the parties defer and though the inferences which they expect the Court to draw from such unreliability are different, about the fact of the unreliability of the record, they are in agreement.

833. After carefully considering the entire evidence in that regard, I am of the opinion that the authenticity and accuracy of the statements recorded by Baria cannot be relied upon. The statements of the occurrence witnesses have been recorded by Baria in Gujarati language. All these witnesses are Hindi speaking. They have given their evidence in Hindi. Baria, on the other hand, expressed his inability to depose in Hindi or English and has given his evidence in Gujarati. Baria has mentioned the procedure followed by him while recording the statements of the witnesses as follows.

834. PI Baria would first record the date and then the name, address etc. as given by the witness. It is thereafter, that the narration of the witness would be recorded as ‘on being asked in person’, ‘I give in writing that...’.’ After the narration would be over, Baria would conclude the statement by recording ‘Etli mari hakikat chhe,’ or words to the effect that ‘these are the facts’. Ordinarily, whatever the witness would narrate, Baria would record, but whenever it would be necessary to put a question, he would put it. He never added anything to the narration and never omitted anything from the narration. The date of recording was put on the statement, but the time of recording was not put. Now, PI Baria does not say that the statements would be read over by him to the witnesses. The statements do not contain a note or endorsement thereon to that effect. In other words, neither the record of the statements itself, nor Baria’s oral evidence shows that the statements were read over to the concerned persons after they were recorded. Rather, it establishes that they were not read over to the concerned witnesses. The alleged discrepancies, contradictions or omissions in the evidence are to be appreciated by keeping this in mind. This is apart from the fact, as observed earlier, that most of the contradictions and omissions that have been brought on record are insignificant and immaterial. The only significant and material omission would be to state the names of certain accused persons as being present in the mob, in case of those witnesses who claim to have known them from before.

835. This was regarding the possible inaccuracy of the record on the basis of difference in language and failure to read over. However, what appears to me is that the record has not been honestly and sincerely made, as is clear from the following.

A] In the recorded statements of all the occurrence witnesses, there is a mention of one ‘Social Worker Thakkar’ as being present in the mob during riots. This has been brought on record by the learned Advocates for the accused. ‘Social Worker Thakkar’ had died much before the incident. There is no dispute about this. Now, this has been brought on record by the defence to show how untruthful all the witnesses are, and how there was a conspiracy of all of them to name a person falsely which is exposed because that person is proved to have died earlier. It is also vehemently contended by Shri Shirodkar that being a social worker, he was a leader of the Hindu community and therefore, he was sought to be falsely implicated by all the occurrence witnesses. The claim of all the witnesses having conspired to falsely implicate ‘Social Worker Thakkar’, is ridiculous, as has been discussed earlier. It may be added that the statements of the occurrence witnesses were recorded on different dates. The statements of Sailun [P.W.32] and Shehzad [P.W.28] were recorded on 06/03/2002 while the statements of Raees [P.W.27], Taufel [P.W.26], Nafitulla [P.W.31], Nasibulla [P.W.30], Yasmin [P.W.29], Sehrunnisa [P.W.40] and Sahera [P.W.35] were recorded on 04/03/2002. Except the women, all these witnesses were very severely and badly injured. The injuries had endangered their lives. Under these circumstances, that they had conspired to falsely implicate ‘Social Worker Thakkar’ [who was already dead] falsely and that too when all of them were very badly injured, is impossible to believe or accept. In the F.I.R. there is a mention of ‘Karyakarta Thakkar’. [Social Worker Thakkar]. It is clear from PI Kanani’s evidence that it was a mistake of the writer – i.e. Baria – to have recorded accordingly. Having put the name of ‘Social Worker Thakkar’ in the F.I.R. by mistake, the same mistake has been made in all the statements. This indicates that in reality no statements were properly recorded. The facts already known or ascertained from one witness were put in the record of another’s statement. In the serious law and order problem which the police were facing at that time, this was very convenient for Baria to do. It is, otherwise, impossible to explain this common mistake in the statements of all the occurrence witnesses.

B] There is also another clear indication of the statements not being truthful. The evidence shows that the name of the wife of Aslam [P.W.42] who died in the incident was actually Shabnambibi. The name of the wife of Firoz Aslam Shaikh who also died was Ruksana. The evidence in this regard, is not in dispute. In fact, PI Kanani made the necessary corrections in the notes of the post-mortem examinations with respect to these persons. In the F.I.R., however, the name of Aslam’s wife is given as ‘Zainabbibi’ and the name of wife of Firoz is given as ‘Shabnambibi’. This is an obvious mistake. It is quite possible to believe that in the situation that existed at that time when Zahira and others were in a shock, such a mistake could occur in the F.I.R. The mistake could be either of Zahira or of the person who recorded the F.I.R. – i.e. the writer and/or PI Baria. What is interesting is that this mistake in the names has been made by all the occurrence witnesses, if their statements recorded by PI Baria are to be believed to be an accurate record of what they stated to him. In other words, for believing the record of the statements of the occurrence witnesses made by Baria to be accurate, one has to believe that all these persons – though their statements were recorded at different times and in some cases on different dates – made the same mistake – i.e. in giving the name of the wife of Aslam and of giving the same wrong name. Similarly, they also made a mistake in giving the name of the wife of Firoz; and that too, by giving the same mistaken name – i.e. Shabnambibi. That 10 persons would independently and wrongly name ‘Shabnambibi’ as ‘Zainabbibi’ and ‘Ruksana’ as ‘Shabnambibi’ is nothing but an absolute impossibility. This shows that the statements of the occurrence witnesses were not properly – if at all – recorded.

C] It is contended by the learned Advocates for the accused that the statements are so identical, that there is a not even a difference of coma; and that therefore this shows that they are not genuine. I am in agreement with the learned Advocates. It is extremely doubtful whether the statements of the various witnesses are a record of what was stated by them. In the statement of Saherabanu [P.W.35] she has mentioned about the limbs of ‘both her brothers’ being tied by the mob. In Saherunnisa’s statement also, she speaks of the mob tying down the limbs of ‘both her brothers’. Saherabanu’s mentioning about the brothers was proper, but Saherunnisa’s was certainly wrong and she would never call her sons as her brothers. This shows that what was recorded in one statement has been mechanically copied out. Though a reference to these statements was made by the Advocates for the accused themselves to point out that they cannot be relied upon as a genuine, true or authentic record, a possible objection that it is impermissible for the Court to read the statements in view of the bar created by Section 162 of the Code has been considered by me. This comparison of record of the statements does not amount to making the use of the statements. It is not that the facts recorded in the statements are being referred to or relied upon. Looking at them, for ascertaining the correctness of the claim of they being manipulated or concocted, raised on behalf of accused, would not attract the prohibition against their use laid down by Section 162 of the Code.

D] In the F.I.R., there is a mention that Yasmin had gone to her parents place at Chhota Udepur. This is supposedly said by Zahira and accordingly recorded by PI Baria. However, since Yasmin was actually present, it is highly unlikely that Zahira would state so. There appears to be an obvious mistake caused due to the situation, in which not only the victims, but the police were also tense. However, Baria had himself come in contact with Yasmin. Having seen Yasmin at the scene of the offence, it was impossible for PI Baria to have recorded that Yasmin had gone to Chhota Udepur, had he calmly and sincerely recorded the statements. He would have at once questioned Zahira and Yasmin on this, so as to ascertain the facts.

E] It has been seen earlier during the discussion of the evidence of Shehzad [P.W.28] that, that he stated before the police about falling unconscious on being hit by a stone is brought on record to contradict him. It has also been discussed that it is not possible to believe that Shehzad indeed made that statement particularly when he denied having made it. How it is incorrect factually has also been discussed. The point which is to be made here is somewhat different. The question is, on the face of the injuries sustained by Shehzad, how could Baria believe and accept that he was hit by a stone on his head without questioning Shehzad further. Shehzad’s statement was recorded while he was admitted in the ward. Baria made no attempts to ascertain from the doctor as to whether Shehzad was in a fit condition to make a statement. This shows that Baria did not even bother to see what were the injuries sustained by Shehzad.

This strengthens my opinion that the record of the statements under Section 161 of the Code, as made by Baria, cannot be relied upon.

836. When Sailun and Shehzad themselves state not having said anything to the police, that certain matters are actually found, in what purports to be a record of their statements, is to be viewed in this background. That Sailun’s statement is concocted is contended by the learned Advocates for the accused themselves. I agree with them in as much as such possibility seems to be very true and real to me. In fact, I doubt whether PI Baria was really interested in efficiently investigating into the matter. The attitude of PI Baria, while giving evidence, strengthens this doubt in my mind.

837. Irrespective of whether the investigation was deliberately perfunctory, or that because of the difficulties of the situation, the I.O. could not do it properly, the fact remains that the record of the statements of witnesses, as made by PI Baria, cannot at all be called as ‘authentic’, or ‘reliable’ in either case. Obviously, not much value, under the circumstances, should be given to the ‘contradictions’ and ‘omissions’ established on the basis of such record.

838. In Baladin and others V/s. State of U.P., A.I.R. 1956 SC 181, the Supreme Court of India has dealt with this aspect. In that case, the Hon’ble Supreme Court came to the conclusion that the police officers concerned with the investigation of the case did not fully realise the gravity of the situation and did not take prompt steps to collect evidence. The Hon’ble Supreme Court observed that:

"The remissness on the part of the police officers has had a very adverse effect on the prosecution case and has added to the difficulties of the court in finding out who the real culprits were". [Para-7].

The Supreme Court of India referred to the observations of the Sessions Court whereby it was observed that the contradictions in the statements of the concerned eyewitnesses, as compared with the statements recorded by the I.O., should not be allowed to affect the credibility of those witnesses because there were clear indications that he did not faithfully record the statements of those witnesses. In appeal, the High Court also held that the investigation suffered from lack of thoroughness and quickness, with the result that statements of witnesses were recorded in the ‘most haphazard manner’ and many matters of importance and significance to the case were omitted. However, the High Court had acquitted the accused who were appellants before it, whose names did not find a place in the record made by that police officer. Their Lordships of the Supreme Court of India did not approve this and observed that the High Court had fallen into an error in doing so. The Supreme Court observed:

"...it (High Court) rejected reliable testimony with reference to that very record which it had condemned as unreliable." [Para-11].

839. After observing that the record made by an Investigating Officer has to be considered by the Court only with a view to weigh the evidence actually adduced in Court, the Supreme Court said as under:

"If the police record becomes suspect or unreliable...... on the ground that it was deliberately perfunctory or dishonest, it looses much of its value and 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 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 of the material on the record as against each individual accused." [Para-11].

The observations of the Supreme Court of India in the aforesaid reported decision leave no manner of doubt that not much importance can be given to the so called ‘contradictions’ and ‘omissions’ where the authenticity or reliability of the police record is itself in doubt. These observations cannot better apply to any other case than the present one. The aforesaid discussion leaves no manner of doubt about the unreliability of the record made by PI Baria.

840. What needs to be emphasised is the fact that the name of a culprit though known, was not given to the police by the witness cannot lead to the automatic rejection of the evidence of the witness. As already observed, it is nothing more than the omission to state a material fact, the effect of which will vary from case to case.

841. In Dana Yadav’s case [supra] wherein the Supreme Court of India had occasion to discuss this aspect it was observed by Their Lordships that ‘there could not be an inflexible rule that if a witness did not name an accused before the police, his evidence identifying the accused for the first time in Court cannot be relied upon’. [Para-9]. Some instances where failure to name an accused in the statement made before the police, though known, would not result in drawing an adverse inference against the prosecution, were given in the judgement by way of illustrations and it was clarified that they were not exhaustive. There may be several reasons for a witness not to name the culprit or even to state that the culprit was known to him and if the reasons are found acceptable, the evidence of the witness cannot be doubted, only due to such failure. A perusal of the reported judgement in the Dana Yadav case leaves no manner of doubt that such omission on the part of the witness would only require a deeper and closer scrutiny of the evidence and does not warrant its outright rejection. In the said case, the Supreme Court of India did not accept the testimony with respect to the identification of the appellant before the Supreme Court of India, because there was no evidence in that case, that the appellant was known to the identifying witnesses from before.

842. In Prem Versus State of Maharashtra 1993 CRI. L.J. 1608, a Division Bench of the Bombay High Court had occasion to discuss the effect of the victim not naming the assailant before the police, though previously known. Their Lordships observed that the victim had suffered a brutal assault and survived owing to sheer luck. Their Lordships accepted the explanation of the victim in that regard – viz. ‘that due to fear he had not disclosed the names of the accused’. Thus, fear also can be recognised as one of the factors which would prevent the victim from naming the assailants before the police. In the instant case, Taufel, Raees, Shehzad and Sailun all had been very badly injured and the condition of all of them was serious. How tense the situation was, is clear from Baria’s evidence who was apprehending some attack even during the funeral rites of the deceased. If this was the situation, the victims must have been under tremendous fear while in the hospital also. There is nothing to indicate that any police protection was provided to them in the hospital. Under these circumstances, if the victims have not named some of the assailants, though known to them, the same would not be sufficient to discard their testimony.

843. It is also contended that, according to the victims/witnesses the offenders were ‘unknown’. The support to this claim is sought by pointing out that the victims had described the offenders as a ‘mob of Hindus’ or ‘mob of persons’; and that even in the hospital the history which they gave to the doctors was of ‘assault by mob’ only. First of all, the history as ‘assault by mob’ or ‘assault by lakdi’, as is found in hospital records, was not based on the version of the concerned injured witnesses. According to Dr. Meena Robin [P.W.46], the history in respect of all the injured, including himself, was given by Raees [P.W.27] only. That this is not believable in view of the failure of Raees to name his own colleagues and the evidence about his condition not being good, has already been discussed. Further, the history given by him as ‘assault by lakdi’ is also incorrect in view of the incised wounds on his body. Thus, the least that can be said is that by whom exactly and under what circumstances the history was given is not clear. Looking to the situation, it is obvious that it was recorded hurriedly in the midst of a crowd and confusion and it is impossible to hold that it was obtained from the victims themselves, or at any rate, as a result of a proper and satisfactory probe. However, even if the unreliability of the hospital record and the police record in this context is ignored, it cannot be accepted that ‘mob of Hindu persons’ or ‘a mob’ or ‘public’ would mean that the assailants were ‘unknown’. A fundamental question needs to be addressed; and that is, whether the history as ‘assault by a mob’ or ‘assault by public’ is in any way, contradictory to and/or inconsistent with the claim of the victims that they knew some of the persons in the mob.

844. Not only I do not agree with the contention raised, but after a careful consideration of all the relevant aspects, I am of the opinion that ‘assault by mob’ or ‘assault by public’ is a proper description of the happenings. The question is how the incident was perceived by the victims at the material time. The victims had been attacked by Hindus or a Hindu mob. From their point of view, there was no other interpretation of the incident. As such, even if the names of some of the offenders who were known to the victims are not found in their statements, it cannot discredit the concerned witnesses. I find that the basic supposition about the behaviour or reaction or perception of the witnesses regarding the incident, is wrongly presumed when one expects that they should have mentioned specifically in spite of the situation prevailing at that time, that a few of the offenders were known to them. If a thought is given to how the victims would express as to what had happened, the narration as ‘assault by mob’ or ‘assault by public’ or ‘assault by Hindu mob’ etc. appears to be giving a rather accurate version of the incident. This would be more natural than stating as ‘assault by Jitu and about 1,000 others’ or ‘Jitu, Sanju, Jayanti and about 1,000 others’ etc. etc. The attack was indeed by a Hindu mob with no particular enmity towards any particular victim. The actions of the individual accused were only a part of the actions of the mob and naturally were perceived as actions of the mob by the victims and witnesses. In my opinion, under these circumstances, the history of the incident as ‘assault by mob’ or ‘assault by public’ is proper and that is how it was perceived by the victims and witnesses. Whether anybody from the mob was known to the witnesses was a matter which could be revealed by the witnesses only on specific questioning. In the light of the evidence, as to the condition of the injured, the tense atmosphere, the heavy burden on the police, it is impossible to hold that any attempt to elicit this specific information against the offenders was made, or the injured witnesses were in a position at the material time to give such details.

845. It is contended that the offenders were not named by the witnesses, in spite of having been questioned about it. To support this contention, much emphasis is placed by the Advocates for the accused on the evidence of PI Baria. In the cross-examination Baria has agreed with the suggestions given to him that while recording the statements ‘the police do ask about the name of the culprit, his address etc.’, that ‘the police do ask the witness to give full name of the offender’, that ‘the police invariably ask the witness to give full names, that they invariably try to ascertain the detailed address of the offender’ etc. etc. All these suggestions which show that PI Baria always investigates in an efficient manner, have been accepted by him. PI Baria has agreed that if in any statement under Section 161 of the Code such information viz. – name, full name, address and description etc. of the offender is not found, that would mean that the inquiries in that regard were made, but no information regarding these aspects were given by the witnesses. I am not inclined to accept the evidence of PI Baria on this aspect. He has naturally accepted the suggestions put to him because that would show that he usually investigates every case efficiently; and that in the instant case also, he investigated efficiently. These statements being self serving, it is very convenient for him to accept the same as true. However, from the various weaknesses apparent in the record made by him, it is clear that the statements have not at all been properly recorded by him. Further, in the situation that was prevailing at the material time, it was impossible for PI Baria to have coolly and calmly elicited such details from the victims who were badly injured and under fear. Moreover, no statement contains a negative to the effect that ‘I do not know the name’, ‘I do not know the address’, ‘I cannot give the description’ etc. etc.; and if Baria’s claim that he never omitted or added anything from the narration of the witness is accepted, then how and why the negative statements made by the witness are not recorded, is unanswerable.

846. As a result of the aforesaid discussion, I have no hesitation to conclude that the evidence of the supporting eyewitnesses regarding the identification cannot be discredited on the ground that they had not named, or had not given the description of the accused identified by them to the police, though they were previously known.

847. Why then, the evidence of these witnesses, should not be believed as regards the identification of the accused as made by them, particularly when, a discussion of their evidence shows that there is nothing contradictory, incredible, improbable or inconsistent in it? A number of contentions have been raised as regards the general unreliability of the supporting occurrence witnesses, which may be examined here.

848. It has been emphasised that the accused are poor victims of a well planned conspiracy. It was submitted that the supporting eyewitnesses have been tutored by Smt. Teesta Setalvad. Secondly, it was submitted that due to the fear of the Supreme Court of India and of the persons who secured an order from the Supreme Court to have a retrial, the witnesses are keen on ensuring that the accused are convicted, and are giving evidence in furtherance of that object. It is submitted that for the same reason, even the police witnesses are making improvements in their evidence by stating facts not deposed to by them in the previous trial. I find no substance in these contentions.

849. The contention that the witnesses had been tutored by Smt. Teesta Setalvad is based only on the undisputed fact that Raees and Shehzad were in contact with her and had spoken to her about the case. The interest of Smt. Teesta Setalvad and her organisation in the present retrial is obvious and no attempt has been made by the concerned organisation to deny that. It also appears that Raees and Shehzad were contacted by them to ensure that they appear as witnesses before this Court. These witnesses have specifically denied Smt. Teesta Setalvad having told them as to what evidence was to be given in the case. I have considered the matter. Mere discussion about the case would not necessarily indicate ‘tutoring’. It is not an accepted proposition that the witnesses are never to be contacted by anyone, or spoken to about the matter regarding which they are to depose. A number of things can be told to the witnesses, such as, not to be nervous, carefully listen to the questions put to them, state the facts before the Court without fear; and I do not think that this can be considered as objectionable, morally or legally. Tutoring a witness is quite different from guiding him as to his behaviour, as it should be in the witness box. In this case, the injured witnesses were obviously in such a state of mind that without the active support of someone, they might not have come before this Court, to give evidence at all. If such support, encouragement and even advice is provided to them, it cannot be called as ‘tutoring’. Since the witnesses were in contact with Smt. Teesta Setalvad and were speaking to her about the case, the possibility of they having been tutored by her is certainly required to be examined, but simply because of that, an inference that they were tutored, cannot, automatically, be drawn.

850. After carefully considering the matter, it does not appear to me that in the instant case, witnesses had been tutored.

851. First of all, from the testimony of the occurrence witnesses, they do not appear to have been tutored. The signs of having been tutored were not found while analysing their evidence. While discussing the evidence of these witnesses, it has been noted that they appeared to be truthful. They have avoided attributing false overt acts to the accused identified by them which would have been quite easy for them. A number of instances are found in the evidence of these witnesses where they could have implicated more accused than identified by them or where they could have attributed more serious acts to the accused, identified by them, which has not been done. Secondly, they could be tutored only by a person who knew the facts. It is difficult for a person who was not present at the time of the incident to tutor an occurrence witness and if at all this can be done, it would be based on the records of the case, which does not seem to have happened in the instant case. Even some grave incriminating matters, though found in the police record of the statements of these witnesses, have not been stated by them in their evidence, sometimes even after confronting them with such record. Thirdly, in this case, the happenings of the incident and the manner in which it took place, is not in dispute at all. So the aspect of tutoring would be confined to the identification. It seems quite unlikely that Smt. Teesta Setalvad would be able to tutor to identify a particular person as the culprit. It is not easy to tutor one to identify another not previously known to the one or even to the person tutoring. Tutoring of this type would require the person tutoring the concerned accused and the concerned witnesses to be together for a reasonable time or on one or more occasions. Moreover, the tutoring in such cases would be in consonance with the police record or the prosecution case, which has not happened in this case. ‘Painter’ and ‘Pratap’ whose names figured in the F.I.R., and who according to the prosecution case are Accused No. 5 and Accused No. 10 respectively, have not been identified by any of these witnesses. Probably being aware of this weakness in the contention of the defence, a feeble attempt was made to show how it would be possible by suggesting to PI Kanani that he had shown enlarged photographs of the accused persons to the supporting occurrence witnesses with the help of Smt. Teesta Setalvad and one Raees Khan, which has been denied by him. The witnesses themselves were not suggested that they were shown any photographs of the accused persons and were tutored to identify them. That this is clearly an afterthought of the defence is also clear from the fact that when Taufel and Raees were examined, the learned Advocates for the accused had made a request that after identification of a particular accused by pointing out the name of such an accused may not be uttered loudly. It is obvious that this precaution, which the learned Advocates for the accused wanted to be taken in the process of recording of evidence, was not consistent with the theory of the witnesses having been shown enlarged photographs of the accused. Further, the witnesses have not identified the same accused. There has been not even one wrong identification where the accused were identified by naming and pointing out. While appreciating the evidence, the manner in which it is given, the manner in which the varying suggestions are given in the cross-examination, are often of significance. It was put to PI Kanani that he had done the tutoring with the help of Smt. Teesta Setalvad, which has been not only denied, but ridiculed by PI Kanani, by stating that he was not even on talking terms with Smt. Teesta Setalvad. PI Kanani stated that it was because she had made allegations against the investigating agency. This statement of PI Kanani has to be accepted as true. Even Zahira does not say that any photographs of the accused were actually shown to her by Smt. Teesta Setalvad. All that she says is that Smt. Teesta Setalvad was to procure the photographs. Thus, till Zahira left for Vadodara, no photographs of the accused are shown to be available to Smt. Teesta Setalvad. Under the circumstances, it cannot be accepted that any photographs of the accused were shown to the occurrence witnesses by Smt. Teesta Setalvad, or by PI Kanani, who was not in touch at all, with any of them. It may be recalled that the accused were never made to sit in the Court hall according to the serial numbers given to them in the charge-sheet, or in any other fixed order. Their names were never loudly being called out in the Court. It is, under these circumstances, that the identification in the Court has taken place. In some cases, while identifying a few out of the 17 accused, the names have also been given by the identifying witnesses. There has been no wrong identification by any of the identifying witness in such cases. The identification has taken place under the observation of the Court enabling the Court to view the actions of the identifying witnesses. It does not seem to me that there is any substance in the contention of tutoring.

852. In the context of witnesses having been tutored, an argument advanced by Shri V.D. Bichu, the learned Advocate for the accused needs to be dealt with. [pages 19-20 of the arguments filed by him at Ex.522/A]. It is contended that since the order for holding a retrial and that too, out of State of Gujarat was secured from the Supreme Court of India by the N.G.O. – Citizens for Justice and Peace – for obvious reasons, it become a matter of prestige for them. It is contended that it was therefore ‘only human to expect that efforts would be made towards their further success, which could be achieved by securing conviction of at least a few of the accused persons’; and that therefore, the witnesses were bound to be tutored. It is dangerous to accept such propositions. On the basis of the same arguments, it can be said that it also became a matter of prestige for those by making allegations against whom and because of whose blameworthy conduct, a retrial was ordered out of State of Gujarat, to show that there was nothing wrong whatsoever, in the previous trial. The said N.G.O. had made allegations against the State machinery itself, which were believed to be true at least substantially by the Supreme Court of India while ordering a retrial out of the State. Can it, on the same logic, be said that it was only human to expect that efforts would be made for the failure of the N.G.O., which could be achieved by making the witnesses turn hostile again? This, if accepted, would change the entire perspective in which the evidence is required to be appreciated. The manifest antipathy shown by the hostile witnesses to the entire prosecution case cannot be the result of a mere desire to ensure the acquittal of the accused. In this context, the contention advanced by Shri Shirodkar to the effect that the accused have not influenced the hostile witnesses, and that the accused are poor persons having no influence, needs to be taken into consideration. While this appears to be true, judging by the social and financial status of the accused persons, the fact remains that there are others who are powerful enough to extend great financial support and legal services to the hostile witnesses. However, the evidence can neither be appreciated on the basis that the said N.G.O. is likely to have a motive which would induce them to tutor the witnesses, nor on the basis that the State authorities or the State Government have a motive to show that there was nothing wrong in the previous trial, or that the witnesses had not turned hostile due to any lapses on the part of the State machinery which would induce them to make the witnesses turn hostile again. Even if the alleged bad motives of the N.G.O. as attempted to be attributed to it by the Advocates for the accused are accepted for the sake of arguments, there would be no interest for them to secure conviction of the accused. Rather their interest would be to show that Zahira and others are being manipulated. Though it might have become a matter of prestige for the said N.G.O. to show that they had fought for truth, or, at any rate, what was believed by them to be the truth, it would not mean that they would tutor witnesses to falsely identify a few accused for securing a few convictions.

853. It is pointed out by Shri Mangesh Pawar, the learned Advocate for the accused that the Accused No. 15 – Dinesh Rajbhar – had lodged a written complaint in this Court, against Smt. Teesta Setalvad for having threatened him in front of a police constable by saying ‘tujhe main dekh loongi, aaur sabko chhodoongi nahin’. On this, it is contended that this shows the extent of interestedness of Smt. Teesta Setalvad and the grudge which she bore against the accused persons. When the Court asked whether the accused wanted any action to be taken or any inquiry to be made into the complaint, it was stated that no action was intended to be taken and the matter was only to be kept on record. A mere putting an allegation on record; without expressing a desire to establish the truth of it, at least prima facie, will not enable this Court to draw any inference regarding the happening of the alleged incident or at any rate, the exact manner in which it happened.

854. That the witnesses are scared of the Supreme Court of India and of the persons who got the order of retrial [meaning Smt. Teesta Setalvad and her organisation], is also without any substance. It may be observed that there are a number of witnesses who turned hostile even during the retrial. What is really significant is that a number of witnesses were not ready to support the prosecution even to the extent they had done in the previous trial. Smt. Jyotsnaben Bhatt [P.W.43], Kanchan Mali [P.W.44], Avdhut Nagarkar [P.W.23] and even Zahira and her family were not ready to admit even the matters which had been admitted by them in the previous trial. In my opinion, not only the contention is without any substance, I find that the hostile witnesses were more determined not to speak the truth during the retrial.

855. During the cross-examination of PI Kanani, it was brought on record that he has stated some facts which he had not stated in the previous trial and this is stated to be a result of the desire to secure a conviction due to the fear of the Supreme Court of India. It was suggested to him that whatever additional evidence – i.e. – evidence not given in the Court at Vadodara, but given here – he gave, was false. PI Kanani while denying this categorically stated that it was supported by the case diary. I do not find that the ‘additional evidence’ as has been referred to by the cross-examiner is about any new facts. Rather than calling it as ‘additional evidence’, it can be properly termed as ‘detailed evidence’. Moreover, PI Kanani has given a reason as to why he had given detailed evidence which may be best mentioned in the very words used by PI Kanani:

856. According to me, this explanation given by PI Kanani is rational, logical and I believe the same as true. PI Kanani has stated that whatever ‘additional evidence’ has been given by him is based on the record and is supported by entries in the case diary. Even otherwise, no attempt has been made to show or challenge that the so called ‘additional evidence’ is not true. The inference that it is not true is expected to be drawn only from the fact that he did not give such a detailed account of the investigation in the first trial. This cannot be accepted for a moment, in the light of the explanation given by PI Kanani. If for whatever reason, the matter is looked at with more seriousness, then it cannot be called as unfair. If the fear of the Supreme Court of India makes an Investigating Officer to give up a casual approach and be serious about the prosecution, the accused cannot be said to have been prejudiced thereby. On the contrary, that is how the approach of an Investigating Officer should always be and a sense of responsibility should always be present in his mind so as to prevent him from acting in an indifferent manner. Since the ‘additional evidence’ as given by PI Kanani is found to be true, there is no substance in the contention advanced by the learned Advocates for the accused.

857. Further, the very suggestion that because of the fear of the Supreme Court of India, false evidence with the intention of securing conviction has been given is absurd. The Supreme Court of India had not found the accused guilty which is obvious from the fact that they were not convicted by the Supreme Court of India. The very fact that a retrial was ordered indicates that the Supreme Court of India felt the necessity of adjudication of the guilt or otherwise of the accused persons. The Supreme Court of India’s order could not be interpreted as an order whereby the Supreme Court of India expected a conviction to be returned. This is apart from the fact that during the retrial several witnesses, by giving false evidence recklessly, have indicated that at least they had not any fear of the law.

858. It is also contended that in view of the defective and insincere investigation the version of the prosecution has become doubtful and ought not to be believed. The criticism of the investigation being defective, as made by the Advocates for the accused, is undoubtedly correct. PI Baria [P.W.72] did not carry out the investigation properly and did not take even some elementary and routine steps. Even the investigation carried out by PI Kanani [P.W.74] cannot be said to be very proper, but the reason given by PI Kanani in that regard is that the lack of cooperation from the persons in the locality and this appears to be true. It appears that he was unable to get sufficient information in spite of making efforts and he could arrest only a few of the offenders. It is a fact that PI Kanani did not get the identity of any of the accused confirmed from the occurrence witnesses during the course of investigation. Though this is not fatal, since all the accused were not named in the F.I.R. or in the statements of occurrence witnesses, it was desirable to get the identity of those who were not named, confirmed from the occurrence witnesses. The question however, is firstly whether this defective investigation was deliberate and secondly, whether it was for falsely implicating the accused. As regards PI Baria, at least a doubt arises that the investigation was deliberately defective, but lacunae therein were certainly not kept for implicating the accused. The grievances of the Advocates for the accused that the investigation was deliberately done in a defective manner, so as to implicate the accused, has no substance. The wild allegations of manipulation of the F.I.R. etc. have no substance, as discussed earlier. The easiest way of manipulating the record for implicating the accused would have been to record false statements of the occurrence witnesses. This has not been done. It has been brought on record that no new names – i.e. – not given in the F.I.R. [Ex.136] of any culprits or additional information about them could be gathered by PI Kanani from the statements of the occurrence witnesses recorded by PI Baria. The record of the statements under Section 161 of the code is in all probability manipulated. Certainly however no manipulation has been done for implicating the accused. The possibly falsely recorded statements merely repeat the already available information, and thus the manipulation of false record was not made for giving more and more names of the culprits or for giving a more violent and active role to those already named. No manipulations have been done with regard to the articles sent for examination to the Forensic Science Laboratory, for attempting to show the connection of these articles with the offences in question, which was certainly not that difficult. If PI Baria and PI Kanani could go to the extent of making false entries about the lodging of F.I.R., planting human bones and recording imaginary statements of the occurrence witnesses, why could they not record at least supplementary statements of the occurrence witnesses showing that the identity of the accused persons was confirmed during the investigation, is impossible to understand. This leaves no manner of doubt that whether deliberate or not, the lapses and lacunae in the investigation certainly have not prejudiced the accused. If the lapses or lacunae were deliberate, they were not designed to implicate the accused. If these lapses have resulted in the loss of valuable evidence, the accused naturally stand benefited by it. It is not even suggested how proper investigation could have exonerated the accused. As it is, the case stands on the evidence of the identifying witnesses and no proper efforts to collect any other evidence were made during the investigation. This is not in dispute, but the claim is that this was done to implicate the accused, which is totally unacceptable.

859. … Efficient investigation might have resulted in the arrest of many more culprits, and/or would have furnished more material to establish the involvement of the accused. The cases where the culprits are one or two, efficient investigation can show that somebody else other than the one named or originally suspected – can also be equally or even more suspected; and when such steps are not taken, prejudice can be complained of. Failure to verify an alibi can also give rise to a legitimate grievance of prejudice. In a case of this type, efficient investigation can reveal the involvement of some others but how it will help those already implicated because of that, is difficult to understand. There is absolutely nothing in this case, to indicate that by defective investigation the accused have been prejudiced.

860. There is no substance in the contention that the supporting occurrence witnesses have been tutored. There is also no substance in the contention that due to fear of the Supreme Court of India, the witnesses are deposing falsely during the retrial in order to ensure that the accused are convicted. On the contrary, a number of witnesses turned hostile during the retrial also and have shown more antipathy to the prosecution case than was shown by them earlier. The contentions about statements under Section 161 of the Code not being accurate or true and being manipulated appears to be true, but the evidence indicates that the manipulated version was not more adverse to the accused or that the manipulation is not indicative of a design to implicate the accused. The contention that the investigation was not efficiently done; and that it is defective, is also correct, but the defective investigation, nevertheless, has not affected the accused in any way. Because of the defects, the evidence of occurrence witnesses, including the evidence of identification of some of the accused by them, cannot be discarded. There is nothing improbable, unbelievable or unreasonable in the identification evidence.

861. Thus, the general contentions about tutoring, about interest of the N.G.O., about fear of the Supreme Court of India, defective investigation, do not impress me and do not make me doubt the reliability of the evidence of the supporting occurrence witnesses regarding the identity. Moreover, while appreciating the evidence involving the accused, the entire circumstances established by the evidence ought to be kept in mind. In this case, there is circumstantial guarantee to support the theory of the persons from the locality being involved in the incident. Smt. Rao, the learned Spl. P.P. is right in saying that looking to the happenings, it is not possible to believe that among the mob of rioters local residents were not present and had not taken any active part therein. In this context, the silence and the attitude not to disclose anything of the witnesses in the locality is significant. The accused who are residents of the same or nearby locality have chosen to express a total ignorance of the happenings including the existence of the Best Bakery itself, which is obviously false. They have denied not only the knowledge of the incident, but also of one another, other witnesses from locality, the locations etc. Thus, there exists no explanation of the prosecution evidence. There is also substance in the contention of the learned Spl. P.P. that had the offenders or at least a number of them not been known to the victims they would not have got down from the terrace in the morning. The palpably false defence of the accused certainly cannot take place of proof, and even if held as not a factor strengthening the prosecution case, the resultant absence of any explanation offered by them of the evidence against them certainly does not weaken the prosecution version.

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865. Appreciation of evidence in riot cases presents some peculiar difficulties, primarily because of the large number of victims and the large number of offenders. A reference to some of the authoritative pronouncements of the Apex Court dealing with this aspect of the matter would prove useful and provide guidelines in the matter of appreciation of evidence in such cases.

866. In Masalti and others V/s. State of Uttar Pradesh AIR 1965 Supreme Court 202, the appellants before the Supreme Court had been convicted by the trial Court, inter alia, of offences punishable under Section 302 of the I.P.C. r/w. Section 149 of the I.P.C. and the High Court had upheld the conviction. In dealing with the oral evidence, the High Court had taken into account the fact that the witnesses belonged to a particular faction and therefore, must be regarded as partisan. The High Court confirmed the conviction of only those accused persons against whom 4 or more witnesses had given a consistent account. Before the Supreme Court of India, it was contended that the test applied by the High Court for convicting the appellants was mechanical. The Supreme Court of India has observed that while it was true that the quality of the evidence is what matters and not the number of witnesses who gave the evidence, still sometimes, it is useful to adopt the test like the one which the High Court had adopted. The Supreme Court of India has observed as follows:

867. In Chandra Shekhar Bind and others V/s. State of Bihar, AIR 2001 SUPREME COURT 4024, the decision of the Supreme Court of India in Masalti’s case was referred to and it was held that that there is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly; and that though even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly, still when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. Thus, though there is no rule of law, that the testimony of a single witness would be insufficient to convict an accused on the basis that he was a member of an unlawful assembly, still, as a rule of prudence and not of law, the Court may, in appropriate cases, insist on evidence of identification by at least two witnesses. From the observations made by the Supreme Court of India, it is clear that it would be rather unsafe to rely on the testimony of a single witness in most of the riot cases, unless either the witness is considered as ‘wholly reliable’, or unless his evidence is corroborated by some other independent evidence.

868. Keeping all these relevant aspects in mind, I now proceed to discuss the evidence against each accused to come to a conclusion as to whether the charge against him is proved or not.

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926. In the peculiar circumstances, and considering the role attributed to him (Accused No. 21– Ravi Rajaram Chauhan), coupled with the fact that the information of his involvement was obviously reached much later to the investigating agency – with the source not made known to the Court – I think the possibility of this accused being guilty is no more than the possibility of him being innocent.

927. In order to ascertain what offences have been committed by the accused who are found to have been the members of the unlawful assembly, it needs to be examined as to what offences were committed by the members of the unlawful assembly. In view of the earlier discussion, the accused persons who have been held to be members of the unlawful assembly at the time when those offences were committed would be guilty in respect of those offences by virtue of the provisions of Section 149 of the I.P.C. The members of the unlawful assembly have committed [apart from being members thereof] an offence of rioting, punishable under Section 147 of the I.P.C. The members of the unlawful assembly had set the handcarts, motorbike, rickshaw tempos, etc., on fire and had also set on fire the Best Bakery building, the ‘wakhar’ of Lal Mohammad [P.W.36], house of Aslam, etc., and thereby committed offences punishable under Sections 435 and 436 of the I.P.C.

928. The evidence shows that the members of the unlawful assembly robbed maida, ghee, sugar, etc. which was in the bakery. This amounts to dacoity as all the ingredients of dacoity are present and established by the evidence.

929. Though there is no direct evidence about the members of the unlawful assembly committing criminal trespass, the robbing of the maida, ghee, sugar, etc., could not have been done without making an entry inside the house. Further, though the manner in which the ‘wakhar’ of Lal Mohammad was set on fire, is not clear, obviously, by making an entry inside, fire was set.

930. Also, there is evidence that the rioters had dragged Kausarali and Lulla from the first floor. Thus, the members of the unlawful assembly had committed criminal trespass by entering inside the Best Bakery building and the ‘wakhar’ of Lal Mohammad and it is clear that the said criminal trespass, which amounts to house trespass, was committed in order to committing a number of offences, including an offence punishable with death. Setting fire to the wood below the Best Bakery building is an act which, in the event of deaths having been caused on that account [as have been caused actually], would amount to an offence of murder. The members of the unlawful assembly therefore committed offences punishable under Sections 449, 450 and 451 of the I.P.C.

931. Also, the members of the unlawful assembly had assaulted the victims by dangerous weapons and caused grievous hurt to the victims. The members of the unlawful assembly had also caused hurt to the victims by burns. Thus, the offences punishable under Sections 326 of the I.P.C. and 324 of the I.P.C. were committed by the members of the unlawful assembly.

932. Prakash, Baliram and Ramesh, as also Firoz and Nasru, who were assaulted in the morning, died due to the injuries inflicted on them by the members of the unlawful assembly and thus in the morning also, the offence of murder was committed.

933. Lastly, the members of the unlawful assembly committed an offence punishable under Section 188 of the I.P.C. It is clear that the fact that curfew was in force was known to the members of the unlawful assembly and, in any case, there is positive evidence of Bhimsinh Solanki [P.W.66] that announcement that curfew had been imposed was being made by him while patrolling. Some of the accused have also committed offences punishable under Sections 144 of the I.P.C. and 148 of the I.P.C.

934. In my opinion, on the facts proved, the offence punishable under Section 342 of the I.P.C. cannot be said to have been committed. The inmates of the Best Bakery building, in effect, had been prevented from coming out of the building. Such effect was however only incidental, resulting from the fire that was set and the presence of the rioters outside the building.

935. As a result of the aforesaid discussion, it is clear that the accused whose presence in the unlawful assembly in the morning, as a member thereof is proved, are liable for the offences committed by the members of the unlawful assembly in the morning. The accused whose presence, as members, in the unlawful assembly in the night is proved, are liable for the offences committed by the members of the unlawful assembly in the night. Needless to say that those who are proved to be the members of the unlawful assembly in the night as well as in the morning are liable for the offences committed both in the night as well as in the morning.

936. At this stage, I have heard the accused on the question of sentence. Shri Adhik Shirodkar, the learned Senior Advocate, on behalf of the accused, states that he has no submission to make on the question of sentence; and that the matter is left to the Court.

937. Heard Smt. Manjula Rao, the learned Special Public Prosecutor for the State of Gujarat. She has submitted that an appropriate sentence be awarded by keeping in mind the seriousness of the offences and the number of deaths caused.

938. Though this indeed is one of the aspects of the matter, it cannot be ignored that the accused are being convicted by virtue of the provisions of Section 149 of the Code. The exact role played by each accused in the entire incident is not specifically proved. Though there is no rule that the death sentence cannot be awarded where the conviction of an offence punishable under Section 302 of the I.P.C., is recorded with the aid of Section 149 of the I.P.C., considering all the relevant aspects of the matter, I am of the opinion that the extreme penalty of death is not called for in this case.

939. Much damage was caused to the property. Much destruction of the property was done. As such, I think it proper to impose appropriate sentences of fine also, in addition to the substantive sentences. It would also be appropriate to award compensation to be paid to the victims, keeping in mind the provisions of Section 357 of the Code.

940. 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.

1. All the accused are acquitted of the charge of an offence punishable under Section 342 of the I.P.C. read with Section 149 of the I.P.C.

2. Accused Nos. 2, 3, 5, 10, 13, 17, 19 and 21 are acquitted of the charge of offences punishable under Section 143 of the I.P.C., Section 147 of the I.P.C., Section 324 of the I.P.C. read with Section 149 of the I.P.C., Section 326 of the I.P.C. read with Section 149 of the I.P.C., Section 302 of the I.P.C. read with Section 149 of the I.P.C., Section 435 of the I.P.C. read with Section 149 of the I.P.C., Section 436 of the I.P.C. read with Section 149 of the I.P.C., Section 395 of the I.P.C., Section 448 of the I.P.C. read with Section 149 of the I.P.C., Section 449 of the I.P.C. read with Section 149 of the I.P.C., Section 450 of the I.P.C. read with Section 149 of the I.P.C. and Section 451 of the I.P.C. read with Section 149 of the I.P.C.

3. Accused Nos. 2, 3, 5, 10, 13, 17 and 19 be set at liberty forthwith, unless required to be detained in some other case.

4. The bail bond of Accused No. 21 stands discharged.

5. Accused No. 1 – Rajubhai Dhamirbhai Baria, Accused No. 14 – Jagdish Chunilal Rajput, Accused No. 16 – Shanabhai Chimanbhai Baria and Accused No. 18 – Shailesh Anupbhai Tadvi are acquitted of the charge of offences punishable under Section 395 of the I.P.C., Section 435 of I.P.C. r/w Section 149 of the I.P.C., Section 436 of the I.P.C. read with Section 149 of the I.P.C., Section 448 of the I.P.C. read with Section 149 of the I.P.C., Section 449 of the I.P.C. read with Section 149 of the I.P.C., Section 450 of the I.P.C. read with Section 149 of the I.P.C., Section 451 of the I.P.C. read with Section 149 of the I.P.C.

6. Accused No. 1 – Rajubhai Dhamirbhai Baria, Accused No. 4 – Pankaj Virendragir Gosai, Accused No. 11 – Sanjay @ Bhopo Ratilal Thakkar, Accused No. 12 – Bahadursinh @ Jitu Chandrasinh Chauhan, Accused No. 14 – Jagdish Chunilal Rajput, Accused No. 15 – Dinesh Phulchand Rajbhar, Accused No. 16 – Shanabhai Chimanbhai Baria, Accused No. 18 – Shailesh Anupbhai Tadvi, and Accused No. 20 – Suresh @ Lalo Devjibhai Vasava are convicted of an offence punishable under Section 143 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 6 [six] months, and also to pay a fine of Rs.500/- [Rupees five hundred only] each, in default, to suffer further rigorous imprisonment for 15 [fifteen] days.

7. They are also convicted of an offence punishable under Section 147 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 2 [two] years, and also to pay a fine of Rs.1,000/- [Rupees one thousand only] each, in default, to suffer further rigorous imprisonment for 1 [one] month. 8. They are also convicted of an offence punishable under Section 324 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 3 [three] years, and also to pay a fine of Rs.1,000/- [Rupees One thousand only] each, in default, to suffer further rigorous imprisonment for 1 [one] month.

9. They are also convicted of an offence punishable under Section 326 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer imprisonment for life and also to pay a fine of Rs.5,000/- [Rupees five thousand only] each, in default, to suffer further rigorous imprisonment for 5 [five] months.

10. They are also convicted of an offence punishable under Section 302 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer imprisonment for life and also to pay a fine of Rs.5,000/- [Rupees five thousand only] each, in default, to suffer further rigorous imprisonment for 5 [five] months.

11. They are also convicted of an offence punishable under Section 188 of the I.P.C. and each of them is sentenced to suffer simple imprisonment for a period of 1 [one] month.

12. Accused No. 4 – Pankaj Virendragir Gosai, Accused No. 11 – Sanjay @ Bhopo Ratilal Thakkar, Accused No. 12 – Bahadursinh @ Jitu Chandrasinh Chauhan, Accused No. 15 – Dinesh Phulchand Rajbhar, and Accused No. 20 – Suresh @ Lalo Devjibhai Vasava are convicted of an offence punishable under Section 435 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 7 [seven] years, and also to pay a fine of Rs.5,000/- [Rupees five thousand only] each, in default, to suffer further rigorous imprisonment for 5 [five] months.

13. They are also convicted of an offence punishable under Section 436 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer imprisonment for life, and also to pay a fine of Rs.10,000/- [Rupees ten thousand only] each, in default, to suffer further rigorous imprisonment for 10 [ten] months.

14. They are also convicted of an offence punishable under Section 395 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 10 [ten] years and also to pay a fine of Rs.500/- [Rupees five hundred only] each, in default, to suffer further rigorous imprisonment for 15 [fifteen] days.

15. They are also convicted of an offence punishable under Section 448 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 1 (one) year and also to pay a fine of Rs.500/- [Rupees five hundred only] each, in default, to suffer further rigorous imprisonment for 15 [fifteen] days.

16. They are also convicted of an offence punishable under Section 449 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 10 [Ten] years and also to pay a fine of Rs.500/- [Rupees five hundred only] each, in default, to suffer further rigorous imprisonment for 15 [fifteen] days.

17. They are also convicted of an offence punishable under Section 450 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 10 [Ten] years and also to pay a fine of Rs.500/- [Rupees five hundred only] each, in default, to suffer further rigorous imprisonment for 15 [fifteen] days.

18. They are also convicted of an offence punishable under Section 451 of the I.P.C. read with Section 149 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 2 [Two] years and also to pay a fine of Rs.500/- [Rupees five hundred only] each, in default, to suffer further rigorous imprisonment for 15 [fifteen] days.

19. Accused No. 11 – Sanjay @ Bhopo Ratilal Thakkar, Accused No. 12 – Bahadursinh @ Jitu Chandrasinh Chauhan, Accused No. 15 – Dinesh Phulchand Rajbhar, Accused No. 16 – Shanabhai Chimanbhai Baria and Accused No. 20 – Suresh @ Lalo Devjibhai Vasava are convicted of an offence punishable under Section 144 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 2 [two] years, and also to pay a fine of Rs.500/- [Rupees five hundred only] each, in default, to suffer further rigorous imprisonment for 15 [fifteen] days.

20. They are also convicted of an offence punishable under Section 148 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for 3 [three] years, and also to pay a fine of Rs.1,000/- [Rupees one thousand only] each, in default, to suffer rigorous imprisonment for 1 [one] month.

21. All the substantive sentences, except the sentences of imprisonment for life, shall run concurrently.

22. The accused shall be entitled for set off as per Section 428 of the Code of Criminal Procedure.

23. The sentences of imprisonment for life shall run after the expiration of the concurrent sentences for imprisonment for terms.

24. No order for the disposal of the property is passed at this stage, as the case against the original Accused Nos. 6, 7, 8 and 9 is pending.

25. Issue notices to Nasibulla Habibulla Shaikh [P.W.30], Nafitulla Habibulla Shaikh [P.W.31], Smt. Saherunnisa Habibulla Shaikh [P.W.35], Smt. Saherabanu Habibulla Shaikh [P.W.40] and Smt. Zahira Habibulla Shaikh [P.W.41] to show cause why each of them should not be tried summarily for giving false evidence and punished for the offences punishable under Section 193 of the I.P.C., as contemplated under Section 344 of the Code of Criminal Procedure, returnable on 20/03/2006.

26. If fine is realised, an amount of Rs.20,000/- [Rupees twenty thousand only] each shall be paid to each of the injured witnesses – i.e. Taufel Ahmed Habibulla Siddiqui [P.W.26], Raees Khan Nankau Khan [P.W.27], Shehzad Khan Hasan Khan Pathan [P.W.28] and Sailun Hasan Khan Pathan [P.W.32], as compensation under Section 357(1)(b) of the Code of Criminal Procedure.

27. Out of the fine imposed on Accused Nos. 4, 11, 12, 15 and 20, if realised, an amount of Rs.60,000/- [Rupees sixty thousand only] shall be paid to Smt. Sharjahan Kausarali Shaikh [P.W.34]; and from the remaining amount, an amount of Rs.40,000/- [Rupees forty thousand only] [or such other amount as may be available] shall be paid to Aslambhai Haroonbhai Shaikh [P.W.42], as compensation under Section 357(1)(c) of the Code of Criminal Procedure.

(A.M. Thipsay)
Addl. Sessions Judge,
Greater Bombay
February 24, 2006 (Mazgaon)

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