429. The evidence of the police witnesses – viz. PSI Shri B.U. Rathod [P.W.63], D.C.P. Shri Piyush Patel [P.W.67] and PI Shri H.G. Baria [P.W.72] – also corroborates the version of the supporting occurrence witnesses, particularly with respect to the happenings of the morning incident. These are the officers who reached on the spot immediately after the incident. In fact, it is when PSI Rathod, who was the first of them to reach the spot went there, that the rioters ran away. It is he and his staff who noticed the nine injured persons whose hands and legs were tied and who had injuries inflicted by sharp weapons, as also burn injuries on their bodies, lying on the rear side of the Best Bakery building. The evidence shows that these nine persons were Taufel [P.W.26], Raees [P.W.27], Shehzad [P.W.28], Nasibulla [P.W.30], Nafitulla [P.W.31], Sailun [P.W.32], Baliram, Prakash and Ramesh, though PSI Rathod has not named them.

430. The evidence of PSI B.U. Rathod and D.C.P. Piyush Patel not only corroborates the evidence of the supporting occurrence witnesses, but it is of independent weight and value in itself…

431. PSI B.U. Rathod [P.W.63] states that on 02/03/2002, while patrolling within the area of his Police Station by wireless mobile van-I, he received a message and went to the spot. He categorically states that on seeing the police mobile van, the mob ran away. The mobile van was parked near the Hanuman Temple. He noticed the Best Bakery building burning and on hearing voice of some persons crying, he and his staff went to the rear side of the said house. PSI Rathod categorically states that he and his staff noticed 9 persons whose hands and legs were tied and who had sustained injuries on their bodies, as aforesaid. PSI Rathod immediately gave a message to police control and to PI Baria informing about the 9 persons being there in burnt and injured condition and also gave a message calling for fire brigade and ambulance. PSI Rathod states that he and his staff then started untying hands and legs of said 9 persons. It is at that time, that Shri Piyush Patel [P.W.67], D.C.P. [South] and PI Baria [P.W.72], the fire brigade and the ambulance arrived there. PSI Rathod then states about 3 Muslim women coming from the bushes and meeting D.C.P. Patel and PI Baria. He then states about extinguishing of the fire on the first floor of the building, 7 dead bodies being brought down from the first floor, the injured being put in the ambulance, and being sent to S.S.G. Hospital and one old woman being brought down by the fire brigade from the terrace. Rathod also states that the D.C.P. and the police staff started searching for the accused in the surrounding area.

432. There are five important aspects that emerge from the evidence of Rathod – viz.,

i] The mob was there till the police came.

ii] The police noticed 9 persons whose hands and legs were tied and who had injuries inflicted by sharp weapons, as also burn injuries, lying on the rear side of the ‘Best Bakery’ building.

iii] The police untied the hands and legs of the said 9 persons and sent them to S.S.G. Hospital.

iv] After Shri Piyush Patel, PI Baria and other policemen arrived there, 3 Muslim women came from the bushes and met D.C.P. Piyush Patel and PI Baria.

v] D.C.P. Piyush Patel, PI Baria and the police staff started searching for the accused in the surrounding area.

433. The evidence of PSI Rathod is fully corroborated by the evidence of PI Baria and D.C.P. Patel. In fact, except the incident of the 3 women coming and meeting D.C.P. Piyush Patel and PI Baria, there is not much challenge to the evidence of this witness. His statement was recorded during investigation.

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443. In his evidence D.C.P. Piyush Patel [P.W.67] states that at about 10.45 a.m. while he was patrolling on 02/03/2002, he heard a message from Panigate Mobile-I to the Control Room, saying that on Daboi Road, Hanuman Tekdi, 4 to 5 houses had been set on fire; and that persons were burning; and that, ambulance and fire brigade be sent immediately. That on hearing this message, he went to the Gajrawadi Fire Station, he took the fire brigade and the ambulance personal with him and went to the spot. The message was heard by him at about 10.45 a.m. and according to him, he reached the spot within about 6 to 7 minutes therefrom. This part of his evidence is in conformity with the evidence of PSI Rathod [P.W.63] and PI Baria [P.W.72]. D.C.P. Patel also states about the building being burning when he reached there; and that on the rear side of the building, he saw 9 persons lying injured. D.C.P. Patel states that PSI Rathod came to him and informed him that those 9 persons had been tied by wires; and that they were attacked on their heads and were also burnt. This corroborates the evidence given by PSI Rathod and also confirms his evidence regarding having reported the same to D.C.P. Patel. D.C.P. Patel then speaks of a lady – wife of the owner of the building – along with two girls coming to him and the ladies telling them about the incident. D.C.P. Patel has narrated what they told him. According to him, they said that a mob of about 1,000 to 1,200 persons of Hindu community had ‘gheraoed’ the said building throughout the night; and that the persons – viz. Jayanti cha ni lariwala, Jayanti’s son, Mahesh, Kiran, Munno, Pratap, Jitu, Lalo and Painter – and a mob of persons from Hanuman Tekdi and surrounding area had pelted stones, set the building on fire and had cut the telephone wires. That they also told D.C.P. Patel that the victims – i.e. the ladies and others – had hidden themselves on the terrace of the building; and that in the morning, the mob had assured them that they – the mob – would not do any harm to them and so they had come down. That the mob had, thereafter, tied the hands and legs of the victims and started assaulting them. According to D.C.P. Patel, the ladies also told him that they had gone to the bhaiyya’s place; and that the mob had tried to drag them towards the bushes. D.C.P. Patel was also told about there being other persons trapped inside the building. D.C.P. Patel then speaks of one old lady, who was on the terrace of the said building, being brought down by the fire brigade personnel and also about bringing down 7 dead bodies from the first floor of the said building.

444. D.C.P. Piyush Patel [P.W.67] has stated about the injured being sent for medical treatment and his going to the hospital. Before that, according to him, combing in the area was done, but all the houses were closed and police did not get anyone.

445. The statement of D.C.P. Patel was recorded by PI Kanani [P.W.74] on 24/03/2002.

… … …

449. Attempt has been made in the cross-examination, to show that the evidence of D.C.P. Patel, as given by him in the Court at Vadodara, is inconsistent and/or contradictory to what he has stated here. I do not think that there are any variations or contradictions in the evidence of D.C.P. Patel as deposed by him in this Court and between the record of his deposition in the Court at Vadodara. In my opinion, the attempt that has been made in the cross-examination is only to play with the words, without trying to bring out any variations or discrepancies in the happening as stated by him. The inconsistency between the versions about the time of recording his statement is of no consequence unless the recording of the statement itself is an issue that is under challenge.

450. D.C.P. Patel [P.W.67] has admitted that he did not note down the names given by the said 3 women as the names of offenders or accused on any paper, at any time, till his statement was recorded. On this aspect, PI Baria [P.W.72] has stated that D.C.P. Patel did note down the names given by the said 3 women. Undoubtedly, there is conflict between the evidence of D.C.P. Patel and PI Baria on this aspect. No paper containing any names supposed to have been noted by D.C.P. Patel at that time has been produced before the Court. It is contended that this conduct of D.C.P. Patel in not recording the names of the accused or not directing PI Baria to record the names is unacceptable and D.C.P. Patel cannot, therefore, be believed on this aspect. I do not agree with this contention. D.C.P. Patel has been asked as to why he did not instruct PI Baria to record the names of the said 3 women and to record their statements on the spot and D.C.P. Patel has replied, rightly in my opinion, that PI Baria was there itself; and that there was no question of telling him. D.C.P. Patel had no reason to believe that the needful would not be done by the Inspector in-charge of the concerned area and there was hardly any reason for him to give any direction to him at that time itself, as to how and what steps should be taken by him…

… … …

452. D.C.P. Piyush Patel [P.W.67] has stated about 3 ladies having been seen by him, talking to PI Baria [P.W.72] in the hospital and PI Baria writing down what one of them was narrating. D.C.P. Patel was asked whether that was important and he has answered in the affirmative. In this background, an omission to state this in his statement [X-89 for identification] recorded by PI Kanani [P.W.74], is sought to be brought out. According to me, this omission is insignificant and immaterial. D.C.P. Patel’s admission that it was ‘important’ is of no consequence, in my opinion. It is clear that this incident is not important at all by itself. I fail to see as to what turns on whether D.C.P. Patel saw these ladies, talking to PI Baria and narrating. D.C.P. Patel’s admission that it was ‘important’ as made by him in the Court, is based on the fact that Zahira [P.W.41], whose statement was recorded by PI Baria in the hospital, has, later on, denied having made the statement. It is the denial of Zahira which made this aspect ‘important’. It could not have been thought of, or imagined either by D.C.P. Patel, or by PI Kanani that the lady whose statement was recorded by PI Baria is not going to admit it and say that she never made any statement. Since when the evidence was given by D.C.P. Patel in the Court, Zahira [P.W.41] had turned hostile and had disowned her statement recorded by PI Baria in the hospital, this fact might have been thought of as ‘important’. It could not have been thought of as ‘important’ on 24/03/2002 and therefore, non-mention of this, in his statement, recorded by PI Kanani, is absolutely insignificant. In fact, in my opinion, even after Zahira has denied having made a statement which was recorded by PI Baria in the hospital, this evidence of D.C.P. Patel is not important at all. It is contrary to reason to accept that no inquiries were made with Zahira by PI Baria in the circumstances, though both – PI Baria and Zahira – were together and PI Baria was aware of the happenings of the incident, having taken Zahira with him from the spot itself. I see no reason to disbelieve D.C.P. Patel on this aspect only on the ground that this was not stated by him before PI Kanani. No material was being collected by PI Kanani to show that First Information Report had been indeed and in fact, lodged; and he could not have even imagined collecting of material to support such a claim. As a matter of fact, it would have been rather curious and would have given rise to suspicion, had, at that time, collection of material showing that the F.I.R. had been indeed lodged would have been attempted to. There is, therefore, no substance in this contention. Since the fact that D.C.P. Patel indeed went to the hospital, that PI Baria and Zahira both went to the hospital, are not in dispute at all, there is nothing unbelievable in the version that D.C.P. Patel saw one of the 3 ladies, talking to PI Baria in the hospital and Baria recording what she was telling. When a fact has indeed happened, as is proved from the evidence on record, why and how a contention that D.C.P. Patel had not seen this happening at all, has been advanced, is difficult to comprehend.

… … …

455. D.C.P. Piyush Patel [P.W.67] has denied the suggestion put to him that no names at any time were disclosed to him; and that he had come to know certain names by 24/03/2002; and that he inserted those names in his statement as if they were told to him on the spot.

456. The contention that this evidence of D.C.P. Patel is false and that this statement has been made ‘to make Zahira the first informant’, is without any substance. The motive suggested for making such false statement is contrary to reason and logic. The motive suggested for making a false claim of having learnt about the names of the accused, is that D.C.P. Patel – or the investigating agency – ‘wanted to make Zahira the first informant’. Apparently, what is contended is that ‘it was intended to make a false claim later on, that Zahira had lodged the F.I.R. and by anticipating that this evidence of D.C.P. Patel would be useful when a dispute in that regard would arise, Piyush Patel made a false statement before PI Kanani’. How this is absolutely contrary to logic and reason shall be demonstrated by considering various possibilities. This shows that the investigating agency already knew that Zahira would disown her statement. The question is, if all that the investigating agency wanted was to frame some persons falsely, why they would select a person who would not support them in making such allegation. I am not considering here whether the investigating agency was acting honestly; but even assuming that the investigating agency was acting dishonestly and wanted to implicate certain persons falsely, why would they rely on a false statement of a person who was not going to support them cannot be comprehended. If at all there was dishonesty and false implication, it could be only at the instance of or in collusion with Zahira, and not otherwise. If Zahira was a party to such collusion, naturally, D.C.P. Patel would not expect her to be hostile and would not be arming the Investigating Officer with material to prove that she had lodged the F.I.R. Hardly, in any case, anyone, and more particularly any officer from the investigating agency, would think of collecting material for proving that the F.I.R. had been indeed lodged by a person named as the first informant in the police record. Secondly, if the desire to falsely implicate would be so much prominent, a chit of paper could have been easily created containing the names of some of the accused persons which are reflected in the F.I.R. [Ex.136] and a claim would have been made that on the spot, this information was recorded. If the investigating agency has indeed gone to the extent of fabricating the record, with the object of falsely implicating the accused, why would they not be consistent in that regard and achieve their objective, remains unanswered. Lastly, for falsely implicating persons, why was it necessary to make Zahira the first informant? It has been contended emphatically that statement of Raees [P.W.27] had been the real F.I.R. and the manipulation to involve the accused persons could have been done, even by showing him as the first informant and recording all the names in his statement. Thus, even before coming to the conclusion about the evidence in respect of names having been given to D.C.P. Patel on the spot to be true, it can at once and easily be observed that the motive for such false evidence, as suggested, is ridiculous and unacceptable.

457. I have carefully considered the evidence of D.C.P. Patel generally and more carefully with respect to this aspect. I find that D.C.P. Patel is a truthful witness and his evidence cannot be doubted. His presence on the scene of offence cannot be doubted and has not been disputed. While appreciating his evidence, it ought to be kept in mind that there is always some motive behind giving false evidence. In this case, it is not that the accused persons could not have been implicated without this statement of D.C.P. Patel. In fact, they have been named in the F.I.R. It is only because Zahira had turned hostile, the fact that she had given certain names on the spot itself, has assumed importance…

458. The evidence of PI Baria [P.W.72] on this aspect corroborates the version of PSI Rathod [P.W.63] and D.C.P. Piyush Patel [P.W.67]. PI Baria also states about his going to the scene of offence, PSI Rathod already being there, D.C.P. Patel coming there, his noticing 9 persons lying in a serious condition, etc. He also speaks of 3 ladies coming with PSI Rathod and one of the 3 women stating that the assailants were from Hanuman Tekdi locality and giving information about the incident. PI Baria has also stated about the women giving the names of certain persons as the assailants and has given those names in the Court. PI Baria’s evidence fully corroborates the version of PSI Rathod and D.C.P. Patel on this and there has been nothing in the cross-examination, which makes me doubt this version.

459. I have no hesitation to conclude that the incident of 3 women coming to D.C.P. Patel and other police officers and one of them narrating about incident and also giving the names of some persons as the culprits has indeed taken place.

460. In my opinion, the statements about the happenings of the incident and also the naming of some persons as the culprits given by one of the three women to D.C.P. Patel and PI Baria are substantive evidence. These statements mention about the incident immediately and as soon as it ended. The maker of the statements obviously had not come out of the shock of the incident. The statements made by one of the said three women about the mob of Hindus having ‘gheraoed’ the building and also the persons named by her as being in the mob of rioters, about how the incident happened, how the victims were assaulted, how the ladies were dragged towards the bushes, etc., are so intricately connected with the actual happenings of the incident, that they form a part of the same transaction. It is immaterial for the admissibility of these statements as substantive evidence whether the maker of those statements has been ascertained to be a specific or identified person. It is the obvious corollary of the fact that the statements are admissible in evidence without examining the maker. This is also clear from the illustration (a) to Section 6 of the Evidence Act which refers to ‘bystanders’. The very reference as ‘bystanders’ indicates that the persons whose statements are admitted under the section are unascertained and unidentified persons. The only requirement is that the ‘bystanders’ must have knowledge of the event regarding which the statement is made. If the bystanders are required to be examined as witnesses, the illustration (a) would be redundant. These statements are clearly admissible as substantive evidence of the facts which they state under the provisions of Section 6 of the Evidence Act. They can, therefore, be taken into consideration as evidence of the facts stated therein.

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Video As Evidence

VIDEO CASSETTE [EX.283] AND THE OBJECTION TO CONSIDER IT IN EVIDENCE

465. Before proceeding further, I shall consider the evidence in the form of the cassette [Ex.283]. It has already been seen earlier that it very much shows Yasmin present on the scene of the offence. The video cassette [Ex.283] shows what was the scene of the offence and what were the reactions of the victims and witnesses immediately after the incident. The cassette gives an accurate idea as to what was happening on the scene of offence, after the police had arrived. It shows some of the injured lying on the ground having serious injuries on their respective person and groaning. It shows the presence of policemen including Piyush Patel and Baria. It shows Zahira and Saherunnisa speaking to policemen. It also shows Yasmin weeping by the side of one injured. It shows the fire brigade personnel extinguishing the fire, the dead bodies being brought down, the old woman being brought down by a ladder. It also shows what the women were speaking at that time. Certain sentences uttered by them which can be heard when the cassette is played, are significant. They are:

(They are all from here only)

(They tied them up with this and then they were taking them to the bushes/jungle)

(They tied them up and burnt them)

(They first beat this person up badly… they did)

(Everyone had been tied up)

(No one else, the rest were all burnt)

466. The utterances which were made by the persons present on the scene of offence at that time, as have been recorded in the said cassette, some of which have been reproduced above, are clearly admissible under Section 6 of the Evidence Act. The provisions of Section 6 of the Evidence Act have already been discussed earlier in the light of the pronouncements of the Supreme Court of India. The utterances reproduced above, lend corroboration to the version of the prosecution witnesses. The utterances: ‘Yeh sab idhar hi ke the! (They are all from here only), Iss se bandh ke rakha phir woh jangal mein le jaa rahe the! (They tied them up with this and then they were taking them to the bushes/jungle), Bandh bandh ke jalaye! (They tied them up and burnt them), Inko pahle kya bahot maara...inhone! (They first beat this person up badly… they did), Sab ko bandh ke rakha tha! (Everyone had been tied up), Aur koi nahi baki sab jal gaye! (No one else, the rest were all burnt)’, etc., speak for themselves. Thus, not only the cassette establishes the presence of Yasmin, it also corroborates various aspects of the prosecution case, as spoken about by the witnesses. The utterances reproduced above are substantive evidence of the facts which can be gathered from them. These utterances and sentences, by themselves and independently, may not prove anything, but when considered in the context of the evidence of the occurrence witnesses, at once create an assurance and lend support to their testimony.

467. I shall now deal with the contentions challenging the consideration of the cassette [Ex.283] in evidence. Shri Shirodkar, the learned Senior Advocate, has pointed out the evidence as to where and in what manner the video cassette [Ex.283] had been kept before it came to be tendered in evidence. PI Kanani’s [P.W.74] evidence to the effect that the video cassette [Ex.283] was not seized under any panchanama, that it was lying in unsealed condition, etc., was pointed out and the submissions that are advanced in that regard are to the effect that the claim of the prosecution as to when it learnt about existence of the cassette, is false. The contention is that on the basis of the false claim, the prosecution succeeded in examining the videographer without providing the video cassette [Ex.283] to the defence. It is also contended that PI Kanani’s evidence that he forgot about the cassette till the last, cannot be believed; and that the prosecution was well aware about the existence of the video cassette [Ex.283]; but as it did not support the prosecution case on several aspects, it was not produced at all. In the view that I am taking, it is not necessary to go deeper into these contentions and I look at the matter by assuming that the prosecution was aware of the existence of the video cassette [Ex.283] before it was produced in the Court, or before a mention of it was made by Yasmin [P.W.29]. Still, when exactly the learned Spl. P.P. in-charge of the matter learnt about it, is not clear…

468. I have carefully considered this aspect. On a careful thinking, it is clear that the video cassette [Ex.283] does not contain any facts regarding which prosecution had not made a claim earlier and had not adduced, or was not intending to adduce, evidence. For instance, the video cassette [Ex.283] shows the Best Bakery building burning, the injured lying, the fire brigade attempting to extinguish the fire, the dead bodies being brought down by the fire brigade staff, an old woman trapped on the terrace of the building, etc., etc. However, the prosecution had witnesses to speak about each and every of the above facts. The importance of cassette, therefore, might not have been felt by the prosecution earlier. It depicts only the happenings after the incident and does not connect the accused persons with the alleged offences. It is when the defence took some specific contentions, that the relevancy of the video cassette [Ex.283] might have occurred to the prosecution and it is thereafter that it might have been seen carefully by somebody connected with the prosecution and/or the learned Spl. P.P. For instance, a point not within the knowledge of the accused persons – viz. that Yasmin was not present at all on the scene of offence, which also could not be gathered from the charge-sheet or other record – was not only taken up, but was being blown out of proportion and therefore the fact that Yasmin is seen in the video cassette [Ex.283], became important. Similarly, that Zahira’s [P.W.41] Nani was not present at all during the incident was a contention taken up by the learned Advocates for the accused, which was not borne out by anything on record and regarding which the accused claimed to have had no knowledge. It is not as if the video cassette [Ex.283] shows something new which is not a part of the prosecution case regarding which the accused had been forewarned. It is not that the accused were required to meet a new case on account of the cassette [Ex.283] being tendered in evidence. The purpose of supplying copies of the documents, on which prosecution relies, is to give an opportunity to the accused to know what case they are required to meet. It is not that Yasmin’s presence, that injured had suffered serious injuries, that the police and fire brigade came and rescued the victims, are factors not spelt out from the charge-sheet.

469. The principles of Criminal Jurisprudence require that the accused should not be taken by surprise; and that they should be aware well in advance of the case which they are required to meet. No new fact, not initially forming part of the prosecution case, has been introduced by the cassette [Ex.283]. Since the accused had information from the police report that Yasmin was present during the incident, there was no question of them being ‘taken by surprise’ only because Yasmin’s presence is established by a visual record in the cassette. Moreover, the copies of the cassette [Ex.283] in the form of compact discs were given to the learned Advocates for the accused before it was taken on record, marked and exhibited. The statement of the videographer Gautam Chauhan [P.W.69] was also recorded by the Investigating Officer and a copy thereof was furnished to the learned Advocates for the accused before he was examined as a witness. Thus, the accused had been given full opportunity to know the contents of the video cassette [Ex.283] and the version of the person who did the recording in question, before the relevant evidence was introduced, and had been given an opportunity to cross-examine the material witnesses in that regard. No prejudice has been caused to the accused by introduction of the said video cassette [Ex.283].

… … …

472. In their attempt to discredit the evidence of the cassette, a question is posed by the learned Advocates for the accused as to ‘why the footage of Best Bakery episode is only of 12 to 13 minutes when there were no restrictions on what to videograph and how long the footage should be.’ An answer to this question is provided by them as that ‘the rest of the footage which falsified the case of the prosecution, had to be eliminated by ‘doctoring’ the cassette. There is no substance in this contention. ‘Why is the footage of the Best Bakery episode only of 12 to 13 minutes’ has been asked neither to Gautam Chauhan [P.W.69], nor to PI Baria [P.W.72]. The argument which presupposes that actually there was more footage, fails as not only this fact itself is not established, but questioning any witness on that, has also been scrupulously avoided by the learned Advocates for the accused.

473. It is next contended that the inability of PI Baria [P.W.72] or PI Kanani [P.W.74] to prove how, with whom and where the video cassette [Ex.283] was kept, is not in fact an ‘inability’, but a deliberate suppression ‘to prevent the defence from establishing the doctoring and to establish that the claim of the prosecution that Zahira [P.W.41] and others disclosed names to the police, is not concoction of evidence’. [Pg.51 of the written submissions of defence filed by Shri Shirodkar]. This is without any substance. There is no case put to anyone –much less there exists any evidence – that shooting in respect of the names disclosed by Zahira [P.W.41] and/or others or in respect of Zahira saying that she did not know any of the rioters was done; and that the original [undoctored] cassette contained such a recording.

474. It is next contended that the defence had suggested that Yasmin was not present when the incident took place; and that examining the videographer Gautam Chauhan [P.W.69] belatedly and by permitting it to be done, grave prejudice and irreparable damage has been caused to the defence. There is no substance in this contention. That Yasmin was not present, is a contention invented by the learned Advocates for the accused themselves and obviously, not from what was within the knowledge of the accused. This is clear from the fact that none of the accused, in their examination under Section 313 of the Code, has even claimed to have known Yasmin, or nobody else of the victims, and for that matter, even the Best Bakery itself. Merely because an unfounded contention is demonstrated to be false in a more effective and obvious manner, no grievance of prejudice having been caused, can be made.

475. … Much reliance has been placed on the video cassette [Ex.283] to contend that it proves the prosecution case to be false. It cannot be helped observing that the various arguments advanced by the learned Advocates for the accused contradict one another.

… … …

478. There is no substance at all in all these contentions which are based on certain assumptions, then further assumptions on the assumed facts, and then further assumptions on those facts also; but apart therefrom, what is most significant is that no attempt, by cross-examining the relevant witnesses to support this version in any manner, has been made.

479. It was open for the accused to make an attempt to show that something was, in all probability, deleted; and that, what was deleted was in relation to the happening of a particular event favourable to the accused. Without questioning the videographer Gautam Chauhan [P.W.69], PI Baria [P.W.72], Zahira [P.W.41] and Saherunnisa [P.W.40], Yasmin [P.W.29] and/or others who figured in the cassette, about the record not being genuine, and not of the entire shooting done on that occasion, no inference as desired by the learned Advocates for the accused can be drawn.

480. As regards the contentions that the prosecution was aware of the cassette prior to its being produced in the Court on the ground that a C.D. from the cassette had been prepared already on 19/09/2004; and that Zahira had been questioned with respect to the happenings recorded in the cassette even before it was produced, I do not find it very significant. Here, when one speaks of ‘prosecution’ it is not clear that it refers to a particular person or group of persons. It is possible that the learned Spl. P.P. had an idea about the existence of the cassette or the contents thereof also, but unless and until the cassette would be received by her through some official and authentic sources together with the relevant information as to the person doing the shooting, etc. it would not be possible for her to make a claim of the existence of the cassette, before the Court or seek its production in evidence.

481. It is pointed out that the C.D. shows 19/09/2004 as the date on which it came in existence. That it was prepared on 19/09/2004 was not pointed out before the concluding arguments and no explanation was sought from the learned Spl. P.P. This contention/argument was kept reserved, apparently in the belief that it could provide a fatal blow to the prosecution’s claim about the cassette and/or C.D. It is contended by Shri Pawar, the learned Advocate for Accused Nos. 16 to 19 and 21, that Section 4 of the Information Technology Act, 2000, proves that the C.D. [Ex.283/3] was prepared on 19/09/2004 in the absence of any evidence to prove the contrary. I find that Section 4 of the Information Technology Act, 2000, has no relevance to this aspect. It deals with meeting of a legal requirement to be in writing, typewritten or in print with respect to any information or any other matter, and provides that such requirement shall be deemed to have been satisfied if such information or matter is rendered or made available in an electronic form and is accessible so as to be useful for a subsequent reference. Thus, the section is intended to bring information or matter rendered or available in an electronic form on par with a matter required to be in writing or printed form, etc. The contention that the date seen in a C.D. as the date on which it was created, should be concluded as correct, without any evidence, cannot in any case, be advanced on the basis of the said section.

482. According to Smt. Manjula Rao, the learned Spl. P.P., she had got prepared the C.D. [Ex.283/3] on a computer which was not in use for a long time; and when and by whom, the date and time setting was done, is not known to her. I do not find it proper to come to a conclusion in this regard – viz. when the C.D. was prepared, or got prepared, without any evidence as to the computer on which the said C.D. was got prepared, and without there being any evidence as to whether and in what circumstances, it is possible to have a date of creation of the C.D., which is wrong. I do not think that the date and time setting cannot manually be changed at any time. However, even if it is held that the C.D. is actually prepared from the cassette on 19/09/2004, still, that would not affect the genuineness or the evidentiary value of the cassette. It would only show that the statement of the learned Spl. P.P., as to when it was prepared, is wrong. Though this would be relevant in considering the possibility of the C.D. being available to some persons earlier, it would not go, in any way, towards affecting the genuineness, authenticity and evidentiary value of the cassette itself. The possibility of the C.D. being available to a witness, prior to his giving evidence may affect the weight to be attached to the evidence of such witness, on certain aspects, and his evidence may not be weighed more by reason of it ‘being corroborated by the cassette [Ex.283]’; but to claim or hold that this affects the genuineness or value of the cassette would be incorrect.

483. It is contended by the learned Advocates for the accused that the cassette has been useful to the prosecution for a very limited purpose; and that it is proved to be to the benefit of the defence and the truth. In fact, it is repeatedly asserted in the written arguments filed by Shri Mangesh Pawar, the Advocate for the accused, where the cassette is not only described ‘a key to many truths’ [pg.61 of the written arguments], but how it advances the version of the defence is also elaborately mentioned [pages 68-90]. Without going into the soundness of those contentions, it may be observed that if this is indeed the belief of the accused, then it is not possible for them to complain prejudice on account of its production.

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486. The cassette is not merely a document, but it is more akin to ‘real evidence’. The Court can take cognisance of what is seen and heard when it is played, by its own senses.

487. Thus, the cassette [Ex.283] is properly admitted in evidence. It supports the evidence of the occurrence witnesses. The objections raised against its admission in evidence are without any merit. The contention that (the) part favourable to the accused has been removed from the cassette has also no substance. In the absence of any attempt to question Gautam Chauhan and other material witnesses in the cross-examination and elicit material to suggest such an inference, no conclusion about any part having been removed from the cassette, can be drawn. Moreover, the removed part, if any, could be either favourable to the accused, or to the prosecution, or partly favourable and/or unfavourable to both the parties, or altogether irrelevant. In the absence of any material to indicate by whom, when and under what circumstances a part of the cassette was removed or got deleted, no conclusion about whether it could be favourable to the accused or to the prosecution can be drawn. The avoidance of questioning Gautam Chauhan on what else was shot, or that something that was shot was missing, can also lead to an inference that the cross-examiner thought it too risky. It may be observed in this context that PI Baria categorically stated that shooting in respect of the three women coming to him and giving names of some of the offenders to Piyush Patel was available in the cassette. After viewing the cassette, he admitted that it did not contain such shooting. The matter has been left at that by the parties and therefore, may not be discussed any further; but the point which I intend to make is different. The point is simply that no inference can be drawn that anything that was favourable to the accused had been shot and was removed. That the learned Spl. P.P. disclosed the availability of the cassette much later; and that this was done deliberately, even if true, cannot affect value to be attached to the cassette as a piece of evidence. No prejudice has been caused to the accused by introducing the cassette [Ex.283] in evidence late.

MEDICAL EVIDENCE

488. I shall now refer to the medical evidence, as has been adduced in this case, which fully corroborates the version of the occurrence witnesses who have supported the prosecution case. The medical evidence however disproves the version of Nafitulla [P.W.31] and Nasibulla [P.W.30], who are hostile, as regards the manner in which they sustained the injuries in question. The injuries sustained by Taufel, Raees, Shehzad and Sailun have already been mentioned earlier. The injuries sustained by Nafitulla and Nasibulla will be mentioned later. Since the medical evidence is not in dispute, it is not necessary to examine the same in depth. The evidence of Dr. Smt. Sutapa Basu [P.W.47] clearly establishes that the cause of death of Ramesh is ‘shock and haemorrhage following multiple chop wounds’. The evidence of Dr. Beejaysinh G. Rathod [P.W.48] clearly establishes that the cause of death of Prakash is – ‘craniocerebral trauma following multiple injuries over head’. The evidence of Dr. Kishor P. Desai [P.W.49] clearly establishes that the cause of death of Baliram is – ‘craniocerebral trauma after assaulted head injury’. This is supported by the entries made in notes of post-mortem examinations in respect of the dead bodies, which are duly proved [Ex.194, Ex.201 and Ex.208 respectively]. There is no dispute on this.

489. Firoz and Nasru had sustained the following injuries as revealed by the evidence of Dr. Beejaysinh G. Rathod and from the notes of post-mortem examination [Ex.202 and Ex.204 respectively] carried out on their dead bodies.

Injuries on the body of Firoz:

All these injuries were ante-mortem.

Injuries on the body of Nasru:

All these injuries were ante-mortem.

Though there is not much to be discussed about the medical evidence, in as much as it is unchallenged some inconsistencies therein may be noticed. It has been already observed that the injuries on Raees Khan were described as C.L.Ws. by Dr. Meena Robin [P.W.46], while they were described as incised wounds by Dr. Dilip Choksi [P.W.62]. Further, the injuries noted by Dr. Meena Robin on the person of Baliram are totally different from the injuries noted by Dr. K.P. Desai [P.W.49] in the notes of post-mortem examination [Ex.208] on his dead body. The injuries on the body of Nafitulla [P.W.31] also have been differently mentioned by Dr. Meena Robin and Dr. Dilip Choksi. All this may not be very material. Since the doctors have not been questioned specifically about such variations, it is not possible to form any opinion as to the exact cause of such difference, but an inference, which seems reasonable, is that due to mass casualty, the records were perhaps not properly made.

490. The evidence of Dr. Meena Robin and Dr. Dilip Choksi needs discussion in a particular context. It may be observed that the evidence of these two doctors as regards their assessment of the seriousness of the injuries suffered by the victims, and more particularly Raees and Nafitulla, seems to be unsatisfactory.

491. According to Dr. Meena Robin [P.W.46], the injuries sustained by Raees were ‘simple if no complications’. According to her, injuries sustained by Nafitulla were also ‘simple’ According to Dr. Dilip Choksi [P.W.62] also, the injuries suffered by Raees were ‘simple’. As regards the injuries suffered by Shehzad [P.W.28], initially, Dr. Choksi said that the injuries suffered by him were ‘simple’, but later on, corrected himself and said that they were ‘grievous’. As regards the injuries suffered by Nafitulla [P.W.31], interestingly, Dr. Choksi says that they were ‘grievous’ at the time when he was admitted, but turned out to be ‘simple’ after the conclusion of the treatment. I have got a definite feeling that both these doctors have tried to project the injuries as less serious than they actually were. I have been quite slow in coming to this conclusion but after carefully considering their evidence, I do conclude that way.

492. It may be observed that in law the terms ‘simple’ and ‘grievous’ are used not in relation to injuries, but in relation to ‘hurt’. ‘Grievous hurt’ is defined by Section 320 of the I.P.C. which provides 8 kinds of hurt that are designated as ‘grievous’. Clause ‘Eighthly’ of Section 320 of the I.P.C. however consists of a class of hurts which cannot be distinguished by a broad and obvious line, from slight hurts, as in the case of hurts contemplated by 7 previous Clauses. Emasculation, fracture or dislocation of a bone, etc. would be obvious and visible, but every injury which endangers life may not have any visible or obvious line separating it from the category of ‘simple hurt’. Such injuries, though not falling within any of the first 7 Clauses of Section 320 of the I.P.C., may, nevertheless, be very serious and may cause intense pain and a lasting injury to the body constitution. It appears to me that since the injuries sustained by Raees and Nafitulla did not have any obvious quality making it at once clear to be in the category of ‘grievous hurt’, the doctors have attempted to describe it as ‘simple’. For instance, if a fracture would be noticed, the doctors would not be able to claim it to be ‘simple hurt’, though it may be a small fracture not even remotely posing any threat to life.

493. In my opinion, the doctors are clearly wrong in terming the injuries suffered by Raees and Nafitulla as ‘simple’. It is an admitted position that the injuries sustained by Raees and Nafitulla also like in case of others were on vital parts of the body. Raees was required to be hospitalised till 16/03/2002. The injuries on such vital part of the body could not be termed as ‘simple’ in my opinion. The very fact that a qualification as ‘if no complications’ is noted before terming them as ‘simple’ itself indicates that they are not ‘simple’ to the knowledge of the Doctor, who at that time itself saw a possibility of complications. According to Dr. Choksi, Nafitulla had sustained following injuries:

The injuries were on the occipital region. X-rays of skull and mandible were required to be taken. It appears that the doctors have chosen to describe the injuries as ‘simple’ where there was no fracture. This is also clear from the evidence of Dr. Choksi, who initially described the injuries sustained by Shehzad as ‘simple’, but later on, after noticing that he had a fracture, stated that the injury was ‘grievous’. It is after noting that there was a multiple linear fracture, he changed his opinion about the seriousness or category of injuries. The approach of the doctors is incorrect. Whether they are ignorant, or attempted to take advantage of the absence of a broad defining line bringing the injuries suffered by Raees and Nafitulla in other more obvious categories provided by Section 320 of the I.P.C., is difficult to understand. The concept that the injuries being ‘serious when admitted’ and ‘turning out to be simple later’, as introduced by Dr. Choksi, is unheard of. The voluntary statement made by him when his evidence was being recorded to the effect ‘there was no fracture’ shows his concept, which is obviously erroneous. Because of such wrong conception, he admits that since in the ultimate result, the patient survived, he terms the injuries in question as ‘simple’. Regarding Raees, he says that at the end of the treatment, there were no complications and as such, the injuries were ‘simple’. Interestingly, he admits that if the injuries would lead to death, he would call the very same injuries as ‘grievous’.

494. It is apparent that the injuries suffered by all these six persons were very dangerous, on vital parts of the body and are necessarily required to be termed as ‘grievous hurts’. That they were dangerous, have been admitted by both these doctors. The only justification for calling them ‘simple’ is given as absence of fracture and that ‘no complications arose at the end of the treatment’. It is not possible to accept the theory of ‘grievous hurt subsequently turning into simple hurt’. Why this is elaborately mentioned a doubt is felt whether this is bona fide ignorance, or an attempt to reduce the gravity of the injuries. This is particularly so because Dr. Choksi was rather reluctant to admit that head is a vital part of the body. He qualified it by saying that it is so because brain is located in head. Nobody had asked him why head was a vital part of the body, but still, just in order to stick to his claim of injuries sustained by Raees being simple, he attempted to give a round-about answer.

495. In any case, the concepts ‘simple hurt’ and ‘grievous hurt’ are essentially legal. They are not medical concepts. From the evidence of these doctors themselves, it can be safely concluded that the injuries suffered by Raees and Nafitulla were also such, which had, in fact, endangered their lives and ought to be termed as ‘grievous hurt’. Since it is a legal concept, the Court is competent to give its own finding as to whether the hurt in question is ‘simple’ or ‘grievous’ and is not bound by the qualification made by a doctor. It is sufficient to take into consideration the facts in respect of nature of injury, as described by the doctor for enabling the Court to come to its own conclusion in that regard. The observations made by the Supreme Court of India in its decision in State of West Bengal V/s. Meer Mohammad Umar, A.I.R. 2000 SC 2998, [para-23] indicate that it is open to the Session Judge himself to deduce a particular injury to be ‘grievous hurt’ after knowing the facts thereof described by a doctor. In this case, as a matter of fact, the evidence of doctor does indicate that the injuries sustained by even Raees and Nafitulla were serious; and that they have simply omitted to qualify them as ‘grievous hurt’ either because of some misconception, or for any other reason.

496. The evidence of these doctors, anyway, shows that the injuries sustained by the said six witnesses could be caused by sharp cutting weapons.

WITNESSES FROM LOCALITY

497. Before examining the evidence of Zahira and others from Habibulla family, the evidence of Smt. Jyotsnaben Bhatt [P.W.43], Kanchanbhai Mali [P.W.44] and Veersinh Zala [P.W.45], who are the residents of the Hanuman Tekdi locality, may be examined. All these witnesses were declared hostile. They were examined in the original trial also and in that trial also, they had been declared hostile. However, the evidence of Jyotsnaben Bhatt and Kanchan Mali establishes the happening of the incident almost in the same manner, as is claimed by the supporting eyewitnesses.

498. Jyotsnaben states that on 01/03/2002, riots had taken place at Hanuman Tekdi; and that those were communal riots; and that at about 8.30. p.m. to 9.00 p.m. the mob was near the Hanuman Temple. Jyotsnaben also speaks of the noise of the mob and shouts like ‘maro’ ‘maro’. The size of the mob is given by her as of about 1,000 to 1,200 persons. From the attitude of Jyotsnaben, as reflected from her evidence, it is clear that she did not want to disclose anything in the matter and had decided to say that when the riots started she went inside and had not seen anything. However, pursuant to the permission to put questions in the nature of cross-examination, as granted, the learned Spl. P.P. has been successful in securing evidence from Jyotsnaben, supporting several aspects of the prosecution case. Thus, after confronting Jyostnaben with her previous deposition [X-75 for identification] recorded during the original trial, Jyotsnaben has admitted that she heard the noise and shouts; and that they were to the effect ‘mari nako’ ‘salgavi do’. Jyotsnaben also admitted that the mob was of Hindu persons; and that the persons in the mob were holding weapons – i.e. swords, ‘guptis’ and sticks. She also stated that the persons in the mob were having cans of petrol and kerosene with them. Jyotsnaben also states that the mob was there throughout the night; and that the persons in the mob were moving around the bakery building. Jyotsnaben has also stated that she did state about it during the original trial. Jyotsnaben admits having stated during the previous trial that when the persons in the Best Bakery building had climbed down, the persons in the mob had attacked them and also admits that this fact is true. Jyotsnaben also states that when the police arrived in the morning the Best Bakery building was burning; and that the persons from the fire brigade were attempting to extinguish the fire by spraying water. Jyotsnaben also states about burnt dead bodies of small children, men and women, as also the injured persons being put in the ambulance and taken to the hospital.

499. It is apparent from the evidence of this witness that she was certainly not inclined to depose in favour of the prosecution, but still, had to admit basic facts of the prosecution case, barring – of course – the connection of the accused with the alleged offences. It is also clear that she did not want to say before this Court even as much as she said during the previous trial and it is only after being confronted with the record of her deposition in that trial, she admitted certain things. Even then, she tried to qualify her statements by saying that she had not seen those happening herself, but had heard that they had taken place. Since the house of this witness is situated extremely close to and right in front of the Best Bakery building, it is clear that she must have heard, seen and known much more than what she states.

500. The deposition of this witness during previous trial having been marked and exhibited by consent as Ex.158, the same can be read. It makes an interesting reading. Jyotsnaben had claimed in the previous trial about it being dark, though she had described the incident. The darkness did not prevent her from seeing the incident, but it prevented her from describing the persons in the mob. Before that Court and before this Court also, she does not dispute the morning incident. Moreover, even though she claimed in her deposition [Ex.158] in the previous trial that there was dark, she is positive that the mob was of persons who had come from ‘outside’. In the cross-examination before that Court, it was got elicited from her that the mob was of strangers; and that the persons who were produced as accused in the Court were the persons of her ‘mohalla’. She has repeated in her previous deposition at another place also about the accused being from her ‘mohalla’ and having saved the Muslim families in their area. Here, before this Court, Jyotsnaben has not said anything about the accused having saved lives of any Muslim families in the area. Jyotsnaben cannot be considered as truthful witness and her bias against the prosecution is apparent. However, even she does not dispute the happening of the incident – also of the happening of the morning incident. What also requires to be noted is that she was reluctant during this trial to say even as much as she had said earlier.

501. Kanchan Mali [P.W.44] states that the Best Bakery building is situated at a distance of about 40 feet from his house. He also speaks of the riots; and that on 01/03/2002 at about 8.30 p.m. to 9.00 p.m. a mob of persons had assembled near Hanuman Temple; and that those persons were slowly moving towards the bakery and were shouting to the effect ‘maro’ ‘todo’, ‘bakery jalao’, etc. The witness initially wanted to avoid saying anything further and therefore stated that on noticing this, he was frightened and closed the door of his house and remained inside. Obviously, as his evidence reveals, this was stated with the object of avoiding any further questions and answers about the incident. A curious aspect of the evidence of this witness is that he deposes about the happenings and then suddenly says that ‘it had indeed happened that way, but he had not seen it’. Ultimately, what he admits is interesting. That he had seen the members of mob that had gathered at Hanuman Tekdi; and that they were having sticks and stones. When confronted with his deposition [X-77 for identification] in the Court at Vadodara, he admitted having said there about the rioters being armed with ‘guptis’ also, but claimed that he might have stated so because he had heard it. He also admits having stated so during the previous trial. Thus, he does indeed support the prosecution, but then suddenly withdraws and states that all this had happened is true, but he had not seen it. It is obvious that he is not willing to disclose all that he knows. Though much can be said about his evidence, it would not be of much use in the ultimate analysis and therefore, I would concentrate on what he ultimately admits as personally experienced and seen by him.

502. He does speak that he had seen the mob of rioters. According to him, some persons from the locality had come in the morning for helping the inmates of the Best Bakery building. Kanchan Mali says he himself saw the happening on the rear side of the Best Bakery building; and that those persons were trying to help the inmates of the Best Bakery building from the rear side. Thus, according to him, the persons who had gathered there in the morning were not the assailants, but the persons assembled for helping the inmates. He also says that he saw a ladder. He also states that help was being given by those persons to the inmates of the Best Bakery building, by putting up something like ladder. However, curiously, he states that when the police came, those persons, whom he refers to as ‘hamarewale’, ran away. He has clarified that by ‘hamarewale’ he meant ‘Hindu’. He said that he could not say who were those Hindu people; and that he did not know their names. He was therefore questioned as to how then he understood them to be ‘Hindus’, to which he has replied that ‘because in that locality, only Hindus were residing’. After prolonged questioning, apparently the witness was anxious and worried over the answers which he was giving and then gave, deliberately confusing, inconsistent and rather foolish appearing answers. His idea seems to be to make his evidence absolutely incomprehensible.

503. He admits having said to the police that the persons in the mob were having sharp weapons like swords and ‘guptis’ and also petrol, kerosene ‘kaarba’, but claims that it was stated on the basis of what he had heard. He however, admits that he did not state before the police that what he was telling them was based on what he had heard. He stated before the police, as if, he had seen those things himself. He adds that it was his mistake not to have stated to the police that the facts which he was stating to them were not seen by him, but were heard by him. This is how he tries to resile from what he has stated. At the same time, he states that in the Court at Vadodara, he stated only the facts which he had personally seen or observed. He agrees that it did happen that the mob of Hindus had ransacked the Best Bakery building; and that they had set on fire the Best Bakery building and the house adjoining the bakery building. After having said so, he takes a pause and volunteers as follows: This had happened certainly, but I had not seen it’ This is ridiculous and this is what the attempt of the witness appears to be viz. to make it appear that the evidence given by him is ridiculous so that it can be excluded from consideration.

504. I have no hesitation to conclude that he has given false evidence.

505. What he however, admits as having seen himself is that people from Best Bakery building were getting down, that they were being attacked by the mob as soon as they got down, that the ladies were being dragged; and that when the men tried to run away, the persons in the mob tied their hands and legs and set them on fire. He confirms that on seeing this sorrowful scene [‘dardnaak drishya’] and since he was not able to bear it he went to his house [pg. 1654, para-31 of the Notes of Evidence]. Thus, this, he himself has actually seen. It was got clarified from him as to what was the ‘sorrowful scene’ which he was unable to see when he answered as "woh jo maar-jhod kar rahe the". He admitted again, that the persons were beaten and blows were being given to them. He however, made an obvious attempt to dilute the same by saying that the assault was by ‘sticks’. This is inconsistent with the injuries sustained by the concerned persons who were obviously the inmates of the Best Bakery building.

506. Apparently the witness himself was unable to think of an explanation regarding the absurdity in his evidence viz. mentioning of certain facts as having happened and then adding that he had not seen or perceived the said facts.

507. Shri Shirodkar, the learned Senior Advocate in the cross-examination supplied some explanation to this witness of his evidence which the witness gladly accepted. Thus, it was asked to the witness that the police were asking him something whether it had happened in particular way and he saying ‘Yes’, to which naturally the witness has agreed, having found out a way of explaining how facts not seen by him are appearing in his evidence and the statement before the police. A reason for his going on answering in affirmative to the questions put by the police is also supplied. Thereafter, the theory of darkness is introduced which also, is accepted by this witness. Unfortunately for the accused, it could not be suggested that it was dark in the morning also and as such, the evidence regarding the incident in the morning as given by Kanchan Mali could not be established to be false, though Kanchan Mali would have been certainly willing to indicate the same, had he got any suggestion as to how it could be done.

508. If at all, any doubt, about Kanchan Mali’s determination not to support the prosecution and about his falsehood remained, the same is removed from the questions put to him, in the cross-examination and the answers given by him to those questions.

509. Veersingh Zala [P.W.45] is also a resident of Daboi Road locality. Though he claims that Hanuman Tekdi is situated at a distance of about 1/2 kilometres from his house, the same does not appear to be correct. He is supposed to have witnessed the incident, but in his testimony before the Court, denied any knowledge about the same. He was declared hostile during the previous trial also. He was contradicted with certain portions from the record of his statement [X-78 for identification] recorded by the police during investigation. These contradictions are duly proved and have been marked as Ex.438 to Ex.444 respectively. However, even after confronting him with the relevant portions, this witness did not admit the truth or correctness thereof, or even the fact of having stated so. His evidence is therefore of no assistance to the prosecution. According to him, he does not know the accused or any of them. He however admits that the accused in this case, are from his locality and from nearby locality.

510. A consideration of the evidence of Smt. Jyotsnaben Bhatt [P.W.43] and Kanchan Mali [P.W.44] shows that both of them were clearly unwilling to depose in favour of the prosecution. The reluctance was more than was in the previous trial. Though, these witnesses were declared hostile and though I have held that they have given false evidence, it is not that their evidence is to be totally excluded, from consideration. The part of their evidence which is found to be true can be accepted. The evidence favourable to the prosecution, as obtained from these witnesses is of great value, coming as it is, from witnesses unwilling to support the prosecution.

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