IN
THE COURT OF SESSIONS FOR GREATER BOMBAY
AT MAZGAON
SESSIONS CASE NO. 315 OF 2004
The State of
Gujarat ]
[at the instance
of PI D.C.B. ]
Police Station,
Vadodara ]
Complainant.
City, Gujarat
State. [C.R. ]
No. 82/2002 of
Panigate ]
Police Station]
]
Versus
1] Rajubhai Dhamirbhai Baria.
]
Hanuman Tekdi, Daboi Road, ]
Vadodara,
State Gujarat. ]
2] Mahendra @
Langdo ]
Vishwasrao
Jadhav. ]
Hanuman Tekdi,
Daboi Road, ]
Behind
Naikpura Woodland, ]
Vadodara,
State Gujarat. ]
3] Haresh @
Tino Virendragir ]
Gosai. ]
Hanuman Tekdi,
Daboi Road, ]
Vadodara,
State Gujarat. ]
4] Pankaj
Virendragir Gosai. ]
Hanuman Tekdi,
Daboi Road, ]
Vadodara,
State Gujarat. ]
5] Yogesh @
Painter ]
Laxmansinh
Varma. ]
Behind Vihar
Theatre, ]
Near Jain
Temple, ]
Pratapnagar,
Vadodara, ]
State
Gujarat. ]
6] Pratapsinh
Ravjibhai ]
Chauhan. ]..
[Orig. A/10]
Hanuman Tekdi,
Daboi Road ]
Vadodara,
State Gujarat. ]
7] Sanjay @
Bhopo Ratilal ]
Thakkar. ]..
[Orig.A/11]
Mahesh Mangal
Society, ]
Waghodia
Road,Vadodara, ]
State
Gujarat. ]
8]
Bahadursinh @ Jitu ]
Chandrasinh
Chauhan. ].. [Orig. A/12]
Behind Bhabha
Plan, ]
C. Ramnagar
Road, ]
Sainathnagar,
Mohd. Talao ]
Vadodara,
State Gujarat. ]
9] Yasin
Alibhai Khokhar. ].. [Orig. A/13]
Hanuman Tekdi,
Daboi Road ]
Vadodara, ]
State
Gujarat. ]
10] Jagdish Chunilal Rajput. ].. [Orig. A/14]
Ranmukteshwar Road, ]
Tejab Mill Chawl, ]
Pratap Nagar, ]
Opp. Bhataji Temple, ]
Vadodara, State Gujarat. ]
11] Dinesh
Phulchand Rajbhar. ].. [Orig. A/15]
Daboi Road,
Ansuya Nagar, ]
Opp. Bhataji
Temple, ]
Vadodara,
State Gujarat. ]
12] Shanabhai
Chimanbhai Baria. ].. [Orig. A/16]
Soma Talao,
Daboi Road, ]
Zopadpatti,
Vadodara, ]
State
Gujarat. ]
13] Tulsi
Bhikabhai Tadvi. ].. [Orig. A/17]
Hanuman Tekdi,
Daboi Road, ]
Vadodara, ]
State
Gujarat. ]
14] Shailesh
Anupbhai Tadvi. ].. [Orig. A/18]
Hanuman Tekdi,
Daboi Road, ]
Vadodara,
State Gujarat. ]
15] Kamlesh
Bhikabhai Tadvi. ].. [Orig. A/19]
Hanuman Tekdi,
Daboi Road, ]
Pratap Nagar
Road, ]
Vadodara,
State Gujarat. ]
16] Suresh @
Lalo Devjibhai ]
Vasava. ]..
[Orig. A/20]
Daboi Road,
Ansuya Nagar ]
Pratap Nagar,
Vadodara, ]
State
Gujarat. ]
17] Ravi
Rajaram Chauhan. ].. [Orig. A/21]
Yamuna Mill,
Juna Jakat ]
Naka, Daboi
Road, ]
Ansuya Nagar,
]
Vadodara, State Gujarat. ]
CORAM: HIS
HONOUR THE ADDL. SESSIONS JUDGE
SHRI A.M.
THIPSAY
DATED:
24/02/2006
Smt. Manjula
Rao, Special Public Prosecutor for the State of Gujarat, with Advocate
Shri A.R. Pandey
and Advocate Shri J.P. Yagnik to assist her.
Shri Adhik
Shirodkar, Senior Advocate, with Shri D.S. Jambaulikar, Advocates for
Accused
Nos. 1 to 5, 10, 11 and 12.
Shri Mangesh
Pawar, Advocate for Accused Nos. 16, 17, 18, 19 and 21.
Shri V.D.
Bichu, Advocate for Accused Nos. 13, 14, 15 and 20.
ORAL JUDGEMENT
Additional Sessions Judge, First Fast Track Court,
Vadodara, State of Gujarat, in Sessions Case No. 248 of 2002, and were
acquitted. This is a retrial of the said case.
2. The retrial has been held pursuant to the
directions given by the Supreme Court of India, in the circumstances
mentioned below.
3. The prosecution launched against the accused is on
the basis of a report under Section 173 (2) (i) of the Code of Criminal
Procedure [hereinafter referred to as the Code for the sake of brevity],
submitted by the Inspector of Police, D.C.B. Police Station, Vadodara
City, State of Gujarat, on the allegation that they have committed
offences punishable under Sections 143, 147, 148, 149 of the Indian Penal
Code read with Sections 452, 302, 307, 323, 324, 326, 337, 342, 395, 435,
436, 427, 504, 506, 201 and 188 of the Indian Penal Code, as also an
offence punishable under Section 135 of the Bombay Police Act.
4. The incident giving rise to the aforesaid offences
is a fallout of the communal riots that took place in Vadodara city and
elsewhere also in the State of Gujarat pursuant to the incident of the
burning of bogie of Sabarmati Express on 27/02/2002, carrying kaar-sevaks
returning from Ayodhya. The belief that Muslims had burnt the bogie
carrying kaar-sevaks was spread in Vadodara city through various
sources and mediums. This gave rise to excitement and feelings of anger
against the Muslims, resulting in the atmosphere in the Vadodara city
becoming tense and communally charged.
5. The prosecution case, in a nutshell, is that during
the period between about 8.30 p.m. on 01/03/2002 and 11.00 a.m. on
02/03/2002, residential building and bakery belonging to a Muslim family
was set on fire and burnt down by members of an unlawful assembly, the
object of which, was to attack and kill the Muslims and to snatch, or
damage, or destroy their properties. In the fire set to the said building,
a number of persons were burnt to death. Those who survived till the
morning were made to get down from the terrace of the said building, after
which they were attacked with deadly weapons causing serious injuries to
them. Some of them succumbed to those injuries. The movable property such
as vehicles, etc., had also been set on fire by the mob of rioters.
Articles such as ghee and maida, etc., were robbed and
looted. The accused persons were members of the said unlawful assembly, in
prosecution of the common object of which the aforesaid offences were
committed by its members. The accused were, therefore, the offenders. In
the course of investigation, they were arrested and prosecuted, as
aforesaid.
6. During the original trial, a number of witnesses
including the first informant Smt. Zahira Shaikh and other victims
turned hostile and as aforesaid, the case resulted in acquittal of all the
accused. After the acquittal, a grievance was made by the victims that
they had been threatened not to speak the truth and not to implicate the
accused persons; and that due to such threats, they had been forced to
speak lies in the Court. The first informant Smt. Zahira Shaikh
appeared before the National Human Rights Commission, stating that she had
been threatened not to depose against the accused persons. A number of
allegations, including the allegation of improper conduct of the trial,
were made. The role played by the investigating agency was criticised.
When the matter was taken to the Supreme Court of India by some of the
victims and one N.G.O. Citizens for Justice and Peace the Supreme
Court of India, by holding that there was ample evidence on record
demonstrating the subversion of justice delivery system and that no
congenial or conducive atmosphere was till then prevailing, directed
retrial to be done by the Court under the jurisdiction of the Bombay High
Court. The Supreme Court requested the Chief Justice of the Bombay High
Court to fix up a Court of competent jurisdiction to hold the retrial.
Pursuant to the said order and direction of the Supreme Court of India,
the present retrial is being held by this Court.
7. It would be proper to mention here the prosecution
case, by giving necessary details covering the background, the incident
leading up to the registration of the F.I.R., the arrests of the accused
persons, the investigation carried out thereafter, as can be gathered from
the police report, and the narration of the prosecution witnesses unfolded
during the present trial.
142. After this Court was nominated by the Honble
Chief Justice of the Bombay High Court for holding retrial, in due course,
the record of proceedings in respect of the trial held by the Sessions
Court at Vadodara was received by this Court.
143. Even after the receipt of the record of
proceedings, the retrial could not be commenced, as the presence of the
accused persons could not be secured immediately. It took some time to
secure the presence of the accused persons. The original Accused No.6
Jayantibhai Jamsinh Gohil, Accused No.7 Ramesh @ Rinku Jayantibhai Gohil,
Accused No.8 Mafat @ Mahesh Manilal Gohil and Accused No.9 Harshad @
Munno Ravjibhai Solanki, however, could not be found in spite of issuing
coercive process and publication of proclamation requiring their presence
before the Court. Warrants of arrest against them were directed to the
Mumbai police also, but those accused could not be traced. The case of the
said four accused was therefore separated and the trial proceeded against
the above-mentioned accused only. Procedure as contemplated under Section
299 (1) of the Code was followed and it was declared that the evidence of
the witnesses recorded in this case would be treated as the record of
evidence against the said absconding accused. Accused Ravi Rajaram Chauhan
[original Accused No.21], who was on bail during the previous trial and
who surrendered before this Court, was allowed to remain on bail during
the retrial also.
144. Though the case against the said four accused
has been separated, for the sake of convenience, all the accused persons
are being referred to by the same numbers which were given to them
originally i.e. during the previous trial.
145. After going through the police report,
accompanying documents and record of the case, it was thought proper to
frame appropriate charges against the accused persons, instead of
proceeding to record evidence on the basis of the charge framed during the
previous trial.
146. The charge of offences punishable under Sections
143 of the I.P.C., 147 of the I.P.C., 435 of the I.P.C. r/w. 149 of the
I.P.C., 436 of the I.P.C. r/w. 149 of the I.P.C., 395 of the I.P.C., 395
of the I.P.C. r/w. 397 of the I.P.C., 342 of the I.P.C. r/w. 149 of the
I.P.C., 448 of the I.P.C. r/w. 149 of the I.P.C., 449 of the I.P.C. r/w.
149 of the I.P.C., 450 of the I.P.C. r/w. 149 of the I.P.C., 451 of the
I.P.C. r/w. 149 of the I.P.C., 324 of the I.P.C. r/w. 149 of the I.P.C.,
326 of the I.P.C. r/w. 149 of the I.P.C., 302 of the I.P.C. r/w. 149 of
the I.P.C. and 188 of the I.P.C. was framed against all the accused.
Additionally, the charge of an offence punishable under Sections 144 of
the I.P.C. and 148 of the I.P.C. was framed against Accused Nos.10, 12, 19
and 21.
147. At that time, i.e. on 22/09/2004, Accused No.11
Sanjay Ratilal Thakkar had not been apprehended. After his apprehension, a
separate charge of offences punishable under Sections 143 of the I.P.C.,
147 of the I.P.C., 435 of the I.P.C. r/w. 149 of the I.P.C., 436 of the
I.P.C. r/w. 149 of the I.P.C., 395 of the I.P.C., 395 of the I.P.C. r/w.
397 of the I.P.C., 342 of the I.P.C. r/w. 149 of the I.P.C., 448 of the
I.P.C. r/w. 149 of the I.P.C., 449 of the I.P.C. r/w. 149 of the I.P.C.,
450 of the I.P.C. r/w. 149 of the I.P.C., 451 of the I.P.C. r/w. 149 of
the I.P.C., 324 of the I.P.C. r/w. 149 of the I.P.C., 326 of the I.P.C.
r/w. 149 of the I.P.C., 302 of the I.P.C. r/w. 149 of the I.P.C. and 188
of the I.P.C. was framed against him also.
148. The charge was read over and explained to all the
accused persons. All the accused pleaded not guilty to the charge and
claimed to be tried.
149. In order to establish its case against the
accused persons, the prosecution has examined, in all, 75 witnesses, all
of whom, except P.W.18, P.W.59, P.W.64, P.W.65 and P.W.73, have been
referred to earlier while narrating the details of the prosecution case.
Dinubhai Ambalal Patel [P.W.18] is the Chief Fire Officer through whom
certain documents were got produced. Rajendra Chavan [P.W.59] is an
Inspector of Police who had, on 16/12/2003, recorded the statement of
first informant Zahira Shaikh [P.W.41] in connection with the question of
protection to be provided to her. He was examined to prove certain
previous statements made by Zahira and for the purpose of contradicting
her testimony on certain points. Prakash Pathak [P.W.64] is the Assistant
Sub-Inspector of police attached to the Special Branch, through whom the
notifications against forming of assemblies [Ex.253], prohibiting the
possession of arms [Ex.254] and imposing curfew [Ex.255] issued by the
Commissioner of Police, have been produced. Parimal Keshabhai Velera
[P.W.65], Deputy Commissioner of State Intelligence, State of Gujarat, has
been examined to establish that certain video shooting was officially done
by the Gujarat Police during the riots in question. Pankaj Shankar
[P.W.73] is a Journalist who voluntarily appeared before the Court and who
was examined by the prosecution for proving certain statements of Zahira
[P.W.41], Nafitulla [P.W.31], Saherunnisa [P.W.40] and Nasibulla [P.W.30],
said to be recorded by this witness on a video during their interview
taken by this witness on 18/04/2002. The witness has produced a video
cassette [Ex.389] containing the record of the said interviews.
150. The accused have examined 5 witnesses in defence.
D.W.1 Kumar Swami, Inspector General of Police, State Intelligence
Bureau, State of Gujarat, has been examined for proving some previous
statements made by Smt. Yasmin [P.W.29] to him, with the object of
contradicting Smt. Yasmin. D.W.2 Deepak Swaroop is the Commissioner of
Police, Vadodara City, who was apparently examined to establish the
existence and maintenance of a lock-up register by the D.C.B. Police
Station, Vadodara, at the material time. D.W.3 Ramjibhai Jagjibhai Pargi,
Assistant Commissioner of Police, Vadodara City, was also examined for
establishing certain previous statements made by Smt. Yasmin to him with
the object of contradicting the testimony of Smt. Yasmin. D.W.4 Mrs.
Khyati Pandya is the Chief Executive Officer of a local T.V. channel in
Vadodara. She also has been examined for the purpose of proving certain
previous statements made by Smt. Yasmin in an interview given to local T.V.
channels. The C.D. [Art.R/38] containing a record of the relevant
interview and its transcription marked as Ex. 514(colly.) is said to be
prepared by her. D.W.5 Ajay Jasubhai Patel is the videographer who had
done the video shooting in respect of an interview of Smt. Yasmin in which
she had made the statements contained in the said C.D. [Art.R/38]. It is
on the basis of the shooting done by him by using a Mini D.V. camera and
cassette, the said C.D. [Art.R/38] came to be prepared by Smt. Khyati
Pandya [D.W.4].
151. Apart from the oral evidence, a number of
documents have been tendered in evidence, marked and exhibited. These
include photographs, video cassettes and video C.Ds.
152. Local inspection of the place of offences and
other places was carried out. The learned Advocates for the accused had
made an application even before the commencement of the recording of
evidence praying that local inspection should be carried out. However, it
was thought not necessary to carry out the local inspection at that point
of time. Later on, before the evidence of the Investigating Officer PI
Shri P.P. Kanani [P.W.74] was recorded, the learned Advocates for the
accused again made an application praying for local inspection. In the
said application, it was categorically asserted, inter alia,
as follows:
"A visit by this Court will conclusively prove that none
of the witnesses, who claim to have seen the accused, could have, in fact
seen them."
and that: "A grave prejudice will be caused to the
accused if this is not done."
In view of this emphatic and categorical assertion on
behalf of the accused, the application was allowed. Local inspection was
carried out on 26th May [in the night] and 27th May 2005 [in the morning],
as the learned Advocates for the accused had expressed that it was
necessary to inspect the relevant places in the night, as well as in the
morning.
153. The memorandum of the facts observed at the said
inspection [Ex.402] is on record.
154. The defence of the accused persons, as appearing
from the cross-examination of the prosecution witnesses and from their
examination under Section 313 of the Code, is of total denial. Though
there are certain variations in certain contentions raised by the accused
persons which variations occurred as the trial progressed the basic
defence of the accused persons is that they have not committed the alleged
offences; and that they have been falsely implicated. The accused persons
claim to be unaware of the alleged incident. They maintain that they have
been falsely implicated, though, there are variations as regards the
persons at whose instance they have been falsely implicated and/or the
reasons for the false implication.
155. A remarkable aspect of the retrial must be
mentioned at this stage itself. It may be recalled that Zahira Shaikh
[P.W.41], the first informant, had complained about the threats and about
having been forced to depose in favour of the accused because of the
threats received by her and her family members from the workers of the
Vishwa Hindu Parishad, Bharatiya Janata Party and had made allegations
against a local Municipal Corporator and a Member of the Legislative
Assembly. It was Zahira at whose instance the Honble Supreme Court of
India had ordered a retrial. Zahira was being helped by an N.G.O.
Citizens for Justice and Peace and the Secretary of the said N.G.O.
Smt. Teesta Setalvad. Zahira, who had, after the trial, come to stay in
Maharashtra and had sought police protection on the ground that she
apprehended danger at the hands of persons who were interested in
supporting the accused, after the commencement of the retrial, left the
police protection and went back to Gujarat. After going there, Zahira
obtained police protection from the Gujarat Police. She claimed that she
had been earlier kidnapped and kept in confinement by Smt. Teesta Setalvad.
She even denied having filed any appeal, or petition in the Honble
Supreme Court of India, praying for retrial. She claimed that her
signatures had been obtained on some blank papers by Smt. Teesta Setalvad.
Her relatives i.e. brothers Nafitulla [P.W.31], Nasibulla [P.W.30],
mother Saherunnisa [P.W.40] and sister Sahera [P.W.35] also turned
hostile and made similar allegations against the said N.G.O. and its
Secretary Smt. Teesta Setalvad.
Thus, a situation arose where the supposed victims of the
crime, who had supposedly approached the Honble Supreme Court of India
with a grievance that no fair trial had been held, that they had been
threatened and prevented from deposing the truth and who had secured an
order of getting the matter retried on the basis of all these assertions,
started saying that they were having no grievance about the previous
trial, that they never had any grievance in that regard, that they had not
asked for a retrial at all. They made statements suggesting that the
retrial had been wrongly ordered; and that the Honble Supreme Court was
misled into believing that the previous trial was vitiated. Zahira had,
after the original trial, appeared before several authorities, including
the National Human Rights Commission, Election Commission, where she had
been consistent in her allegations that she had received threats due to
which she could not speak the truth during the trial. After turning
hostile, she either said that she had never made any such grievance to any
authority at all, or said that whatever she stated before the concerned
authorities was a result of tutoring by some persons.
156. The matter is so bitterly fought that the process
of recording of evidence was marked by a number of objections and a
requirement of making elaborate notes in respect of the objections.
157. Smt. Manjula Rao, the learned Spl. P.P.,
contended that the same forces or powers that had earlier threatened
Zahira and other witnesses not to depose the truth before the Court, had
again become active rather more active after a retrial was ordered and
had tampered with the witnesses. It was contended that the crucial
witnesses had been bribed and also kept in confinement or observation so
as to keep a check on the possibility of their again changing their minds.
She further submitted that in spite of Zahira [P.W.41] and other witnesses
again turning hostile, the prosecution has succeeded in proving its case
beyond reasonable doubt. Smt. Rao submitted that the occurrence witnesses/
eyewitnesses who have supported the prosecution case are reliable and
trustworthy; and that their testimony should be accepted. She also
submitted that there was undoubted and voluminous other evidence which
corroborates the version of the eyewitnesses. She also contended that why
Zahira [P.W.41] and others from her family had turned hostile was clear
from the evidence on record; and that even from them, facts supporting the
version of the prosecution, particularly relating to the occurrence, have
been elicited.
158. Shri Adhik Shirodkar, the learned Senior Advocate
on behalf of accused, on the other hand, contended that the entire
prosecution is false and motivated. It was contended, inter alia,
that Zahira and her family members were actually telling the truth
before the Court; and that at the instance of the said N.G.O., a false
colour was given to the matter with ulterior motives; and that the Honble
Supreme Court of India was misled in order to secure an order for retrial.
It was submitted that, the investigating agency had been unfair to the
accused; and that the investigation is tainted and vitiated. It is
contended that the occurrence witnesses who have supported the prosecution
case, had been tutored; and that there is a clear indication of the same
from the evidence on record. According to him, versions of the witnesses
who have supported the prosecution case are contrary to their versions in
their respective statements recorded by the police during investigation.
According to Shri Shirodkar, all the witnesses have improved upon their
original versions, to implicate the accused, as a result of tutoring.
159. Shri Jambaulikar, the learned Advocate for
Accused Nos.1 to 5, 10, 11 and 12, Shri V.D. Bichu, the learned Advocate
for Accused Nos. 13, 14, 15 and 20 and Shri Mangesh Pawar, the learned
Advocate for Accused Nos. 16 to 19 and 21, have adopted all the arguments
advanced by Shri Shirodkar and have also advanced separate oral arguments
of their own.
160. In addition to the oral arguments, memorandum of
written arguments [Ex.521/A] has been filed by Shri Shirodkar on behalf of
all the accused. Though these written arguments/ submissions have been
filed on behalf of all the accused, Shri Bichu and Shri Pawar have still
thought it fit to file additional and separate written arguments [Ex.522/A
and Ex.523/A respectively] on behalf of the respective accused whom they
represent.
161. I have carefully gone through the entire evidence
on record. I have taken into consideration the arguments advanced by the
learned counsel, oral and written. I have taken into consideration the
ratio of decisions of the Apex Court and of various High Courts cited by
and relied upon by the learned counsel in support of their respective
contentions.
162. Upon considering the prosecution case, the
evidence adduced, the defence of the accused and the arguments advanced,
the points which arise for my determination are mentioned below together
with the answers thereto, as follows.
Reasons
As to Point No. 1:
163. On this point, there is clear and undoubted
evidence. In fact, this point is not in dispute at all. I shall,
nevertheless, examine the evidence in that regard so as to be able to
appreciate the happenings in proper perspective.
164. PI Shri H.G. Baria [P.W.72] has stated that on
27/02/2002, a train was set on fire at Godhra railway station.
kaar-sevaks returning from Ayodhya who were in that train were
burnt. The Commissioner of Police, Vadodara city, had therefore
apprehended that there would be some law and order problem in Vadodara
city. The Commissioner of Police, Vadodara city, had called a meeting of
the police officers on 27/02/2002. The police officers were asked to be
vigilant and maintain law and order. Specific instructions were given to
depute police personnel in communally sensitive areas. PI Baria [P.W.72]
took several precautions as the Inspector in-charge of Panigate Police
Station, with respect to the area under his control. Preventive action was
taken against the persons who were involved in previous communal riots.
Twenty-two points were identified as communally sensitive points and one
armed A.S.I. and two armed constables were deputed on every such police
point. Additionally, regular police patrolling in various mobile vans was
maintained. PI Baria has stated that repeatedly messages were being
received from the Control Room regarding the incidents of communal riots
at different places. Information about the incidents of communal riots
used to be received by the police from the public also. According to PI
Baria, during the period from 00.00 hours on 28/02/2002 to 24.00 hours of
01/03/2002, 58 cases of crimes all regarding communal riots were
registered at the Panigate Police Station. On 28/02/2002, 80 messages were
given to Panigate Police Station by the Control Room and on 01/03/2002,
about 200 messages were received from the Control Room. Additionally, 45
messages were received at the Panigate Police Station from the public. All
these messages were relating to the communal riots and regarding the
incidents that were taking place in the area under the jurisdiction of
Panigate Police Station. The messages that were being received, were
regarding damage caused by Hindu people to the properties of Muslims, such
as shops, factories, etc., and were also regarding the bodily offences
committed by the Hindus against the Muslims. The incidents were of
stabbing, setting shops and houses on fire, etc. PI Baria [P.W.72] has
also referred to a report received on 01/03/2002 at about 8.30 p.m. from
the Control Room where the mobs of Hindus and Muslims consisting of 1,500
persons on each side had assembled behind Gajrawadi Police Chowki; and
that stone throwing was going on on both the sides. The police had to
resort to gas gun firing. Thus, the evidence of PI Baria alone is
sufficient to indicate that the atmosphere in Vadodara city had become
tense; and that various incidents of communal violence were taking place
during that period.
165. PI Shri P.P. Kanani [P.W.74] has also described
the situation prevailing in Vadodara city during the relevant period
PI Kananis [ P.W.74] evidence shows that additional police force from
outside was brought in Vadodara city and to meet the requirement of
additional vehicles, private vehicles were hired, fitted with wireless
sets, mikes, etc., making them suitable for use by the police. PI Kananis
evidence also shows that while the affected Sabarmati Express train was
required to pass through Vadodara railway station, on the platform of
Vadodara railway station, one Muslim person was stabbed to death in a
communal incident. There were incidents of truck burning and driver being
stabbed, rickshaw driver being stabbed, etc. Curfew was imposed by the
Commissioner of Police, Vadodara city, in almost every part of Vadodara.
PI Kanani [P.W.74] has stated that due to the publicity that was received
by the news regarding the incident of train burning at Godhra, there was a
feeling of anger and revenge as a result of which, communal incidents
started and properties of isolated Muslims were targeted, damaged and
destroyed. PI Kanani has clearly stated that by the evening of 28/02/2002,
communal riots were spread in the whole city. On 01/03/2002, there was a
call of Bharat Bandh from Vishwa Hindu Parishad. On that
day also, communal incidents took place on a large scale. Serious communal
incidents continued till 05/03/2002 after which the situation came
somewhat under control.
166. The evidence of these two witnesses is supported
by the evidence of other witnesses, including the occurrence witnesses,
but it is not necessary to discuss the same in this context. This is
particularly so because there is no challenge to this evidence and this
part of the prosecution case. The evidence of PI Baria [P.W.72] and PI
Kanani [P.W.74], which is not challenged and is supported by other
evidence, clearly establishes that during the relevant period and even
thereafter for some time, the situation in Vadodara city had become tense,
that various incidents of communal violence took place during this period;
and that serious law and order problems arose during this period.
168. The case of the prosecution rests mainly on the
evidence of 5 eyewitnesses who have supported the prosecution case. This
is true with regard to the happening of the incident which was spread over
from the night till the next morning also and not merely with respect to
the evidence to connect the accused persons with the alleged offences,
though with respect to the happening of the incident, there is
corroboration and support to the various parts of the story from other
witnesses and even from the hostile witnesses. These witnesses have been
extensively cross-examined. As their evidence touches almost all the
aspects of the prosecution case, it would be appropriate to discuss the
evidence of these 5 witnesses first. [Their evidence which tends to
connect the accused, or some of them, with the alleged offences, may,
however, require a more detailed and separate discussion]. In fact,
without first having a discussion on and the examination of their
evidence, the various contentions raised by the Advocates for the accused,
challenging the value on reliability of the prosecution case in general,
cannot be properly appreciated.
169. The evidence of the hostile witnesses is also
direct evidence and is required to be examined for whatever it is worth.
The legal principles laid down by the authoritative pronouncements of
superior Courts in the matter of appreciating the evidence of hostile
witnesses clearly indicate that the evidence of hostile witnesses is
nevertheless substantive evidence and it is for the Court to appreciate
the evidence considering the entire facts and circumstances of the case
and to come to a conclusion whether it is to be wholly discarded or
whether a part of it can be relied upon.
170. Before proceeding further to discuss the
evidence, a mention must be made of a video cassette [Art.R/27,
subsequently exhibited and marked as Ex.283] that has been tendered in
evidence. This video cassette was not forwarded to the Court along with
the charge-sheet and no mention of the same as a document or object on
which the prosecution would rely was made in the police report. The
background and the manner in which video cassette [Ex.283] came on record,
is rather interesting. A number of objections have been raised with
respect to the admitting of the said video cassette [Ex.283] in evidence
which shall be dealt with by me later at an appropriate stage. For the
present, I only observe that the video cassette [Ex.283] is properly
proved and is an important piece of evidence which corroborates several
aspects of the prosecution case.
171. I shall, now, consider the evidence of each of
the occurrence witnesses/ eyewitnesses who have supported the prosecution
case, in depth. Certain general contentions about the evidence of these
witnesses which are common to all, may, however, be separately discussed.
Further, the evidence of all these witnesses, so far it relates to
connecting the accused person with the alleged offences, shall be
separately and more meticulously examined later.
172. It may be kept in mind that none of these
witnesses, who are obviously very important witnesses, were examined
during the previous trial.
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