December 2011 
Year 18    No.162
Cover Story


JUDGEMENT
(Edited Excerpts)

IN THE COURT OF SESSIONS JUDGE

AT MEHSANA

DESIGNATED COURT FOR

VIJAPUR POLICE STATION ICR NO. 46/2002

[SESSIONS CASE NOS. 275/2002, 120/2008, 7/2009 & 72/2010]

Complainant: The State of Gujarat

Versus

76 Accused     ] 55 Accused in Sessions Case No. 275/2002

                     ] 8 Accused in Sessions Case No. 120/2008

                   ] 12 Accused in Sessions Case No. 7/2009

                  ] 1 Accused in Sessions Case No. 72/2010

CORAM: KUM. SC SRIVASTAVA, ESQUIRE

DATED: 09.11.2011

CHARGE

--  For the offence punishable under Section 143, IPC.
-- 
For the offence punishable under Section 147, IPC.
--  For the offence punishable under Section 144, 148, IPC.
--  For the offence punishable under Section 302 read with Section 149, in alternate Section 302, IPC.
--  For the offence punishable under Section 307 read with Section 149, in alternate Section 307, IPC.
-- For the offence punishable under Section 323, 324, 325 read with Section 149, in alternate Section 323, 324, 325, IPC.
-- For the offence punishable under Section 395, IPC.
-- For the offence punishable under Section 395, 397, IPC.
-- For the offence punishable under Section 396, IPC.
-- For the offence punishable under Section 435, 436 read with Section 149, in alternate Section 435, 436, IPC.
-- For the offence punishable under Section 447, 448 read with Section 149, in alternate Section 447, 448, IPC.
-- For the offence punishable under Section 336, 337 read with Section 149, in alternate Section 336, 337, IPC.
-- For the offence punishable under Section 295A, 153A, 297, IPC.
-- For the offence punishable under Section 120B, IPC.
-- For the offence punishable under Section 135, Bombay Police Act.


COMMON JUDGEMENT

1. Sessions case No. 275/2002, 120/2008 and 7/2009 arise out of one incident bearing ICR No. 46/2002 of Vijapur police station of Mehsana district committed before this court for trial. It appeared desirable to try all the above three sessions cases together therefore all the three cases were ordered to be consolidated and tried together as per order passed… on 12.06.2009 and therefore all the proceedings are ordered to be carried in sessions case No. 275/2002 being the main sessions. Moreover, a charge sheet against Arvindbhai Kashiram Patel was presented by the prosecution on 18.05.2010, which was committed to the present court on 04.06.2010 by the judicial magistrate, first class, Vijapur, and it is registered as sessions case No. 72/2010. As it arises out of ICR No. 46/2002, hence it was ordered to be consolidated and proceeded along with sessions case No. 275/2002, 120/2008 and 7/2009 hence proceeded accordingly in sessions case No. 275/2002.

2. The accused are charged in this case u/s [under Section] 143 of IPC [Indian Penal Code], u/s 147 of IPC, u/s 144, 148 of IPC, u/s 302 read with Section 149 in alternate Section 302 of IPC, u/s 307 read with Section 149, in alternate Section 307 of IPC, u/s 323, 324, 325 read with Section 149, in alternate Section 323, 324, 325 of IPC, u/s 395 of IPC, u/s 395, 397 of IPC, u/s 396 of IPC, u/s 435, 436 read with Section 149, in alternate Section 435, 436 of IPC, u/s 447, 448 read with Section 149 in alternate Section 447, 448 of IPC, u/s 336, 337 read with Section 149 in alternate Section 336, 337 of IPC, u/s 295A, 153A, 297 of IPC and u/s 120B of IPC, u/s 135 of the Bombay Police Act for forming unlawful assembly, committing rioting armed with deadly weapons like iron pipes, sticks, swords, etc and voluntarily causing grievous hurt in furtherance of a common object of unlawful assembly or in furtherance of their common intention, in village Sardarpura on 01.03.2002 at about 23:30 hrs.

3. The short facts giving rise to the prosecution’s case are as under: On 01.03.2002, at about 23:30 hrs, a mob of around 1,000 Hindus formed unlawful assembly, carrying deadly weapons viz iron pipes, sticks, swords, and attacked the Shaikh Mohalla, Sardarpura village, and houses, cabins and shops were set on fire. The house wherein the Muslim persons had sheltered themselves was also set on fire wherein 33 Muslims died and about 24 sustained injuries. Twenty-eight accused are named in the FIR [first information report]. The FIR was lodged on 02.03.2002 at about 9:00 hrs. Prior to the occurrence of the incident on 01.03.2002, there was a carnage incident which occurred on 27.02.2002 and there was a Gujarat bandh on 28.02.2002. Following the bandh on 28.02.2002, mobs had compelled closure of shops in Sardarpura village. At about 22:30 hrs to 23:00 hrs, a mob of Hindus set on fire cabins belonging to Muslims and other communities. Upon receiving information about it, subinspector [PSI] GK Parmar of Vijapur police station rushed to Sardarpura village and arranged fire extinguishers and asked the victims to lodge their complaint.

On the next day a Bharat bandh call was given and in the evening a meeting was organised by PSI GK Parmar to make efforts to maintain peace and harmony. He also continued patrolling in the village with his men in a police vehicle. He informed the Vijapur police station by wireless regarding the tense atmosphere. Thereafter, PSI ML Rathod was sent to Sardarpura village with a police mobile van and he reached the spot at about 20:30 hrs. Both the subinspectors patrolled in the village with staff and at about 22:00 hrs a mob of Hindus comprising about 1,500 persons carrying deadly weapons came shouting against the police and Muslims and started pelting stones and burning the shops, cabins, belonging to Muslims in the bazaar upon which the police resorted to lathi charge, lobbing tear gas and ultimately, firing, and dispersed the mob…

Nobody was seen moving in the village, as the situation in Vijapur town had worsened. On the message from the PI [police inspector] Shri KR Vaghela, police rushed to Vijapur town. Thereafter, on receiving the information that the atmosphere in Sardarpura had worsened, subinspectors ML Rathod and GK Parmar were sent again. They reached Sardarpura by clearing hurdles dumped on roads. Shri KR Vaghela also reached Sardarpura with firefighters. The SP [superintendent of police] and DySP [deputy superintendent of police] with their staff rushed to Sardarpura and then the rescue operation started. Fire was extinguished and people of the Muslim community were rescued from Shaikh Mohalla.

During the attack on Shaikh Mohalla many Muslim persons, women and children took shelter in a single pukka building of Shaikh Mohalla. The police rushed there and opened the door and found many of the sheltered persons dead. From this building, dead bodies of deceased and injured persons were shifted in police and private vehicles to Mehsana Civil Hospital. In the incident, 33 Muslims from Shaikh Mohalla died and 24 sustained injuries.

Accordingly, an FIR was lodged before the police inspector Shri KR Vaghela in Civil Hospital, Mehsana, on 02.03.2002 at about 9:00 hrs. The said was registered with the police station by police station officer Ambalal Karsanbhai on 02.03.2002 at about 11:30 hrs. Investigation was carried out by police inspector Shri KR Vaghela. Thereafter, it was carried out by Shri RD Baranda and lastly, on his transfer, investigation was carried out by PI Shri KP Patel while Shri BV Jadeja, DySP, Visnagar, the visitation officer in this case, supervised the investigation. Dead bodies of 28 deceased were identified by Nazir Mohamed Akbarmiya at the Civil Hospital, Mehsana, while other dead bodies were identified during the inquest by relatives of the deceased.

On 03.03.2002 a panchnama [written and attested record] of the place of offence was drawn. The place was shown by the victim Shaikh Bachumiya Imammiya. The damage done by the mob to the houses and vehicles, looting of properties, etc belonging to the Muslim families are shown in the panchnama. Post-mortem reports, injury certificates, were collected by the investigating officer [IO]. Furthermore, the statements of eyewitnesses, police witnesses, government witnesses and peripheral witnesses were also recorded by the IO.

4. During the investigation names of a total 55 accused were disclosed by the complainant and witnesses and all the 55 accused were arrested and subsequently charge-sheeted on 27.07.2002. All the 55 accused were released on bail by the sessions court, Mehsana, from time to time. As against those bails, no appeal was preferred by any of the IOs but the complainant approached the high court vide criminal misc application Nos. 4026/2002, 3590/2002, 3591/2002 and 2588/2002 requesting the high court to reject bail. But those applications were rejected by the high court of Gujarat. During the investigation clothes of the deceased after the post-mortem were collected by the IO and case property receipts (muddamal receipts) were prepared. During investigation the FSL [Forensic Science Laboratory] had visited the place of offence and collected various necessary samples like clothes of the deceased, articles taken from the place of offence, burnt clothes, containers and other samples; 14 weapons were recovered from 14 accused.

Ultimately, the charge sheet was submitted before the court of the judicial magistrate, first class, Vijapur, which was numbered as criminal case No. 724/2002 and it was charge-sheeted against 55 accused. Thus earlier investigation was carried out from 01.03.2002 to 27.07.2002 and during that investigation a map of the place of offence was prepared by the revenue circle inspector, Vijapur, and photographs of the scene of incident were also taken during the investigation. After submission of the charge sheet, a criminal case was committed to the sessions court vide sessions case No. 275/2002 and it was pending for framing of charges. The trial was stayed by the Supreme Court of India in transfer petition (criminal No. 194-202 of 2003 and 323-329 of 2003 with criminal misc petition No. 6970-6948 of 2003 and 407-410 of 2003 on 21.11.2003) in writ petition (criminal No. 109/03 and TP No. 194/03, 202/03, 326/03, 329/03) filed by the National Human Rights Commission (NHRC) in the Supreme Court of India.

5. The Supreme Court of India passed order on 26.03.2008 for forming of a Special Investigation Team (SIT) for the investigation of nine important cases of the post-Godhra carnage, inclusive of this case. In transfer petition No. 194-202/03 filed by the NHRC, 11 affidavits were filed before the Supreme Court of India in connection with this offence and ultimately, as per the direction of the Supreme Court, the Special Investigation Team has been formed, which had taken charge of further investigation and Shri GV Barot, assistant director, Anti-Corruption Bureau, was appointed as investigation officer of the present case with three team members and further investigation was carried out accordingly. During their investigation nine witnesses in their further statements have disclosed that they were also injured and this fact was not disclosed in previous investigation.

During the investigation by the SIT an advertisement was published in leading daily newspapers of Gujarat, inviting people to contact the SIT in person or through written application to give any relevant information or evidence in connection with the cases under investigation by the SIT as a result of which applications in this case were also received by the SIT. Statements of 44 witnesses, including the complainant, and 15 police persons were verified and their further statements were recorded by the SIT while statements of 39 new witnesses were recorded by the SIT.

6. Further, the place of incident was visited by the SIT to state the scene of incident and surrounding geographical situation and an additional sketch was prepared by the SIT with the help of the revenue circle inspector. Further, some photographs were also taken by the SIT and during their investigation 21 persons were named by the witnesses as accused and the SIT arrested accused Nos. 1 to 8 in sessions case No. 120/2008, on 26.05.2008. They were remanded to police custody subsequently, sent to judicial custody on 30.05.2008 and still are in judicial custody, and a supplementary charge sheet was filed on 22.08.2008, naming 13 persons as absconders and accused Nos. 9 to 21 were arrested on 03.09.2008 by the Vijapur police. On the report of the SIT, they were remanded to police custody up to 09.09.2008 and then sent to judicial custody on 09.09.2008. They are still in judicial custody. Supplementary charge sheets were submitted against them, excluding Arvind Kashiram in whose favour a report under Section 169 of the CrPC [Code of Criminal Procedure] was made, which was not accepted by the court and therefore, subsequently, a charge sheet against him has been submitted and all the cases have been committed to the sessions court for trial.

Thus the total number of accused before the sessions court are 76 under all the four cases. Further permission to prosecute all the accused for the offence under Section 153A, IPC, has been obtained from the competent authorities. Shri SC Shah has been appointed as special prosecutor and Shri VG Patel has been appointed as additional public prosecutor to conduct the trial of this case, by the government of Gujarat.

… … …

17. I have heard the arguments advanced by Shri SC Shah, learned special prosecutor, who is assisted by additional special prosecutor Shri VG Patel, appearing on behalf of the prosecution, as well as I have also heard the learned advocates Shri HM Dhruv, Shri BC Barot, Shri AM Patel, appearing on behalf of the accused persons. I have also gone through the written arguments… submitted by learned advocate Shri YB Shaikh, appearing on behalf of the original complainant. This court has paid sufficient attention towards the oral as well as written arguments advanced and/or submitted by the learned advocates appearing on behalf of both sides…

 

POINTS

19. The following points arise for my determination of this case:

1) Whether the prosecution proves that the deaths of the 33 persons are homicidal deaths?

2) Whether the prosecution proves that the accused or any of them, in furtherance of a common object, formed unlawful assembly with the common object of voluntarily causing hurt, grievous hurt, murder, burnt, and to rob the properties of the Muslim community and thereby became members of unlawful assembly?

3) Whether the prosecution proves that the accused or any of them formed unlawful assembly with the common object of voluntarily causing hurt, grievous hurt, murder, burnt, and to rob the properties of the Muslim community and thereby became members of unlawful assembly?

4) Whether the prosecution proves that the accused or any of them committed rioting by arming themselves with dangerous weapons?

5) Whether the prosecution proves that the accused, in furtherance of a common object of unlawful assembly, by using force and violence have committed rioting?

6) Whether the prosecution proves that the accused, in furtherance of a common object, voluntarily caused grievous hurt, burnt alive and assaulted Muslim men, women and children with intention, knowing fully well that if the said act is done, they may cause the death of persons and by doing this act, they have committed offence?

7) Whether the prosecution proves that all or any of the accused have committed offences causing the murder of 33 persons?

8) Whether the prosecution proves that all or any of the accused have, in furtherance of a common object of unlawful assembly, by burning men, women and children of the Muslim community, attempted to commit the murder of Shayanabanu Ayubbhai Shaikh, Basirabibi Bachumiya Shaikh and Iliyasbhai?

9) Whether the prosecution proves that all or any of the accused have, by burning men, women and children of the Muslim community, attempted to commit the murder of Shayanabanu Ayubbhai Shaikh, Basirabibi Bachumiya Shaikh and Iliyasbhai?

10) Whether the prosecution proves that accused No. 10, Patel Jayantibhai Jivanbhai, along with other persons, by forming unlawful assembly, committed dacoity of ornaments worth Rs 60,000?

11) Whether the prosecution proves that in furtherance of a common object of such unlawful assembly, all the accused or any of them have caused damage to the property of Muslim persons to the amount of Rs 85,87,500 along with destruction of 19 houses, three shops, five cabins, one hut, one jeep and one scooter and thereby committed offence?

12) Whether the prosecution proves that in furtherance of a common object of such unlawful assembly, all the accused or any of the accused have committed criminal trespass by entering the house of Bachumiya Imammiya Shaikh or the religious place of Muslims as well as the graveyard of Muslims with an intent to commit the offence of insult and possession of the Muslim people’s property?

13) Whether the prosecution proves that in furtherance of a common object of such unlawful assembly, accused No. 10 along with other persons caused hurt, grievous hurt, to the complainant and witnesses so rashly and negligently as to endanger human life?

14) Whether the prosecution proves that in furtherance of a common object of such unlawful assembly, accused No. 10 along with other persons spoke the words “Sala bandiyao ne maaro [Kill the bandiyas – a derogatory term used to address Muslims]” with deliberate and malicious intention to outrage the religious feelings of the Muslim community and promote feelings of enmity?

15) Whether the prosecution proves that in furtherance of a common object of such unlawful assembly, accused No. 10 along with other persons had entered the graveyard of the Muslim community and damaged the graveyard with intention to insult the feelings of Muslims?

16) Whether the prosecution proves that all the accused or any of them have committed criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment?

17) Whether the accused have committed offence by committing breach of the notification of the district magistrate, by arming themselves with burning rags, stones, dharias [sickles], swords, iron pipes and inflammable items, etc?

18) Which of the accused are liable for committing offences and if yes, under which sections?

19) What order?


REASONS

21. Before entering into the appreciation of evidence and deciding all the points in the case, it is desirable to discuss and decide the point regarding the FIR. As per the case of the prosecution, complainant Ibrahimmiya Rasulmiya Shaikh lodged a complaint before the Vijapur police in Mehsana Civil Hospital, which was produced during the deposition of the complainant. To exhibit the said complaint, objection was raised by the advocate appearing on behalf of the accused.

After considering the arguments advanced by the advocates and on perusing the citations on behalf of both sides, and keeping in mind the fact that the document in question was executed in Mehsana Civil Hospital and it was written as per the say of the complainant and the complainant had signed the complaint, and considering the citations, the complaint was given tentative exhibit as Exh. 484. Now, whether it should be considered as an FIR or not, or it should be regularly exhibited: For this purpose, relying upon the evidence of the complainant and police witnesses, it was argued by the special prosecutor that delay had been caused in lodging the complaint due to emergency of treatment to the injured persons, as it was an emergency to give priority to save the lives of the victims. Further, Vijapur is 45 km away from Mehsana. Thus the delay in lodging the complaint was a reasonable one and the complaint lodged by Ibrahimmiya Rasulmiya Shaikh is covered under Section 157, CrPC, is signed by the complainant and written at his instance and it was read over to him and thereafter it was signed by the complainant as well as the PI. Furthermore, the incident occurred on 01.03.2002 during 9:30 p.m. to 2:30 a.m.…

22. As per the case of the prosecution, 33 persons have died in the incident and their death is unnatural and homicidal. The following persons have died:

1) Ashiyanabanu Aashikhusen Bachumiya Shaikh
2) Sakkarbanu Mahemudmiya Shaikh
3) Parvinabanu Ibrahimbhai Shaikh
4) Samimbanu Mustumiya Shaikh
5) Zayadabanu Ibrahim Shaikh
6) Sayarabanu Abbasmiya Shaikh
7) Yunushusen Sherumiya Shaikh
8) Arifhusen Manubhai Shaikh
9) Sultanabanu Mahemudmiya Shaikh
10) Javedmiya Mustumiya Shaikh
11) Rasidabanu Jamalbhai Shaikh
12) Idrishbhai Akbarbhai Shaikh
13) Mehmudabibi Sherumiya Shaikh
14) Vahidabanu Nazirbhai Akbarbhai
15) Bismillabanu Bhikumiya Shaikh
16) Barubibi Babumiya Shaikh
17) Faridabanu Mahebubbhai Shaikh
18) Ruksanabanu Abbasmiya Shaikh
19) Mumtazbanu Maksubhusen Shaikh
20) Mumtazbanu Sherumiya Shaikh
21) Johrabanu Manubhai Shaikh
22) Husenabibi Hibzulmiya Shaikh
23) Rifakathusen Hijbulmiya Shaikh
24) Manubhai Husenbhai Shaikh
25) Bachumiya Nathumiya Shaikh
26) Sherumiya Rasulmiya Shaikh
27) Abbasmiya Kesarmiya Shaikh
28) Raziabanu Ibrahimmiya Shaikh
29) Abedabanu Manubhai Shaikh
30) Rafik Manubhai Shaikh
31) Firoz Mahemudhusen Shaikh
32) Irfanhusen Mahemudmiya Shaikh
33) Suhanabanu Safikmiya Shaikh

… … …

48. …[T]he prosecution has established beyond reasonable doubt that the alleged incident occurred on 01.03.2002 during 9:30 p.m. to 2:30 a.m. in Shaikh Mohalla of Sardarpura village, in which 33 persons died and 24 persons were injured and houses in Shaikh Mohalla were set on fire and three cabins at the entrance of Shaikh Mohalla were burnt and the main incident occurred in Mahemudmiya’s house and that there were about 55 to 60 persons inside Mahemudmiya’s house and by pouring petrol and kerosene and other inflammable items, the house of Mahemudmiya was burnt by the mob and the result is that 33 persons died and others were injured. Some of the deceased died due to suffocation and carbon particles in the trachea and one victim sustained injuries due to electrocution.

It is also proved by the prosecution that damage to the graveyard was also caused by the mob and one jeep bearing registration No. GJ17A8775, which was standing near the house of Bachumiya Imammiya, was burnt by the mob and one scooter bearing registration No. GAF4710, which was lying in front of the house of Shaikh Babubhai Mahmadbhai, was burnt. It is also proved by the prosecution that all the victims were shifted to Civil Hospital, Mehsana, where post-mortems of 32 persons were performed either in Civil Hospital, Mehsana, or in Civil Hospital, Ahmedabad. The prosecution also proves injury certificates of 24 persons.

It is also proved by the prosecution that there was sufficient light at the time of occurrence. It is also proved by the prosecution that firing was resorted to by the police to disperse the mob at about 9:30 p.m. when the first mob came. It is also proved by the prosecution that the mob came from two sides, one from the Sundarpura side and another from the Sardarpura side. It is also established by the prosecution that a meeting for peace was organised at the residence of Munsufkhan Yasinkhan Pathan. It is also proved by the prosecution that at about 2:30 a.m. SP Shri Gehlot, DySP Shri Jadeja, PI Shri KR Vaghela, PSIs Shri Rathod, Parmar and Gohel and other police officials reached the place of occurrence and rescue operations took place at about 2:30 a.m. and subsequently the victims were shifted to village Savala and other places as per their desire.

But the prosecution could not prove the meeting organised by Patel Narayanbhai Lallubhai, MLA, Unjha, at the Mahadev temple, Sardarpura, and Hareshbhai’s [Haresh Bhatt, Bajrang Dal leader, the then MLA from Godhra] meeting about halogen lights, about direct illegal wires, about distribution of kerosene and also about what Basirabibi was told in the shop about the eating of bhajia when she took gram flour, and about the key of the waterworks taken before the incident…

52. …[I]t is argued by Shri Dhruv that here, in the present case, there are no [other] eyewitnesses making claims of having witnessed the incident. They have not deposed before the court that out of the mob,… who set on fire the house of Mahemudmiya… If any of them had witnessed the incident, they would have certainly named particular persons. As so many persons have been named in the FIR and statements, who assaulted and set on fire the house of Mahemudmiya? Further, it is argued by him that the substantive offence of murder must be shown to have been committed by any particular accused and if there is no evidence on record of who set on fire the house of Mahemudmiya, the present accused cannot be convicted. Convicting the accused with the aid of Section 149, some overt act must be shown to have been committed by the accused for committing a substantive offence.

Further, it is submitted that all the witnesses, including the complainant, have materially improved their version and they have given absolutely different versions than what they gave before the investigating authority. Over and above, they have materially changed and improved upon their written affidavits produced before the Supreme Court of India and written applications addressed to the SIT. More particularly, in dealing with a communal riots matter where emotions were running high between the two groups, evidence of witnesses would require to be examined very cautiously. Evidence adduced by all the witnesses is full of material and important contradictions…

Further, it is submitted by Shri Dhruv that the defence submitted by the accused is much acceptable on the basis of the evidence adduced before the court. An accused is not required to prove his case beyond reasonable doubt, as it is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. As reasonable doubt about the complicity of the accused is shown on the basis of the prosecution evidence, the accused would be entitled for acquittal. In the present case, the accused have successfully shown that the house of Mahemudmiya which is alleged to have been set on fire… was attacked from the backside of the house by the mob of village Sundarpura and not by the mob of Sardarpura from where the present accused belong. All the accused have given plausible and possible explanations as to why they have been framed by the witnesses.

Further, it is argued by Shri Dhruv that witnesses have claimed that they have seen the accused from a very little distance. They identified certain accused from the mob. Also however, all the witnesses are silent about the fact as to who set on fire the house of Mahemudmiya and how the house was set on fire.

Further, it is argued by Shri Dhruv that looking to the position of the houses, it is impossible that anyone who was inside would ever survive. However, prosecution witnesses claim that certain injured witnesses were rescued from the house of Mahemudmiya and for this purpose, Shri Dhruv has drawn my attention towards the FIR in which it is mentioned that only three persons were rescued from the house of Mahemudmiya, who died on the way to the hospital. As per PW [prosecution witness] 56, Shaikh Ayubmiya Rasulmiya, PW 73, Faridabibi Aashikhusen Shaikh, PW 78, Shaikh Basirabibi Bachumiya, and PW 80, Shaikh Ruksanabanu Ibrahimmiya Shaikh, all of them have deposed before the court that they sustained injuries while they were inside the room.

Further, there is no evidence on record to suggest that the attack was predetermined or the act of setting on fire the house of Mahemudmiya was predetermined. There is evidence on record to show that Mahemudmiya’s house was targeted particularly because it contained more persons inside it. If a mob has predetermined to set on fire the persons of a particular community then they would not spare any witnesses found on their way.

Further, it is submitted by Shri Dhruv that assuming the accused shared a common object, to kill a person of a particular community, then the certain witnesses who were seen by the mob standing in the said mohalla, none of the witnesses were attacked by that mob, and therefore it is the say of Shri Dhruv that the mob referred to by the witnesses had not killed anyone or set on fire the house of Mahemudmiya. The witnesses who were found in the said mohalla, seen by the mob, were very soft targets… therefore it can never be said that the mob had any object even in commission to kill particular persons of that community. Further, it is submitted that the incident had not occurred in the manner as deposed by the witnesses. What is deposed by the witnesses in the court was not stated at the first available opportunity either to the police, to any of the members of any community or to the SIT formed after six years. It goes to suggest that probably the witnesses have not witnessed the incident and they have framed the accused.

53. So far as the contention regarding consistent improvements in the evidence of the witnesses who have supported the prosecution case is concerned, all these witnesses have been extensively cross-examined. All possible latitude was given to the learned advocates in the matter of cross-examination and no attempt was made to curtail the length of the same at any point of time.

Further, the whole arguments of the accused side in respect of the impossibility to see the mob is unrealistic; seeing or observing a mob is not the same thing as observing a single stationary object. In the present case, the mob is stated to consist of 1,000 to 1,500 persons. It is true that the correctness of this figure can be doubted. But there can be no dispute that a large number of persons were there in the mob. The area and space occupied by such a big mob would be considerable and it would be futile to say that the mob could be seen from any particular point only or that it could not be seen from another particular point. The position of a person in the mob can be very far from that of another in the same mob, as the mob was not standing but moving towards Mahemudmiya’s house. The evidence shows the presence of the mob at the place of occurrence during the period. The eyewitnesses were also present.

Under these circumstances, there is nothing to indicate that the claim of having seen some of the accused among the mob of rioters, as made by the eyewitnesses within their evidence, relates to any particular point of time. The evidence of eyewitnesses cannot be construed so as to mean that whosoever were observed by them as persons in the mob of rioters were so observed only when they were inside Mahemudmiya’s house or [that from] some other house in Shaikh Mohalla they did not see anyone. Thus the conclusion is therefore irresistible that there is nothing in the evidence which would indicate that it was not possible for the eyewitnesses to have seen or identified any persons in the mob of rioters. Evidence indicates that there was every possibility of the eyewitnesses being able to see the mob, at least some persons in the mob, during the time for which the mob was there.

So far as the arguments advanced by the accused side – that if the object of the mob was to kill the Muslims, why have they left the witnesses who were very much present in Shaikh Mohalla, no one had prevented the mob [from killing] them to achieve their object – is concerned: an unlawful assembly, though it does possess a common unlawful object, is not necessarily governed by any fixed or planned programme. The object is common and it is to be accomplished but the methods are left to the members concerned, to be decided on the basis of what would happen on the spot. It is evident that there was no specific object to kill any specific persons or any specific number of persons, setting on fire the cabins and houses in Shaikh Mohalla. Specially, the house of Mahemudmiya in Shaikh Mohalla was the easiest and most convenient way of causing damage to person and property, to create a more terrible impact or fear in the minds of the Muslim community. The house in Shaikh Mohalla was a dwelling house and members of the unlawful assembly were clearly aware that a number of persons were inside the house; in spite of that, the whole house was set on fire.

Considering the above, it cannot be said that the object of the unlawful assembly was not to take away the lives of any of the persons. [So far as] the arguments on behalf of the accused that if the object of the mob was to kill the Muslims, how have they spared the witnesses is concerned, it is not that any individual member of the assembly would instantly kill any Muslim as soon as a Muslim would come in contact with him. It is only the collective action of the assembly, if supported by numerous persons then only he would be instigated to commit such an act. When an individual is part of a mob, he loses his identity and takes on the identity of the mob; then any person, however mild or aggressive he may be, does what the mob does. It is always seen in actions by mobs: an individual comes up with the strongest possible expression on such occasions, while in a mob of rioters.

Further, change in the composition of the assembly would not make any difference in the penal liability to be fastened on an individual accused. For fastening such liability on him, it is to be shown that he was a member of unlawful assembly at the time of committing an offence. Thus assuming there are a number of changes in the composition, even then it is to be treated as a single unlawful assembly by reason of the continuity of its activities and identity of the object and the accused is liable for guilt for offence if he was present in the unlawful assembly at the time of incident. The moment a member disassociates from the membership of unlawful assembly, his responsibility or liability for the acts committed by the unlawful assembly thereafter comes to an end. Here the members of unlawful assembly have committed capital offences. The act of setting on fire the houses in Shaikh Mohalla, specially Mahemudmiya’s house, is indicative of an intention or at least the knowledge necessary to constitute the offence of murder in circumstances that [led to the] death of 33 persons and 24 injured on account of the fire so set.

By keeping in mind the ratio laid down in all the citations, cited on behalf of both sides, when we consider the facts of the present case, accused as well as witnesses are residents of the same village. They are known to each other. As discussed earlier, there was sufficient light at the time of occurrence so that witnesses could see the mob. Under the above circumstances, if no identification parade of the accused is carried out, it becomes of no importance.

54. Whether accused persons were members of unlawful assembly is required to be established on the basis of identification of the accused also. The main challenge from the accused side is that it was not possible for the witnesses to see the mob of rioters and it is argued by them that no identification parade of accused persons has been made during investigation. [So far as] the fundamental and basic question in respect of fixation of identity of the accused is concerned, the actual evidence regarding identification is that which is given by a witness in the court. If that evidence is acceptable, the question whether the identity of the accused had been satisfactorily established at the investigation stage would be immaterial. However, it may be relevant for judging the reliability of the identification made in the court. Identity satisfactorily established during the investigation stage in some cases serves as corroboration to the identification in the court but it would not be relevant at all.

The identity during trial is to be established by proper evidence. If the victim or witness names certain persons as accused during the investigation, confirmation about the identity of the accused is necessary for arresting purposes and the IO has to ascertain the identity of the accused before sending him for trial. Once the case comes to trial, the identity of the accused is required to be established by legally admissible evidence…

Here, in the present case, the incident lasted for a long period, more than one hour. There was sufficient opportunity for the witnesses to see the offenders, more particularly in circumstances when the mob was from the same locality. Duration of incident, manner and opportunity to observe the incident is required to be considered while appreciating the evidence on identification; there cannot be a rejection of evidence on the ground that they were not able to see the mob. There was every possibility for the witnesses to see the persons in the mob, as the mob was for a long period in the mohalla.

Once the accused are well known to the witnesses, there is no necessity for a test identification parade. By keeping in mind the settled proposition of law in this regard, when we consider the present case, the substantive evidence as regards identification would only be the identification of an accused made by a witness in the court. A test identification parade is necessary where offenders would not be known to the witnesses before the incident. Thus failure to hold an identity parade may disprove facts only in cases where the offender would not be known to the witnesses. The rule is based on logic, common sense and prudence. Here, in the present case, the accused have been identified by them, as they were known to them previously. Here some of the witnesses have identified the accused by face, as those are not known to them by name. Here no identification parade was demanded by the accused during investigation.

During the trial it has come out that the accused belong to the same village and same area. It is not in dispute that the accused belong to Sardarpura… Then in that case, nothing more is required to accept statements of the witnesses that they know them unless it is shown positively that witnesses are lying on record. Here there is a positive claim of the witnesses that they and the accused belong to the same area. There is no reason to disbelieve the say of witnesses when they say that the accused identified by them are known to them since before.

Now the question which requires to be appreciated is whether evidence of identification should be disbelieved on the ground that either the names or the details of particulars of the accused identified by the witnesses were not mentioned by them to the police… [Whether] the effect of not naming the accused or not giving details or information to the police would result in rejection of evidence of identification made by such witnesses later in the court is a matter depending on a number of facts. The actual evidence regarding identification is that which is given by a witness in the court. If that evidence is acceptable, the question whether the identity of the accused had been satisfactorily established at the investigation stage would be immaterial save and except in so far as it may be relevant for judging the reliability of the identification made in the court.

If the identity of the accused is satisfactorily established during the investigation stage, it may in some cases serve as corroboration to the identification in court. But by itself it would not be relevant at all. The confirmation of the identity of the culprits by the IO at the time of the arrest would undoubtedly be necessary but the IO cannot be restricted to have such confirmation of identity from a particular case or in a particular manner. His confirmation of identity is for his own satisfaction but not for the satisfaction of the court during the trial. His satisfaction about the identity would be relevant for the purpose of arrest and till that stage. The identity during the trial is to be established by proper evidence.

If the victims or the witnesses name a certain person or persons as accused, undoubtedly the IO while arresting them is required to confirm their identity as the same persons against whom allegations have been levelled. However, this satisfaction is to be reached by the IO. He can arrive at it by any mode which he thinks satisfactory. This is clear from the fact that even where the names are not given, or even where the culprit is stated to be unknown to the victims, the IO has to ascertain the identity of an accused as the culprit before sending him for trial. Obviously, in such cases, confirmation of identity cannot be done from the victims. The source on which his belief would be based has nothing to do with the admissibility, as a piece of evidence, of that source. The IO may reach the requisite satisfaction from a source other than the victims and the witnesses even where they have named the offenders.

[So far as] the contention of impossibility of the eyewitnesses having seen the mob or some persons in the mob, as advanced, is concerned, the mob was of 1,000 to 1,500. It is proved that stones were thrown and kerosene and petrol were poured. In these circumstances, it would be normal behaviour for witnesses to see what was happening when the stones were pelted and slogans were being [shouted] and fire was being set. At any rate, the common reaction of a human being would be to try to ascertain from where, how serious and of what nature the danger is. When the mob collected, [shouting] slogans, it would be quite natural for the witnesses to first try to see what was happening and in that process obviously to see who were the persons forming the mob. It is only after knowing what they were doing that the witnesses would know to what extent they were in danger.

Prior acquaintance may not be inferred from the fact that the accused and witnesses are residents of the same locality or nearby areas. Here is a specific case where witnesses and accused belong to the same village, which strengthens the claim of witnesses.

It is not in dispute that during the period of the present incident a number of cases of serious offences were being registered and there was a serious law and order problem which the police was facing. It was not possible to make detailed inquiries of the witnesses and try to elicit detailed information from them. Further, considering the mental and physical condition of the injured witnesses, it was not possible to accept that they will give details of the incident. It was not possible to maintain an accurate record of what the witnesses said. The authenticity and accuracy of the statements recorded by the IO are required to be considered carefully. The alleged discrepancies, contradictions, omissions, in the appreciation are required to be considered by keeping the above evidence in mind. Most of the contradictions and omissions which are brought on record are insignificant and immaterial.

The only significant and material omission would be to state the names of certain accused persons as being present in the mob in case of those witnesses who claim to have known them from before. Contradictions in the statements of concerned eyewitnesses as compared with the statements recorded by the IO cannot be allowed to affect the credibility of those witnesses. Further, not much importance can be given to the so-called contradictions and omissions, given the circumstances in which statements were recorded. There cannot be an inflexible rule that if a witness did not name an accused before the police, his evidence identifying the accused for the first time in the court cannot be relied upon. Failure to name the accused in the statements before the police though known would not result in drawing an adverse inference against the prosecution. There may be several reasons for witnesses not naming the accused or stating that the accused was known to them, and if the reasons are found acceptable, the evidence of the witnesses cannot be doubted only due to such failure. Such omissions on the part of witnesses would only require deeper and closer scrutiny of the evidence and does not warrant its outright rejection.

Further, [so far as] the effects of the victim not naming the accused before the police though previously known to him is concerned, here, in the present case, victims have suffered brutal mental agony and in these circumstances and that too that the accused and witnesses are residing in the same or a nearby locality, would certainly prevent the witnesses from naming the accused before the police. There was a tense atmosphere. The victims were under tremendous [tension]. In that circumstance, if the witnesses have not named the accused before the police though known to them, that would not be sufficient to discard their testimony. The basic supposition about the behaviour or reaction or perception of the witnesses regarding the incident will be wrongly presumed if we expect that they should have mentioned this specifically in spite of the situation prevailing at that time. We have to give a thought to how a witness will express what had happened.

The attack was indeed by a Hindu mob with no particular enmity towards any particular victim. The actions of individual accused were only a part of the actions of the mob and naturally were premised as actions of the mob by the victims and witnesses. In such circumstances, the history as given in the medical papers is proper. Whether anybody from the mob was known to the witnesses was a matter which could be stated by the witnesses only on specific questions to them. In the light of evidence as to the condition of the injured, tense atmosphere, heavy burden on the police, it is impossible to hold that any attempts to elicit this specific information against the offenders were made or injured witnesses were in a position at the material point of time to give such evidence. In the situation that was prevailing at the material time, it was impossible for the IO to coolly and calmly elicit such details from the victims who were under such [tension] and injured.

Therefore the evidence of eyewitnesses cannot be discredited on the ground that no identification test parade was done or the accused were not identified by the witnesses before the police. Here, in the present case, it is not claimed by the accused that they are not known to the witnesses. They have not demanded a test identification parade during investigation, which was not held. The accused were identified by the witnesses in the court during the trial…


Eye Witness Accounts Reliable

55. I have no hesitation to conclude that the evidence of eyewitnesses regarding identification cannot be discredited on the ground that they had not named or not given descriptions of the accused identified by them to the police though they were previously known. There is nothing contradictory, incredible, improbable or inconsistent in their evidence. Further, considering the whole evidence of the witnesses, all the witnesses have avoided attributing false overt acts to the accused identified by them, which would have been quite easy for them. There are a number of incidents in the evidence of these witnesses which suggest that they could have implicated more accused than identified by them or attributed more serious acts to the accused identified by them, which has not been done.

No Tutoring by Teesta Setalvad, CJP

56. It is submitted on behalf of the accused that eyewitnesses are tutored by Smt Teesta Setalvad. The interest of Teesta Setalvad and her organisation in the present case is obvious. The witnesses have specifically denied that Teesta Setalvad has told them as to what evidence was to be given in a case. Considering the evidence and facts in this regard, when we consider this fact, mere discussion about the case would not necessarily indicate tutoring. It is not an accepted proposition that the witnesses are never to be contacted by anyone or spoken to about the matter regarding which they are to depose. A number of things can be told to the witnesses, such as not to be nervous, carefully listen to the question put to them, state the facts before the court without fear, therefore it does not appear objectionable, morally or legally.

Tutoring a witness is quite different from guiding him as to his behaviour. In the present case, the injured witnesses were in such a state of mind that without the active support of someone, they might not have come before the court to give evidence at all. The encouragement and the advice, if provided by Citizens for Peace and Justice, cannot be considered as tutoring and simply because of that, we cannot infer that the witnesses are tutored. From the matter, it transpires that Citizens for Justice and Peace have made allegations before the Supreme Court of India against the state authorities but on that strength, it cannot be said that NGOs have worked with bad motives. If they had fought for truth, what was believed by them as truth, it does not mean that they have tutored the witnesses to falsely identify the accused in the court.

57. In this regard, when we consider the evidence, witnesses could be tutored only by a person who knew the facts. It is difficult for a person who was not present at the time of occurrence to tutor an occurrence witness and if at all this can be done, it would be based on the records of the case, which does not seen to have happened in the present case. Furthermore, the happenings and the manner in which the present case took place is also not much in dispute so the aspect of tutoring would be confined to identification only. It is not easy to tutor one to identify another, as victims and accused are previously known to each other but not known to the tutoring persons. Tutoring of this type would require the persons tutoring, the concerned accused and the concerned witness to be together for a reasonable period or one or more occasion. Further, tutoring in such cases would be in consonance with police records or the prosecution case, which does not appear to have happened in this case.

Further, it is also important to consider that before identification in the court by the witnesses, the accused were asked to sit in the court as per their own choice; they were not forced to sit by serial numbers given to them in the charge sheet or any other fixed order and their names were never loudly called out in the court in the presence of witnesses. The identifications of the accused have taken place under the observation of the court. So the court can view the actions/reactions of the witnesses. All precautions were taken by the court while identifications of the accused were carried out in the courtroom. Further, precautions were also taken by the court whether witnesses could see the persons sitting in the courtroom. Similarly, the accused were given liberty to sit in the court in any manner, anywhere.

58. So far as irregularities, as pointed out, committed during the course of investigation are concerned, from the evidence on record, it appears that the IO, Shri KR Vaghela, was making sufficient efforts for arrest of the accused. Due to non-support from the locality, he could not arrest all the accused immediately and it took some time. Even if some of the accused were arrested subsequently, by Shri RD Baranda, the then police inspector, and after investigation, by the SIT’s investigating officer Shri GV Barot, it does not amount fatal to the case, since all the accused are not named in the FIR or in the statements of witnesses. Thus there is no deliberate defective investigation, no lacuna left for falsely implicating the accused.

The allegations of manipulation of the FIR have no substance; there is no evidence suggesting the manipulation of the records with intent to implicate the accused more and more. No manipulation has been done with regard to the articles sent for examination to the FSL for connecting the articles with the offence in question. No doubt there are some irregularities and lapses in investigation but those are not such which could prejudice the accused. Thus the case stands on the evidence of identification of the accused by witnesses and no proper efforts to collect any other evidence were made during the investigation. The claim of the accused side, that this was done to implicate the accused falsely, is not acceptable. It is well settled that if there are any irregularities in investigation and if the accused is not prejudiced due to such irregularities, it will not be fatal to the case.

Here the accused are not claiming that they are not known to the witnesses and also have not demanded an identification parade, which was not held in the present case, and witnesses have identified the accused in the court; no such steps were taken by the accused in the present case. Thus there is nothing in the case to indicate defective investigation due to which the accused are prejudiced. Thus there is nothing wrong and improper in the identification evidence.

59. In criminal trials, motive is one of the factors but in a case of murder and of direct evidence, motive is of no importance if the case is otherwise proved from other cogent and reliable evidence. While in a case of circumstantial evidence, motive plays an important role. However, when we consider the evidence in the present case, the motive behind the present occurrence is to take revenge on the Muslim community, as kar sevaks were burnt alive in the Sabarmati train at Godhra and this motive is proved from the evidence of all the witnesses and also it is not challenged.

60. Unlawful assembly has to be determined with respect to each such assembly that was formed during the period of occurrence. Unlawful assembly as defined in the Indian Penal Code is: an assembly of five or more persons actuated by and entertaining one or more of the common objects specified by the five clauses of [Section 141]…

In the present case, it cannot be ignored that communal riots started as a reaction caused by the belief that kar sevaks had been burnt to death by Muslims. The riots are said to be retaliatory action. Therefore there is nothing surprising if the method of burning is adopted for killing people. To burn anyone to death is an easy form of murder. It does not need a weapon and there is no evidence left behind; it is the easiest way to inflict pain and there is no physical contact between the assailant and victim. The various acts such as shouting slogans and pelting stones, burning cabins, houses, were not committed at the whim of individual members composing the unlawful assembly.

It is evidence on record that setting on fire the cabins and houses in Shaikh Mohalla, causing burns to the injured as well as to the deceased, clearly indicates the common object of the said unlawful assembly. Further, entering Shaikh Mohalla by the mob itself indicates the common object of the mob therefore; there was no reason for any of the persons from the mob to go to Shaikh Mohalla at such a late hour. In Shaikh Mohalla, only the witnesses were residing. It was not a public place or public way for passing and repassing of persons. Persons can be expected in Shaikh Mohalla for a particular purpose only.

It is not the say of any of the accused that they had been there for any other purpose. Further, there was no previous enmity between the victims and accused; on the contrary, witnesses were working either in the fields of the accused or in brick kilns or some other places of the accused: why the witnesses will try to falsely implicate the persons who were providing sources of income to them, leaving the actual culprits? Thus the common object of unlawful assembly is clearly established by the prosecution.

… … …

144. It is an admitted fact that the prescribed punishment for the offences for which the convicted accused persons have been held guilty is either the death penalty or imprisonment for life. Since this is a case of mass murder, it was thought fit to give sufficient opportunity for hearing on the point of sentence.

145. This court has heard each accused in person. Most of the accused have said that they are innocent and they have been falsely implicated in the offence. It is the say of most of the accused that either they are very young persons or they are very old, aged persons, that except them, there is no earning person in their family; they have little children and considering all these things, they have prayed for mercy.

146. I have heard learned advocate Shri DM Dhruv, appearing on behalf of the accused. Mr Dhruv has argued that this court has convicted all the accused persons under Section 302 read with [r/w] Section 149 of the IPC, which means the court has not found any evidence against any of the accused for committing any particular act and therefore, instead of being held guilty individually under Section 302, the court has held guilty the accused under Section 302 r/w Section 149 and when the court has held that all the accused persons are guilty of committing offences punishable under various provisions of the IPC, being a member of unlawful assembly, therefore this is not the case in which the court has found that any particular accused has committed any particular act and therefore, in such a situation, the court should not have to impose capital punishment and should be lenient and should have to impose minimum punishment.

Mr Dhruv has further argued that this is not the rarest of rare cases in which accused may be imposed capital punishment. It is further argued that there is no case in our country in which when the accused is held guilty for the offence punishable under Section 302 r/w Section 149, capital punishment is imposed. Mr Dhruv has further argued that all the accused are villagers, they are farmers, and most of the accused persons are illiterate and therefore they should be imposed minimum sentence.

147. I have also heard the arguments advanced by learned advocate Shri BC Barot, appearing on behalf of the accused. Shri Barot has argued that when the accused are held guilty for various offences punishable under the penal provisions of the IPC wherein minimum punishment is imprisonment for life and maximum punishment is capital punishment, while awarding the sentence the court has to consider the circumstances in which said incident took place and this is not the rarest of rare cases in which capital punishment be imposed. In support of his say, he has cited the case of Dwijendra Shrishbhai Manek vs State of Gujarat, reported in 2006(1) GLR 676, wherein it is held by the Gujarat high court that while hearing the accused on the question of sentence, the judge must elicit information from the accused and inflict a just punishment keeping in mind age, family background, antecedents, etc.

Shri Barot has cited another case, State of Gujarat vs Raghu @ Raghavbhai Vashrambhai & Ors, reported in 2003 CRLR (GUJ) 381, wherein it is held by the high court of Gujarat that the provisions of Section 235(2) of the Criminal Procedure Code has added a much needed dimension in Indian criminal jurisprudence. The object and design of such provisions is to give a fresh opportunity to the convicted person to bring to the notice of the concerned court such circumstances as may help the court in awarding appropriate sentence, having regard to the personal, financial, social and other circumstances of the case.

It is further held by the high court that hearing on the question of quantum of punishment is not an empty formality. It is a statutory incumbency upon the court to provide an opportunity of hearing to the accused on the question of sentence unless the court proposes to release the accused on good conduct or after admonition as provided under Section 360 of the CrPC. It is further held by the high court that the right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and reasons to be heard on, the question and considerations of sentence bearing upon the sentencing process: The social compulsions, the pressure of poverty, the retroactive needs, the instinct for extralegal remedy due to a sense of being wronged, the lack of means to be educated and difficulties of honest living, parentage, heredity, personal and social environments. Shri Barot has also referred to the object of criminal jurisprudence for the punishment. Lastly, Shri Barot has argued to impose minimum punishment on the accused who are held guilty by this court.

148. On the other hand, special public prosecutor Shri SC Shah has argued that all the accused were members of unlawful assembly and being members of unlawful assembly, they have committed such a heinous act in which 33 humans have lost their lives. Shri Shah has argued that all the victims were innocent, they were not in a position to protect themselves and therefore they had taken shelter in one room, in which the main incident had taken place and the present accused persons have, by arming themselves with deadly weapons, poured inflammable liquid on the house and set it on fire; and in such a situation, to prevent communal riots from taking place in our country, maximum punishment is required to be imposed.

Shri Shah has further argued that the court has held guilty all the 31 accused under Section 302 r/w Section 149 and thus it is the rarest of rare cases in which capital punishment may be imposed. In support of his say, Shri Shah has cited the case of Mahesh & etc vs State of Madhya Pradesh, reported in AIR 1987 Supreme Court 1346, wherein it is held by the Supreme Court of India that it will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. Shri Shah has also cited the case of Ranjeet Singh & Another vs State of Rajasthan, reported in AIR 1998 Supreme Court 672, wherein it is observed by the Supreme Court of India that the manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was predetermined and cold-blooded. It was absolutely devilish and dastardly. Innocent children were done to death with lethal weapons when they were fast asleep. The sentence of death awarded cannot therefore be said to be inappropriate.

Shri Shah has also cited the case of C. Muniappan & Ors vs State of Tamil Nadu, reported in (2010) 9 Supreme Court Cases 567, wherein it is observed by the Supreme Court of India that the death sentence can be given in rarest of rarest cases if the “collective conscience” of a community is so shocked that death penalty is the only alternative. The “rarest of rare cases” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of society; when the accused deliberately indulges in a planned crime without any provocation and meticulously executes it, the death sentence may be the most appropriate punishment. Referring to all the cited cases, Shri Shah has requested the court to impose capital punishment considering the nature of the crime and position of victims.

149. This court has given its thoughtful consideration on the arguments advanced by both sides and also considered the law laid down by the Supreme Court of India and high court of Gujarat as well as by the high court of Tamil Nadu. Though this indeed is one of the aspects of the matter, it cannot be ignored that the accused are being convicted by virtue of the provisions of Section 149 of the IPC. The exact role played by each accused in the entire incident is not specifically proved. Though there is no rule that the death sentence cannot be awarded where the conviction of an offence punishable under Section 302 of the IPC is recorded with the aid of Section 149 of the IPC, considering all the relevant aspects of the matter, I am of the opinion that the extreme penalty of death is not called for in this case.

150. It is established fact that much damage was caused to the properties. Much destruction of the property was done. As such, I think it proper to impose appropriate sentences of fine also, in addition to the substantive sentences. It would also be appropriate to award compensation to be paid to the victims, keeping in mind the provisions of Section 357 of the CrPC.

151. Taking into consideration all the relevant aspects of the matter, in my opinion, the following sentences will meet the ends of justice. In the result, the following order is passed.

 

ORDER

1. The accused persons named below are hereby sentenced under Section 235(2) of the Criminal Procedure Code to undergo the punishment, as mentioned hereunder, for the charges proved against them:

Sessions Case No. 275/2002

1) (S. No. 1) Patel Rameshbhai Kanjibhai, 23, Sardarpura
2) (S. No. 2) Patel Chaturbhai alias Bhurio Vitthalbhai, 28, Sardarpura
3) (S. No. 5) Patel Jayantibhai Mangalbhai, 21, Sardarpura
4) (S. No. 6) Patel Amratbhai Somabhai, 25, Sardarpura
5) (S. No. 11) Patel Jagabhai Davabhai, 55, Sardarpura
6) (S. No. 14) Patel Kacharabhai Tribhovandas, 55, Sardarpura
7) (S. No. 16) Patel Mangalbhai Mathurbhai, 65, Sardarpura
8) (S. No. 18) Patel Bhikhabhai Joitabhai, 50, Sardarpura
9) (S. No. 27) Patel Mathurbhai Ramabhai, 52, Sardarpura
10) (S. No. 28) Patel Sureshbhai Ranchhodbhai, 22, Sardarpura
11) (S. No. 30) Patel Tulsibhai Girdharbhai, 34, Sardarpura
12) (S. No. 31) Patel Ramanbhai Jivanbhai Vanabhai, 29, Sardarpura
13) (S. No. 32) Patel Rajeshbhai Karshanbhai, 22, Sardarpura
14) (S. No. 33) Patel Rameshbhai Kantibhai, 24, Sardarpura
15) (S. No. 34) Patel Madhabhai Vitthalbhai, 33, Sardarpura
16) (S. No. 35) Patel Sureshkumar Baldevbhai, 20, Sardarpura
17) (S. No. 37) Patel Vishnubhai Prahladbhai, 23, Sardarpura
18) (S. No. 38) Patel Rajendrakumar alias Rajesh Punjabhai Tribhovandas, 28, Sardarpura
19) (S. No. 40) Patel Prahladbhai Jagabhai, 23, Sardarpura
20) (S. No. 41) Patel Rameshbhai Ramabhai, 35, Sardarpura
21) (S. No. 42) Patel Parshottambhai alias Pashabhai Mohanbhai, 45, Sardarpura
22) (S. No. 43) Patel Ashvinbhai Jagabhai, 21, Sardarpura
23) (S. No. 44) Patel Ambalal Maganbhai Kapoor, 54, Sardarpura
24) (S. No. 46) Patel Rameshbhai Prabhabhai Gopalbhai, 36, Sardarpura
25) (S. No. 48) Patel Jayantibhai Ambalal, 43, Sardarpura
26) (S. No. 49) Patel Kanubhai Joitaram, 43, Sardarpura
27) (S. No. 50) Prajapati Ramanbhai Ganeshbhai, 51, Sardarpura
28) (S. No. 52) Patel Dahyabhai Kacharabhai, 36, Sardarpura
29) (S. No. 54) Patel Mathurbhai Trikamdas, 46, Sardarpura

Sessions Case No. 120/2008

30) (S. No. 7) Patel Dahyabhai Vanabhai, 51, Sardarpura

Sessions Case No. 120/2008

31) (S. No. 9) Patel Kalabhai Bhikhabhai, 37, Sardarpura

2. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 143 of the IPC and each of them is sentenced to suffer simple imprisonment for three months, and also to pay a fine of Rs 500 each, in default, to suffer simple imprisonment for 15 days.

3. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 147 of the IPC and each of them is sentenced to suffer simple imprisonment for one year, and also to pay a fine of Rs 1,000 each, in default, to suffer simple imprisonment for 15 days.

4. Accused Nos. 28, 32, 33, 34, 44, 52 of sessions case No. 275/2002 are convicted for the offence punishable under Section 144 and 148 of the IPC and each of them is sentenced to suffer simple imprisonment for two years, and also to pay a fine of Rs 2,000 each, in default, to suffer simple imprisonment for one month.

5. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 302 r/w Section 149 of the IPC and each of them is sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs 5,000 each, in default, to suffer simple imprisonment for six months.

6. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 307 r/w Section 149 of the IPC and each of them is sentenced to suffer rigorous imprisonment for 10 years, and also to pay a fine of Rs 5,000 each, in default, to suffer simple imprisonment for five months.

7. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 323 r/w Section 149 of the IPC and each of them is sentenced to suffer simple imprisonment for one year, and also to pay a fine of Rs 2,000 each, in default, to suffer simple imprisonment for one month.

8. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 324 r/w Section 149 of the IPC and each of them is sentenced to suffer simple imprisonment for one year, and also to pay a fine of Rs 2,000 each, in default, to suffer simple imprisonment for one month.

9. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 325 r/w Section 149 of the IPC and each of them is sentenced to suffer rigorous imprisonment for three years, and also to pay a fine of Rs 2,000 each, in default, to suffer simple imprisonment for one month.

10. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 435 r/w Section 149 and Section 436 r/w Section 149 of the IPC and each of them is sentenced to suffer rigorous imprisonment for 10 years, and also to pay a fine of Rs 3,000 each, in default, to suffer simple imprisonment for five months.

11. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 447 r/w Section 149 of the IPC and each of them is sentenced to suffer simple imprisonment for one month, and also to pay a fine of Rs 500 each, in default, to suffer simple imprisonment for 15 days.

12. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 448 r/w Section 149 of the IPC and each of them is sentenced to suffer simple imprisonment for six months, and also to pay a fine of Rs 500 each, in default, to suffer simple imprisonment for 15 days.

13. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 336 r/w Section 149 of the IPC and each of them is sentenced to suffer simple imprisonment for one month, and also to pay a fine of Rs 250 each, in default, to suffer simple imprisonment for 15 days.

14. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 337 r/w Section 149 of the IPC and each of them is sentenced to suffer simple imprisonment for three months, and also to pay a fine of Rs 250 each, in default, to suffer simple imprisonment for 10 days.

15. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 295A of the IPC and each of them is sentenced to suffer simple imprisonment for two years, and also to pay a fine of Rs 500 each, in default, to suffer simple imprisonment for one month.

16. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 153A of the IPC and each of them is sentenced to suffer simple imprisonment for three years, and also to pay a fine of Rs 500 each, in default, to suffer simple imprisonment for one month.

17. All the accused whose names are mentioned in Para 1 of this order are convicted for the offence punishable under Section 297 of the IPC and each of them is sentenced to suffer simple imprisonment for one year, and also to pay a fine of Rs 500 each, in default, to suffer simple imprisonment for one month.

18. No separate order regarding punishment is passed for the offence punishable under Section 135 of the Bombay Police Act.

19. All the accused whose names are mentioned in Para 1 of this order are hereby ordered to deposit the amount of Rs 50,000 each in this court.

20. On deposit of said amount by all the accused, it will be equally paid to the complainant and other victims of this incident as compensation under Section 357(1)(c) of the Code of Criminal Procedure.

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

22. The above-named convicted accused persons shall be entitled to get benefit of set-off, of the period of their respective detention as an undertrial prisoner, during the investigation and trial, as provided in Section 428 of the Code of Criminal Procedure…

(Kum. SC Srivastava)

Sessions Judge,

Designated Court (Mehsana)

November 9, 2011

 


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