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: 09.11.201 1
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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