1

IN THE COURT OF SESSIONS FOR GREATER BOMBAY

AT MAZGAON

SESSIONS CASE NO. 315 OF 2004

The State of Gujarat ]

[at the instance of PI D.C.B. ]
Police Station, Vadodara ]
City, Gujarat State. [C.R. ]
No.82/2002 of Panigate ]
Police Station] ] Complainant.

Versus

1. Rajubhai Dhamirbhai Baria. ]

Hanuman Tekdi, Daboi Road, ]
Vadodara, State-Gujarat. ]

2. Mahendra @ Langdo ]
Vishwasrao Jadhav. ]
Hanuman Tekdi, Daboi Road, ]
Behind Naikpura Woodland, ]
Vadodara, State-Gujarat. ]

3. Haresh @ Tino Virendragir ]

Gosai. ]
Hanuman Tekdi, Daboi Road, ]
Vadodara, State-Gujarat. ]

4] Pankaj Virendragir Gosai. ]

Hanuman Tekdi, Daboi Road, ]
Vadodara, State-Gujarat. ]

5] Yogesh @ Painter ]
Laxmansinh Varma. ]
Behind Vihar Theatre, ]
Near Jain Temple, ]
Pratapnagar, Vadodara, ]
State-Gujarat. ]

6] Pratapsinh Ravjibhai ]
Chauhan. ].. [Orig. A/10]
Hanuman Tekdi, Daboi Road ]
Vadodara, State-Gujarat. ]

7] Sanjay @ Bhopo Ratilal ]

Thakkar. ].. [Orig.A/11]
 2

Mahesh Mangal Society, ]

Waghodia Road, Vadodara, ]
State-Gujarat. ]

8] Bahadursinh @ Jitu ]
Chandrasinh Chauhan. ].. [Orig. A/12]
Behind Bhabha Plan, ]
C. Ramnagar Road, ]
Sainathnagar, Mohd. Talao ]
Vadodara, State-Gujarat. ]

9] Yasin Alibhai Khokhar. ].. [Orig. A/13]

Hanuman Tekdi, Daboi Road ]
Vadodara, ]
State-Gujarat. ]

10]Jagdish Chunilal Rajput. ].. [Orig. A/14]

Ranmukteshwar Road, ]
Tejab Mill Chawl, ]
Pratap Nagar, ]
Opp. Bhataji Temple, ]
Vadodara, State-Gujarat. ]

11]Dinesh Phulchand Rajbhar. ].. [Orig. A/15]

Daboi Road, Ansuya Nagar, ]
Opp. Bhataji Temple, ]
Vadodara, State-Gujarat. ]

12]Shanabhai Chimanbhai Baria.].. [Orig. A/16]

Soma Talao, Daboi Road, ]
Zopadpatti, Vadodara, ]
State-Gujarat. ]

13]Tulsi Bhikabai Tadvi. ].. [Orig. A/17]

Hanuman Tekdi, Daboi Road, ]
Vadodara, ]
State-Gujarat. ]

14]Shailesh Anupbhai Tadvi. ].. [Orig. A/18]

Hanuman Tekdi, Daboi Road, ]
Vadodara, State-Gujarat. ]
 3

15]Kamlesh Bhikabhai Tadvi. ].. [Orig. A/19]

Hanuman Tekdi, Daboi Road, ]
Pratap Nagar Road, ]
Vadodara, State-Gujarat. ]

16]Suresh @ Lalo Devjibhai ]

Vasava. ].. [Orig. A/20]
Daboi Road, Ansuya Nagar ]
Pratap Nagar, Vadodara, ]
State-Gujarat. ]

17]Ravi Rajaram Chauhan. ].. [Orig. A/21]

Yamuna Mill, Juna Jakat ]
Naka, Daboi Road, ]
Anusaya Nagar, ]
Vadodara, State-Gujarat. ]

CORAM :- HIS HONOUR THE ADDL.

SESSIONS JUDGE SHRI [Link].

DATED :- 24/02/2006.

[Link] Rao, Special Public Prosecutor for the State

of Gujarat with Advocate Shri [Link] and Advocate
Shri [Link], to assist her.

Shri Adhik Shirodkar, Senior Advocate, with Shri

[Link], Advocates for accused Nos. 1 to 5, 10,
11 and 12.

Shri Mangesh Pawar, Advocate for accused Nos.16, 17, 18,

19 and 21.

Shri [Link], Advocate for accused Nos.13, 14, 15 and

20.

O R A L J U D G M E N T

1. The above named accused were tried by the Additional

Sessions Judge, First Fast Track Court,

 4

Vadodara, State of Gujarat, in Sessions Case No.248 of

2002, and were acquitted. This is a retrial of the said

case.

2. The retrial has been held pursuant to the directions

given by the Supreme Court of India, in the circumstances

mentioned below.

3. The prosecution launched against the accused is on

the basis of a report under Section 173 (2) (i) of the

Code of Criminal Procedure [hereinafter referred to as

'the Code' for the sake of brevity], submitted by the

Inspector of Police, D.C.B. Police Station, Vadodara

City, State of Gujarat, on the allegation that they have

committed offences punishable under sections 143, 147,

148, 149 of the Indian Penal Code read with sections 452,

302, 307, 323, 324, 326, 337, 342, 395, 435, 436, 427,

504, 506, 201 and 188 of the Indian Penal Code, as also

an offence punishable under section 135 of the Bombay

Police Act.

4. The incident giving rise to the aforesaid offences

is a fallout of the communal riots that took

place in Vadodara city – and elsewhere also in the State

of Gujarat – pursuant to the incident of the burning

 5

of bogie of Sabarmati Express on 27/02/2002, carrying

'kaar-sevaks' returning from Ayodhya. The belief that

Muslims had burnt the bogie carrying 'kaar-sevaks', was

spread in Vadodara city through various sources and

mediums. This gave rise to excitement and feelings of

anger against the Muslims, resulting in the atmosphere in

the Vadodara city becoming tense and communally charged.

5. The prosecution case, in a nutshell, is that during

the period between about 8.30 p.m. on 01/03/2002 and

11.00 a.m. on 02/03/2002, residential building and bakery

belonging to a Muslim family, was set on fire and burnt

down by members of an unlawful assembly, the object of

which, was to attack and kill the Muslims and to snatch,

or damage, or destroy their properties. In the fire set

to the said building, a number of persons were burnt to

death. Those who survived till the morning, were made to

get down from the terrace of the said building, after

which they were attacked with deadly weapons causing

serious injuries to them. Some of them succumbed to

those injuries. The movable property such as vehicles,

etc., had also been set on fire by the mob of rioters.

Articles such as ghee and maida, etc., were

robbed and looted. The accused persons were members of

the said unlawful assembly, in prosecution of the common

object of which, the aforesaid offences were committed by

 6

its members. The accused were, therefore, the offenders.

In the course of investigation, they were arrested and

prosecuted, as aforesaid.

6. During the original trial, a number of witnesses

- including the first informant [Link] Shaikh and

other victims - turned hostile and as aforesaid, the

case resulted in acquittal of all the accused. After the

acquittal, a grievance was made by the victims that they

had been threatened not to speak the truth and not to

implicate the accused persons; and that due to such

threats, they had been forced to speak lies in the Court.

The first informant – [Link] Shaikh – appeared before

the National Human Rights Commission, stating that she

had been threatened not to depose against the accused

persons. A number of allegations, including the

allegation of improper conduct of the trial, were made.

The role played by the investigating agency was

criticized. When the matter was taken to the Supreme

Court of India by some of the victims and one N.G.O. -

Citizens for Justice and Peace -, the Supreme Court of

India, by holding that there was ample evidence on

record, demonstrating the sub-version of justice

delivery system; and that no congenial or conducive

atmosphere was till then prevailing, directed retrial to

be done by the Court under the jurisdiction of the Bombay

 7

High Court. The Supreme Court requested the Chief

Justice of the Bombay High Court to fix up a Court of

competent jurisdiction to hold the retrial. Pursuant to

the said order and direction of the Supreme Court of

India, the present retrial is being held by this Court.

7. It would be proper to mention here the prosecution

case, by giving necessary details covering the

background, the incident leading upto the registration of

the F.I.R., the arrests of the accused persons, the

investigation carried out thereafter, as can be gathered

from the police report, and the narration of the

prosecution witnesses unfolded during the present trial.

T H E B A C K G R O U N D

8. On 27/02/2002, at about 8.00 O'Clock, a mob

belonging to Muslim community set fire to Bogie No.6 of

Sabarmati Express train, which had been reserved by

'kaar-sevaks' who were returning from Ayodhya to Gujarat.

The said bogie was set on fire near Godhra Railway

Station. About 59 persons died and 48 were seriously

injured, as a result of the said fire. The news that the

Muslims had burnt the kaar-sevakas, was widely spread

through media, which resulted in feeling of anger and

revenge. The Vishva Hindu Parishad gave a call for bandh

 8

on 28/02/2002. Following the news that the Muslims had

burnt bogie of the Sabarmati Express Train resulting in

deaths of several kaar-sevaks, there was a spate of

communal riots throughout the State of Gujarat, including

the city of Vadodara. The Commissioner of Police,

Vadodara City, passed an order under section 144 of the

Code imposing indefinite curfew in the entire city,

except the area under Jawahar Nagar Police Station. A

notification [Ex.253] issued under the powers conferred

by Section 37(1) of the Bombay Police Act, prohibiting,

inter-alia, the carrying of weapons, inflammable

articles, etc. was already in force upto 2400 hours on

01/03/2002; and on 28/02/2002, a similar notification

[Ex.254], under the same provisions of law, was issued

for a period from 0000 hours on 02/03/2002 to 2400 hours

on 16/03/2002, by the Commissioner of Police, Vadodara

City.

9. On 28/02/2002, incidents of communal riots started

taking place in Vadodara city. A number of such

incidents took place also within the jurisdiction of

Panigate Police Station, Vadodara. Precautions were

being taken by the police and police patrolling was going

on in the area of Panigate Police Station since

27/02/2002. However, in spite of the same, there were

several incidents of communal riots on 28/02/2002.

 9

Repeatedly, messages and reports were being received by

the Panigate Police Station from the Police Control Room

regarding incidents of attack on the persons and

properties of the Muslims, by mob of Hindu persons. PI

Shri [Link] [P.W.72] was the Inspector in-charge of

the Panigate Police Station, at the material time.

10. There is a locality known as 'Hanuman Tekdi

locality' within the jurisdiction of Panigate Police

Station. In the said locality, there was a building

consisting of a bakery known as 'Best Bakery' and

residential premises having ground plus first floor and

terrace above the first floor. The building was

belonging to one Habibulla Shaikh and was being used as

their residence by the owner of the Best Bakery and his

family. There were rooms on the first floor of the

building. Wood required for the bakery used to be stored

on the ground floor of the building.

11. Habibulla had died about a month prior to the

incident that took place on 01/03/2002 and 02/03/2002.

His wife Saherunnisa [P.W.40], his two sons – Nafitulla

[P.W.31] and Nasibulla [P.W.30] -, his three daughters -

Sahera [P.W.35], Zahira [P.W.41], Sabira- and Yasmin

[P.W.29] - wife of Nafitulla - were residing in the said

building - i.e. the 'Best Bakery building' - at the

 10

material time. A number of servants were employed in the

Best Bakery. They also used to reside in the same

building and they used to sleep on the terrace of the

said building. Among the servants, there were Taufel

Siddiqui [P.W.26], Raees Khan Nankau Khan [P.W.27],

Shehzad Khan Pathan [P.W.28], Sailun Hasan Khan Pathan

[P.W.32], one Prakash, one Baliram and one Rajesh.

After the death of Habibulla, one Kausarali - brother of

Saherunnisa - had come to reside in the Best Bakery

building in order to help the family in running the

bakery. One Nasru, though not employed in the 'Best

Bakery', also used to reside in the said building.

12. By the side of the Best Bakery building, there was a

house of one Aslam Shaikh [P.W.42] who, at the material

time, was residing there with his brothers Ashraf

[P.W.33] and Arshad alias 'Lulla', his wife Shabnam,

daughters Sipli and Babli. In front of the Best

Bakery building, there was a godown/wakhar of one Lal

Mohammed Shaikh [P.W.36].

T H E I N C I D E N T

13. On 01/03/2002, at about 19.30 hours, a Hindu mob of

 11

about 100 to 150 people assembled and formed an unlawful

assembly with the object of taking revenge of the Godhra

incident by causing damage and loss to the properties and

lives of Muslims. The mob assembled near Shivnagar

Sewage Pumping Station, Gajarawadi, violating the curfew

order, the order prohibiting and carrying of arms and

weapons, and the order prohibiting assembly of more than

4 persons. The mob was armed with deadly weapons and was

carrying inflammable liquid. The mob was giving slogans

against the Muslims. The mob went to Shivnagar,

ransacked and looted the residence and godown of one

Liyakat Gulam Hussain Shaikh and set the godown on fire.

Thereafter, the unlawful assembly, in prosecution of

the common object of the assembly, continued

rioting and ransacked the residence and godown of certain

Muslims in Shivnagar locality. Property worth lacs of

rupees belonging to Muslims was damaged and destroyed.

14. Thereafter, the members of the unlawful assembly

proceeded towards Hanuman Tekdi via Ganesh Nagar. They

were giving slogans. Several persons joined the unlawful

assembly and the members of the said assembly gathered

near Hanumanji Temple situated on Hanuman Tekdi. Other

persons, from Hanuman Tekdi, Ansuyanagar and

surrounding areas - including the accused - joined the

assembly and finally the assembly became of about 1000 to

 12

1200 members. The members of the assembly were armed

with deadly weapons and also carrying inflammable liquid.

The mob started pelting stones at the Best Bakery

building.

15. Bhimsinh Solanki [P.W.61], Assistant Sub Inspector

of Police, was attached to Wadi Police Station, at the

material time. On 01/03/2002, he was In-charge of Wadi-I

Mobile. He was a Head Constable then. While he was

patrolling in the Wadi-I mobile van, a message was

received from the Vadodara City Police Control Room, at

about 20.35 hours, that stone throwing was going on at

Daboi Road, Hanuman Tekdi and that the mobile van should

reach there. On the basis of this message, the mobile van

was taken to Hanuman Tekdi area and was stopped near

Hanuman Mandir. Announcement was made on the loudspeaker

of the mobile van, asking the members of the unlawful

assembly to disperse and reminding them that the curfew

had not been lifted. On noticing the police van and

because of the announcement, the members of the unlawful

assembly dispersed.

16. After the police van - Wadi-I mobile - left, the

members of the said unlawful assembly once again

assembled with deadly weapons and inflammable liquid.

17. Kausarali came out of the Best Bakery and tried to

 13

pacify the mob, but the mob did not pay any heed to the

appeal of Kausarali. The accused No.11 Sanjay Thakkar

and some others poured inflammable liquid over the saw

mill/wakhar of Lal Mohammed [P.W.36] and set it on fire.

18. Apart from the members of the family of late

Habibulla Shaikh and the servants working in the bakery,

family members and relatives of the Aslam Shaikh [P.W.42]

had also taken shelter in the Best Bakery building at the

material time. One Firoz Mohammed Khan, his wife

[Link], his son Subhan aged five years, his

daughter Mantasha aged 3 years, Shabnambibi, wife of

Aslam Shaikh, Aslam's daughters Sipli and Babli aged 4

years, one Arshad @ Lulla were also in the Best Bakery

building at that time.

19. The mob of rioters, after setting fire to the

mill/wakhar of Lal Mohammed [P.W.36] ransacked and looted

the Best Bakery premises. The articles including tins of

oil, ghee, maida bags and gunny bags of sugar totally

valued at about Rs.75,000/- were looted by the said mob

of rioters. The rioters were pelting stones at the Best

Bakery building and were shouting that 'these are

Muslims', 'set them ablaze', etc. The rioters were

throwing boxes, bulbs of inflammable fluid like petrol,

kerosene and diesel on the first floor of the residential

 14

premises of the Best Bakery building. Inflammable

liquids were poured over the wood stored on the ground

floor and it was set on fire. Inflammable liquids were

poured over other rooms also. Inflammable liquids were

poured on the vehicles parked outside the Best Bakery

building - i.e. Sunny moped, a scooter, a Hero Honda

Motorcycle, two three wheeler tempos - and these vehicles

were set on fire, totally resulting in the loss and/or

destruction of the property worth rupees more than ten

lacs.

20. Thereafter, the members of the assembly ransacked

the residential premises of Aslam Shaikh [P.W.42], set it

on fire, destroying household articles and vehicle,

causing damage to the property worth about Rs. 1,50,000/-

21. The four children of Aslam and Firoz, and the

three women Ruksana, Shabnambibi and Sabira got

trapped on the first floor of the building. Due to the

fire that was caught, they were burnt to death. The

others had rushed to the terrace of the Best Bakery

building to save their lives and were hiding themselves

there.

22. The mob of rioters - consisting of the accused

persons - kept surrounded the Best Bakery building

 15

through out the night. The rioters were throwing stones,

soda water bottles, burning bottles filled with petrol

and/or diesel, burning wood stored downstairs towards the

terrace. This went on through out the night. In the

night itself, Kausarali and Lulla were assaulted by

swords. They were dragged down from the first floor by

the rioters. Both of them were thrown in the fire and

were killed.

23. In the morning, the rioters asked inmates of the

Best Bakery building - i.e. the family members of the

Habibulla Shaikh -, servants of Best Bakery - i.e. Taufel

[P.W.26], Raees [P.W.27], Shehzad [P.W.28], Sailun

[P.W.32] and others, who were on the terrace - to come

down. The persons trapped on the terrace requested the

mob not to kill them and to allow them to go to their

native places. The said persons - i.e. members of family

of Habibulla, the aforesaid witnesses and others - were

made to get down from a ladder that was put to the wall

of the Best Bakery building. The object of the mob of

rioters – which included the accused persons - behind

requiring the persons trapped on the terrace of the

building to get down, was to kill them.

First, the women got down and thereafter, the male

members got down one by one. However, Saherunnisa's

mother – an old lady of 80 years – could not get

 16

down and remained trapped on the terrace only. From

among the mob, someone snatched gold chain which Sahera

[P.W.35] was wearing around her neck. Accused No. 21

Ravi Chauhan snatched the silver chain of Yasmin

[P.W.29], which she was wearing around her neck.

24. Firoz and Nasru tried to run away. However, some

persons from the mob of rioters chased them, caught both

of them in an open field near the said building, tied

their hands and legs with rope, brutally attacked them

with deadly weapons and also burnt them, causing their

death.

25. The hands and legs of others - i.e. Nafitulla,

Nasibulla, Taufel, Raees, Shehzad, Sailun, Baliram,

Prakash and Rajesh - who were made to get down from the

terrace were also tied with ropes and they were

brutally attacked with sharp weapons causing serious –

and in some cases, fatal – injuries to them. Some

members of the assembly dragged the women a little away

towards the jungle and were threatening to rape them one

by one after beating the male members brutally. The mob

of rioters, consisting of the accused persons, put wooden

planks on the limbs of Nafitulla, Nasibulla, Taufel,

Raees, Shehzad and Sailun and set them on fire.

 17

26. When this was going on, Chandrakant @ Battu

Shrivastav [P.W.58], Municipal Corporator from the local

area, on learning about the incident, telephoned Panigate

Police Station, informing the police about the same. PI

[Link] [P.W.72], immediately informed PSI Balwantsinh

Rathod [P.W.63], who was at that time patrolling in the

area within the jurisdiction of Panigate Police Station

by wireless mobile van, that, at Hanuman Tekdi,houses

of Muslims were burning; and that Rathod should go to

that place to verify the same and report to the police

station. Balwantsinh Rathod went there. On seeing the

mobile van of the police, the mob of rioters ran away.

The mobile van was parked near the Hanuman Temple. Rathod

noticed that the Best Bakery building was burning. He

heard the voice of some people crying. He noticed that 9

persons whose hands and legs were tied, who had sustained

injuries by sharp edged weapons and also burn injuries,

were lying on the rear side of the Best Bakery building.

PSI Rathod immediately gave a message to Police Control

Room and also to PI Baria, informing about this and

calling for the fire brigade and ambulance. Rathod and

the others with him, then started untying the hands and

legs of the said 9 persons. At that time, Shri Piyush

Patel [P.W.67], the then Deputy Commissioner of Police,

South Zone, Vadodara, and PI Baria [P.W.72] arrived

there. PSI Rana also came there with DCB crime-I Mobile
 18

van. Alongwith Piyush Patel and the other officers, fire

brigade personnel consisting of Dayaram Pal [P.W.9],

Leading Fireman, two other Firemen and one driver, also

rushed to the Best Bakery building. Dayaram Pal started

spraying water to extinguish the fire caught to the Best

Bakery building. However, as the fire was considerable,

he sent a message to Panigate fire station for help. The

Fire Brigade staff also called for an ambulance.

[Link], Fire Officer [P.W.10] who was on duty at

Dandia Bazar Fire Station, also went to Hanuman Tekdi

area, on receipt of a call from Dayaram Pal [P.W.9]. He

observed that the situation was serious. He gave a call

to Ishwarbhai Sutar [P.W.11], Deputy Chief Fire Officer

at Dandia Bazar Fire Station. On receipt of the

message from Shri [Link], Ishwarbhai Sutar also came

to the spot with ambulance.

27. When the police - PSI Balwantsinh Rathod [P.W.63],

Piyush Patel [P.W.67], PI Baria [P.W.72] - and others

were there, three Muslim women came from the bushes, met

D.C.P. Piyush Patel and PI Baria and disclosed certain

facts about the incident. The Fire Brigade was

extinguishing the fire. Seven dead bodies were brought

down from the first floor. The said nine injured

persons, as also the dead bodies, were put in ambulance

and taken to S.S.G. Hospital. The old woman who had been
 19

trapped on the terrace of the building was also brought

down by the Fire Brigade staff.

28. PI Baria was accompanied by a Videographer Gautam

Chauhan [P.W.69], Gautam Chouhan did video shooting of

the scene, after reaching the spot.

29. The injured Taufel [P.W.26], Raees [P.W.27], Shehzad

[P.W.28], Nasibulla [P.W.30], Nafitulla [P.W.31], Sailun

[P.W.32], Rajesh, Prakash and Baliram were brought to

S.S.G. Hospital. They were examined by [Link]

Robin [P.W.46] who was on duty at that time. [Link]

Robin made the necessary entries [Ex.182, Ex.175, Ex.178,

Ex.179, Ex.183, Ex.176, Ex.177, Ex.180 and Ex.181] in the

E.P.R. register [X-79 for identification].

30. Rameshbhai Vajubhai Rathwa [P.W.16], A.S.I., was

posted on duty at the S.S.G. Hospital at the material

time for conveying the information, in respect of medico

legal cases coming to the hospital, to the concerned

police stations. [Link] Robin [P.W.46] called him

and dictated the relevant information to him which was

written down by Rameshbhai Rathwa in the Casualty Police

Register, [also called as Dawakhana Vardi Register] [X-6

for identification] by making entries [Ex.57/1] therein.

Rameshbhai Rathwa then gave a message to the Panigate

 20

Police Station on telephone. ASI Manharbhai Waria

[P.W.68] was on duty as the Police Station Officer at

that time, who received the said message and made an

entry [Ex.273] regarding it in the station house diary

[X-90 for identification].

31. Manharbhai Waria [P.W.68] directed ASI Abhaysinh

Patel [P.W.66], who was attached to Panigate Police

Station at the material time, to go to the hospital and

investigate regarding the information that had been

received. Abhaysinh Patel [P.W.66] went to the S.S.G.

Hospital.

32. Taufel [P.W.26], Raees Khan [P.W.27], Shehzad

[P.W.28], Nasibulla [P.W.30], Nafitulla [P.W.31] and

Sailun [P.W.32] were later referred to [Link] Choksi

[P.W.62], Associate Professor of Surgery in S.S.G.

Hospital and Medical College, Vadodara, who was In-Charge

of Surgical 'F' Unit and on duty in D-4 Ward. The said 6

persons were referred to him for expertise surgical

treatment and were admitted in the D-4 Ward. They were

examined and treated by [Link] and his colleagues

doctors in the said ward under his supervision.

33. After the fire was extinguished and the injured and

the dead bodies were sent to [Link], PI Baria

 21

left for S.S.G. Hospital alongwith Zahira [P.W.41], the

said old woman and Videographer Gautam Chauhan [P.W.69].

On the way, he dropped the old woman at the Panigate

Police Station, and took his two writers alongwith him to

the hospital. When PI Baria reached the hospital the

injured were being given treatment. PI Baria recorded

‘fariyad’ [Ex.136] of Zahira [P.W.41] at the place

outside the emergency treatment department. The said

'fariyad' was sent to the Panigate Police Station, on the

basis of which the [Link]. 82 of 2002, was got registered

at 1515 hours.

34. Jagdishbhai Choudhary [P.W.70] who was the P.S.O. at

Panigate Police Station at the material time made the

necessary entry [Ex.278] in the Station House Diary [X-90

for identification] and also an entry in the F.I.R.

Register, in connection with the registering of the

F.I.R.

35. Special report, together with a copy of the

'fariyad', was forwarded to superior police officers as

per the procedure. Commissioner of Police, Vadodara

City, sent a fax message [X-100 for identification] to

the Additional Director General of Police [Intelligence]

and to the Additional Chief Secretary [Home], Gandhinagar

and Director General of Police, Gandhinagar on

 22

02/03/2002, itself.

36. Injured Ramesh [Raju Sharma] died at about 11.55

a.m., Injured Prakash died at 12.20 p.m. and injured

Baliram died at about 2.00 p.m. This information was

conveyed by the doctors concerned to Rameshbhai Rathwa

[P.W.16] and Gordhanbhai Makwana [P.W.17] who were on

duty for conveying information of Medico Legal Cases to

concerned Police. They conveyed the information to

Panigate Police Station. Appropriate entries in the

record were made.

37. In the meantime, Abhaysinh had reached the S.S.G.

Hospital pursuant to the directions given by Manharbhai

Waria. In order to ascertain whether any of the injured

were in a condition to make any statement, Abhaysinh gave

a written communication [Ex.262] to [Link] Judal

[P.W.71] who was on duty at that time, seeking his

opinion on that. [Link] noted that none of the injured

were in a condition to give any statement and made an

endorsement to that effect [Ex.262/1] on the said

communication [Ex.262]. However, about half an hour or

45 minutes thereafter, Abhaysinh Patel [P.W.66] recorded

the statement [Ex.264] of Raees Khan who was conscious.

I N V E S T I G A T I O N

38. After getting the F.I.R. registered, PI Baria went

 23

to the post-mortem room with Zahira, who identified the

dead bodies and thereafter PI Baria drew inquest

panchnamas in respect of the dead bodies of Son of Firoz,

Raju, Baliram and Prakash, [Ex.16 to Ex.19] with Vijay T.

Waghela [P.W.5] and Shabbir [Link] [P.W.14] acting as

panchas. Inquest Panchnamas in respect of the dead bodies

identified as Zainabbibi [wife of Aslam], daughter of

Firoz, Babli [daughter of Aslam Shaikh], Sipli [daughter

of Aslam Shaikh], Shabnambibi [wife of Firoz] and Sabira

and [Ex.48 to Ex.53] were also drawn at that time itself

with Shabbir [Link] [P.W.14] and [Link] [Link]

acting as panchas.

39. Arrangements were made for Zahira's and her Nani's

stay with one Iqbal Ansari [P.W.39] at Bahar Colony.

The injured were admitted in hospital.

40. Post-mortem examination of the dead bodies were

carried out by the different doctors. [Link] Basu

[P.W.47] performed post-mortem examination on the dead

bodies of Zainabbibi, Son of Firoz, and Raju @ Ramesh;

[Link] Rathod [P.W.48], performed post-mortem

examination on the dead bodies of Sabira, Shabnambibi and

Prakash; [Link] [P.W.49] performed post-mortem

examination on the dead bodies of Babli [daughter of

Aslam] and Baliram; and Dr.K.H. Chavle [P.W.54]

 24

performed post-mortem examination on the dead bodies of

Sipli [daughter of Aslam] and daughter of Firoz. The

doctors filled in the printed prescribed proforma in

respect of the post-mortem examinations, carried out by

them, respectively. [[Link].192, 193, 194, 198, 199, 201,

202, 204, 207, 208, 218, 219 respectively.]

41. On 03/03/2002, the 7 dead bodies identified as -

i] Zainabbibi,

ii] Sabirabibi,

iii] Shabnambibi,

iv] Girl Sipli,

v] Girl Babli

vi] son of Firoz, aged 5 years,

vii] daughter of Firoz, aged 3 years -

were handed over to Zahira [P.W.41] and Iqbal Ansari

[P.W.39] for performing funeral rites. After the

burial of dead bodies, by taking Zahira with him, PI

Baria went to the place of incident, along with panchas

Mohammed Shaikh [P.W.3] and Kalumiya Shaikh [P.W.4] and

drew a panchnama [Ex.13]. Zahira pointed out certain

places and gave some information to the police in the

presence of PI Baria and the said panchas. Bricks,

stones, bottles, wooden planks, bulbs, mattresses, etc.

were lying on the terrace of the Best Bakery building.

The walls of the building had developed cracks due to

 25

heat and had been blackened. Some vehicles – viz.

Rickshaw, Hero Honda, tempos etc. were lying outside the

bakery in fully burnt condition.

42. After drawing the panchnama [Ex.13] PI Baria

recorded the statements of [Link] Bhatt [P.W.43]

and Kanchanbhai Mali [P.W.44], who are residing in the

neighbourhood of the Best Bakery building.

43. On the same day – i.e. on 03/03/2002 - after 8.30

p.m., dead bodies of Nasru and Firoz were found in an

open space near Hanuman Tekdi, which were taken charge of

by PI Baria and taken to the S.S.G. Hospital, in the

ambulance of the fire-brigade, driven by Satish Rawal

[P.W.12]. On the next day, PI Baria called panchas

Karimbhai Painter [P.W.13] and Yusufmiya G. Shaikh and

drew a panchnama [Ex.46] in respect of the place where

the dead bodies had been found lying. Zahira identified

the dead bodies of Firoz and Nasru in the presence of

panchas - Vijaybhai T. Waghela [P.W.5] and Irfanbhai

Vora. Inquest panchnamas [Ex.20 and Ex.21] in respect of

the said dead bodies were drawn.

44. On 04/03/2002, PI Baria recorded the statements of

Taufel [P.W.26], Raees [P.W.27], [Link] [P.W.29],

Nasibulla [P.W.30],Nafitulla [P.W.31], Sahera [P.W.35]

 26

and Saherunnisa [P.W.40] in the S.S.G. Hospital. PI

Baria also recorded the further statement of Zahira

[P.W.41] on that day.

45. The Doctor performing post-mortem examination on the

dead bodies of Nasru and Firoz had forwarded the katha

rope and the wire [Articles R/15 (colly)], that were on

the said bodies, to PI Baria, who took charge of the same

in the presence of panchas Hanif Mehboob Sayyad [P.W.7]

and Noor Mohammed Shaikh and drew Panchanama [Ex.37].

46. On 06/03/2002, the statements of Shehzad [P.W.28]

and Sailun [P.W.32] were recorded.

47. On 06/03/2002, 07/03/2002 and 08/03/2002 inquiries

were made about the accused persons, but nobody was

found.

48. On 09/03/2002, further statements of Zahira [P.W.41]

and Aslambhai [P.W.42] were recorded by PI Baria. The

offenders were not found in spite of making search for

them.

49. PI Baria made search for the accused, in the area

surrounding the Best Bakery, but he was not able to find

out anybody.
 27

50. On 10/03/2002, in the course of further

investigation,further statements of certain persons -

including that of Nafitulla [P.W.31]- were recorded.

51. On the same day, the investigation was entrusted to

PI Shri [Link] [P.W.74] of the D.C.B. Police Station,

by an order [Ex.392] of the Commissioner of Police,

Vadodara, pursuant to which, PI Baria handed over the

case diary and original case papers of investigation to

PI Kanani.

52. On 11/03/2002, PI Kanani obtained notes of the post-

mortem examination performed on the dead bodies of

[Link] w/o Aslambhai Haroon Shaikh [Ex.192], Sabira

[Ex.198], [Link] w/o Firoz Akhtar Khan [Ex.199],

Sipli [Ex.218] d/o Aslam, Subhan s/o Firoz Akhtar Khan

[Ex.193], Mantasha d/o Firoz Akhtar Khan [Ex.219],

Ramesh @ Raju Baijanath Badhai [Ex.194] and Prakash

[Ex.201] from the office of the Deputy Commissioner of

Police, South Division, along with his forwarding letter

[Ex.393 (colly)].

53. Apart from other investigation, PI Kanani searched

for the wanted accused in the area surrounding the 'Best

Bakery', but did not succeed as most of the houses in the

 28

locality were locked. Thereafter, PI Kanani obtained

notes of the post-mortem examination in respect of the

dead bodies of Babli [Ex.207], Firoz

Akhtar Mohammad Israel Khan [Ex.202] and Nasruddin

Mohammad Idris Khan [Ex.204], from the S.S.G. Hospital.

PI Kanani visited the spot of offence in the evening.

[Link] [P.W.40] and [Link] [P.W.35] were

kept present on the spot at that time. PI Kanani made

inquiries with them.

54. On 12/03/2002, PI Kanani went to the S.S.G. Hospital

and made inquiries with [Link] [P.W.40] and

[Link] [P.W.35] and recorded their statements.

Thereafter, PI Kanani made a report [Ex.394] to the

Judicial Magistrate, 1st Class, for adding the charges of

offences punishable under sections 395 and 201 of the

I.P.C. in this case.

55. On the same day, PI Kanani took search of the house

of Jayanti [original accused no.6] in the presence of his

wife [Link], but nothing incriminating was found.

Thereafter, PI Kanani searched for other accused,

including Sanjay Thakkar [accused no.11], but did not

find any of them. In the presence of Bharat Thakkar,

brother of Sanjay Thakkar [accused no.11] and in the

presence of panchas, the search of the house of Sanjay

 29

Thakkar was taken, but nothing incriminating was found.

56. On 12/03/2002 also, most of the houses in the

locality, were locked. PI Kanani found out the houses of

accused Yasin Khokhar [accused no.13] and Yogesh Painter

[accused no.5] but both the houses were locked.

57. On 13/03/2002, notes of the post-mortem examination

[Ex.208] in respect of deceased Baliram were obtained.

58. Thereafter, PI Kanani wrote a letter [Ex.395] to

City Survey Superintendent No.4, for preparing a sketch

plan of the place of offence, enclosing therewith a copy

of the panchanama of scene of offence.

59. On the same day, PI Kanani prepared a list [Ex.396]

of 18 absconding accused whose names had been revealed

during the investigation carried out till then and

circulated the same to all the Police Stations within the

city and also to some other branches of the police.

60. Attempts were also made to get information regarding

the accused who were wanted in the case.

61. On 14/03/2002, PI Kanani recorded the statement of

[Link] [P.W.63] and some others who were with Rathod

 30

in Panigate-[I] mobile and had visited the place of

incident on 02/03/2002. PI Kanani also recorded the

statements of the police staff from Crime-I mobile, who

had reached the place of incident on 02/03/2002. In

spite of making efforts neither Kausarali nor Lulla were

found. Search for the wanted accused was taken, but none

was found.

62. On 22/03/2002, PI Kanani sought certain information

from the Assistant Commissioner of Police, [Control

Room], and collected the certified copies of the relevant

messages. To explore the possibility of getting a

support to the theory of Kausarali and Lulla having been

burnt in the wakhar or in the bhatti of the bakery by the

mob of rioters, PI Kanani contacted the authorities from

Forensic Science Laboratory [F.S.L.], for finding out, by

searching the bakery and the wakhar with their help,

whether any remains of human body could be found at these

places. He gave a memo [Ex.397] to PSI Dave [P.W.75] to

bring the officers from F.S.L. to the place and to search

along with them, to see whether any parts of human body

could be found. PSI Dave [P.W.75] went to the Best

Bakery by taking the F.S.L. team consisting of Ashokkumar

R. Waghela [P.W.19] Scientific Officer and others. In the

presence of panchas Mukhtyar Mohammed Shaikh [P.W.6] and

Shantilal Desai, a number of samples of walls scrapings

 31

and earth, etc., were taken from the Best Bakery

premises. In the heap of burnt coal and wood, on the

steps on the rear side of the Best Bakery building, a jaw

bone and pieces of burnt bones [Art.R/14(colly)] were

found. All the samples collected, were properly taken

charge of, sealed and labeled, under a panchanama

[Ex.24]. The samples were kept in a safe custody.

[Articles R/1 to R/10 (colly)]

63. On 24/03/2002, among other steps in the course of

investigation, inquiries were made by PI Kanani with

D.C.P. Shri Piyush Patel [P.W.67] and A.C.P. ['A'

Division] Shri [Link] and their statements were

recorded.

64. PI Kanani searched for the wanted accused in the

locality of Hanuman Tekdi, Ansuya Nagar, Gajarawadi and

Padam Talao on 25/03/2002, but none was found. PI Kanani

obtained copies of wireless messages given to Wadi – (I)

Mobile, Panigate - (I) Mobile at the material time.

65. On 27/03/2002, samples [Articles R/1 to R/10

(colly)] collected by PSI Dave on 22/03/2002 under

panchnama [Ex.24] were delivered to the F.S.L. by PI

Kanani personally with a forwarding letter [Ex.93] and a

forwarding note together with the authorization

 32

certificate [Ex.94] issued by the A.C.P. ['A' Division].

66. In order to ascertain, whether the burnt bones [part

of Art.R/14 (colly)] collected under the said panchnama

were human bones and other relevant details, PI Kanani

personally handed over the relevant samples to the Head

of the Department of Anatomy, Medical College, Vadodara,

with a forwarding letter [Ex.69].

67. Sureshchandra Vitthalbhai Sithpuria [P.W.25],

Assistant Director in the F.S.L., Biology Division,

received the said samples in 10 sealed parcels on

27/03/2002 from Inspector of Police, D.C.B., Vadodara

city, along with the said documents [Ex.93] and [Ex.94].

The parcels were opened in his supervision. Parcels

marked as Ex.A to Ex.F [Articles R/1 to R/6] were

forwarded to the Chemistry Section with the original

seal. The remaining 4 parcels having Ex.G to Ex.J

[Articles R/7 to R/10] were opened and contents were

examined for ascertaining the presence of bloodstains.

68. On the same day, during the combing operation,

accused No.1 - Rajubhai Dhamirbhai Baria, accused No.2 -

Mahendra @ Langado Vishwasrao Jadhav, Accused No.3 -

Harish @ Tino Virendragir Gosai, Accused No.4 - Pankaj

Virendragir Gosai and Accused No.5 - Yogesh @ Painter

 33

Laxmansinh Verma were apprehended. PI Kanani

interrogated all these 5 accused with the assistance of

his Sub Inspector. PI Kanani [P.W.74] made inquiries

with these accused about their names and their addresses,

physically examined their bodies in the presence of two

panchas - Paresh Bramhabhatt [P.W.50] and Deepak Sharma.

Panchnama [Ex.210] in that respect was drawn. The

accused nos.1 to 5 were placed under arrest. PI Kanani

took the search of the respective houses of the said 5

accused in the presence of their family members and

panchas.

69. The search of the residence of accused no.13 - Yasin

Khokhar - was also taken and panchnama in respect of the

same was drawn. Search for the other wanted accused

continued and PI Kanani made inquiries in Hanuman Tekdi,

Ansuya Nagar and Padam Talao Area.

70. On 28/03/2002, inquiries were made about accused

Jitu. On the same day, inquiries were also made with

Chandrakant @ Battu Srivastav [P.W.58] and his statement

was recorded.

71. [Link] [P.W.20], Associate Professor of Anatomy

in the Medical College, Vadodara, and [Link] Soni

[P.W.60], who was working as Assistant Professor of

 34

Anatomy in the said college, on 28/03/2002, examined the

bones [part of Art.14(colly)] and came to the conclusion,

inter-alia, that the incompletely burnt bones were of

human origin; and that all the bones were not of the same

person; and that a few identified bones were belonging to

a person aged above 18 years. [Link] and [Link]

recorded their conclusion in a certificate [Ex.71/A]

dated 16/04/2002.

72. Search for the wanted accused was continued.

73. On 01/04/2002, the accused No.6 - Jayanti Jamsinh

Gohil - [absconding], accused No.7 - Ramesh @ Rinku J.

Gohil [absconding], accused no.8 - Mafat @ Mahesh M.

Gohil [absconding], accused no.9 - Harshad @ Munno R.

Solanki [absconding], accused no.10- Pratapsinh

Chauhan, accused no.11 - Sanjay @ Bhopo @ Bobdo Ratilal

Thakkar and accused no.12 -Bahadursinh @ Jitu Chandrasinh

Chauhan, all came together to the D.C.B. Police Station

and surrendered themselves. PI Kanani then interrogated

all these 7 accused. He called 2 panchas Habibbhai Arab

[P.W.51] and Bhupendra Rana and in their presence he

inquired with the said accused regarding their names etc.

Examination of the bodies of the accused was done in the

presence of the said panchas. After drawing a panchnama

[Ex.212] in that regard, the said accused were placed

 35

under arrest.

74. Further statements of Zahira [P.W.41] and Nafitulla

[P.W.31] were recorded.

75. On 03/04/2002, medical certificates in respect of

Raees [P.W.27], Nasibulla [P.W.30] Taufel [P.W.26],

Shehzad [P.W.28] [Ex.163, Ex.169, Ex.171 and Ex.167

respectively] were obtained.

76. During interrogation absconding accused Jayanti

Gohil voluntarily disclosed certain information, pursuant

to which a sword [Art.R/23] was recovered from a field

near Padam Talao, near which the said accused was

residing, under a panchnama [Ex.129] with Abdul Rehman

Kadiwala [P.W.38] and Sandeep Patel acting as panchas.

77. The accused No.7 - Ramesh @ Rinku Jayantibhai Gohil

[absconding] - also disclosed certain information,

pursuant to which two weapons - a Sura [Art.R/24] and a

pipe [Art.R/25] - were recovered from the tin roof of the

hut of the said accused under a panchnama [Ex.130] in the

presence of panch Abdul Rehman Kadiwala [P.W.38].

78. During his interrogation, accused No.8 - Mahesh @

Mafat Manilal Gohil [absconding] - also disclosed certain

 36

information, pursuant to which a sword [Art.R/16], hidden

in the bunch of creepers near the hand pump on the bank

of Padam Talao, was recovered in the presence of panchas

Jagdish Desai [P.W.8] and Mohammad Rafique Mansuri, under

a panchnama [Ex.40].

79. On 04/04/2002, Accused No.9 - Harshad @ Munno

Ravjibhai Solanki [absconding]- disclosed certain

information, pursuant to which a sword [Art.R/21] was

recovered from the roof of the rear portion of the house

of the accused in the presence of panchas Kamlesh Darji

[P.W.24] and Mohammed Iqbal under a panchnama [Ex.88].

80. During interrogation, the accused No.10 - Pratapsinh

Ravjibhai Chauhan - voluntarily disclosed some

information, pursuant to which the police party and

panchas Kamlesh Darji and Mohammad Iqbal Noor Mohammad

were led to his house situate in the lane, opposite Best

Bakery. The said accused took out an iron pipe

[Art.R/22] from the roof of his house, in the presence of

the said panchas. Panchnama [Ex.90] in respect of the

information disclosed by the accused and the recovery in

consequence thereof was drawn. Search of the house of

the accused, under section 165 of the Code was also

carried out in the presence of the said accused, but

nothing incriminating was found.

 37

81. The interrogation of the accused persons was

continued. The accused No.11 - Sanjay Ratilal Thakkar -

disclosed certain information which was recorded in the

presence of panchas - Devendra Thakore [P.W.22] and

Chandbhai Supariwala. Pursuant to the information

disclosed, the police party and the panchas were led to

an open plot on the south of Mahendrabhai's godown,

situate opposite the house of the accused Sanjay

Thakkar. From the Babool bushes, in the North East

corner of the plot, the said accused took out a sword

[Art.R/18] and an iron rod [Art.R/17] and produced the

same. Panchnama [Ex.81] in respect thereof was drawn.

82. After returning to the Police Station, PI Kanani got

the information that accused No.12 - Bahadursinh @ Jitu

Chauhan - also wanted to disclose certain information in

connection with the weapon and therefore, PI Kanani asked

the same panchas - i.e. Devendra Thakor [P.W.22] and

Chandbhai Supariwala - to wait. Inquiries were made with

accused No.12 - Bahadursinh @ Jitu Chauhan. In the

presence of the panchas, the said accused disclosed

certain information, which was recorded in the

preliminary portion of the panchnama [Ex.83] and pursuant

to the information, the police party and the panchas

were led to the house of the accused, situate in the lane

 38

on the right side of Mahendrabhai's godown in Ansuya

Nagar locality. The said accused went to the kitchen

room on the rear side and took out a Gupti [Art.R/19].

The same was taken charge of, by the police. The search

of the house of the said accused under the provisions of

section 165 of the Code was also taken, but nothing

incriminating was found. The panchnama [Ex.83] was

completed.

83. The investigation continued. It was observed by PI

Kanani that the residents of the locality were reluctant

to give information to the police; and that they were not

ready to make a statement before the police.

84. On 09/04/2002, inquiries were made with Iqbal Ansari

[P.W.39] and his statement was recorded.

85. On 11/04/2002, PI Kanani got the names of deceased

Firoz and his wife corrected in the post-mortem notes

[Ex.202 and Ex.199 respectively] by sending memos [Ex.203

& Ex.200] to [Link] Rathod [P.W.48]. The post-

mortem notes were sent to [Link] [P.W.48] through ASI

Fakirabhai [P.W.15]. Corrections were carried out in the

post-mortem notes.

86. Similarly, PI Kanani sent a memo [Ex.220] to

 39

[Link] [P.W.54] along with relevant post-mortem notes

through ASI Fakirbhai [P.W.15]. Accordingly, correction

was carried out in the post-mortem notes [Ex.219] of

daughter of Firoz.

87. On 12/04/2002, in order to get corrections in the

names of Aslam's wife, son of Firoz, Servant Raju made in

the post-mortem notes, PI Kanani wrote memos

[Ex.404,Ex.195 and Ex.196 respectively] to [Link]

Basu. For getting the name of Nasru corrected in the

post-mortem notes, PI Kanani wrote a memo [Ex.205] to

[Link] Rathod. The relevant original post-mortem

notes were sent to the concerned Doctors along with memo

through ASI Fakirbhai [P.W.15]. The necessary corrections

were made in the post-mortem notes [Ex.204]

88. On 13/04/2002, in the course of investigation, a

letter was written by PI Kanani to the Chief Fire

Officer, to which a reply was received by him. Certain

information was collected by PI Kanani.

89. On the same day, inquiries were made regarding

accused No.13 - Yasin Khokhar.

90. The investigation was proceeding and inquiries

regarding Kausarali and Lulla were also being made, but

 40

no information showing that they or any of them, were or

was alive, was received.

91. On 15/04/2002, certain directions were given to Head

Constable Bhimsinh Solanki [P.W.61] to go to the spot and

verify where, in fact, the fire was noticed by him on

01/03/2002.

92. On the same day, accused No.13 - Yasin Khokhar - was

apprehended by ASI Kanaksingh. Accused No.13 - Yasin

Khokhar - was brought to the police station and

interrogated. On the same day, PSI Patel apprehended

Accused No.14 Jagdish Rajput and Accused No.15 Dinesh

Rajbhar. PI Kanani started interrogating these two

accused also with the assistance of his Sub-Inspector.

At about that time, accused No.16 - Shanabhai Baria -

came to the Police station and surrendered himself. PI

Kanani started interrogating him also.

93. Panchas Abdul Rehman A. Pathan [P.W.56] and Shoukat

Mansuri were called and in their presence, panchnama

[Ex.224] in respect of the physical examination of all

the aforesaid 4 accused was drawn. After the panchanama,

the accused were placed under arrest.

94. Thereafter, PI Kanani took the search of the

 41

residences of accused nos.14, 15 and 16 in the presence

of panchas and the relatives of the said accused who were

present in the respective houses at that time.

95. Some further investigation was carried out,

including the search for the wanted accused in that

locality.

96. On the same day - i.e. 15/04/2002 - inquiries were

made about the whereabouts of accused no.17 - Tulsi

Tadvi, accused no.18 - Shailesh Tadvi and accused no.19

– Kamlesh Tadvi. PI Kanani learnt that the accused no.19

had been arrested on 21/03/2002 in connection with

[Link].I-42/02 of Wadi Police Station, which was in

respect of setting on fire one cabin on Daboi Road,

during the riots.

97. On 16/04/2002, further investigation, including the

constant interrogation of accused nos.13, 14, 15 and 16,

was carried out by PI Kanani.

98. On 17/04/2002, during the course of further

investigation, PI Kanani, among the other things, made

further inquiries with Shri Chandrakant @ Battu

Shrivastav [P.W.58] and recorded his further

statement. Certain information was called from the

 42

companies - Cellphone and A.T. & T – regarding the

details of calls made from telephone nos.9825046226 and

9824006881 on 01/03/2002 and 02/03/2002 respectively.

On the same day, an application was made by PI Kanani to

the Judicial Magistrate, First Class, 1st Court, for

handing over to him, the custody of accused no.19 -

Kamlesh Tadvi, who was in judicial custody then.

99. Accused no.17 - Tulsi Tadvi - and accused no.18 -

Shailesh Tadvi were arrested by PSI [Link] and brought

to PI Kanani. PI Kanani started interrogating the

accused. For drawing a panchanama in respect of physical

examination of the bodies of accused no.17 and accused

no.18, two panchas [Salimbhai Ganibhai Vohra and

Rajakbhai Noorbhai Vohra (P.W.52)] were called and a

panchanama [Ex.214], as per the narration of the panchas,

was written and drawn. At the conclusion of the said

panchanama, accused no.17 - Tulsi Tadvi - and accused

no.18 - Shailesh Tadvi - were placed under arrest.

100. Custody of accused no.19 -Kamlesh Tadvi- was

obtained. For drawing a panchanama in respect of

physical examination of the body of accused no.19 -

Kamlesh Tadvi, two panchas - Rajesh Shantilal Rana

[P.W.53] and Babumiya Mohsinmiya Arab - were called and a

panchanama, as per the narration of the facts, was

 43

written and drawn [Ex.216]. At the conclusion of the

panchanama, accused no.19 - Kamlesh Tadvi - was placed

under arrest.

101. Interrogation of the accused nos.13 to 19 continued.

102. On 18/04/2002 and 19/04/2002 also, along with

others, investigation/interrogation of the accused

persons continued.

103. During his interrogation, on 19/04/2002, accused

no.19 - Kamlesh Tadvi - disclosed certain information

which was recorded under a panchanama [X-148 for

identification]. Pursuant to the said information, the

police party and panchas - Salimbhai Ismailbhai Patni and

Sureshbhai Shanabhai Padiya - were led by accused no.19 -

Kamlesh Tadvi - to a plot of land where construction of

houses was being carried out; and from the passage

between the last construction work on the East-South

corner of the plot and the fence, Kamlesh Tadvi took out

a stick [Art.R/26] and produced the same. The said stick

was taken charge of, examined, properly packed, labelled

and sealed.

104. On 20/04/2002 and 21/04/2002, investigation

continued.
 44

105. On 24/04/2002, a letter [Ex.409] was written by

PI Kanani to PI, Panigate Police Station, to give the

photographs and/or video shooting, if any, in respect of

'Best Bakery' incident. A letter was also written by PI

Kanani to the Commissioner of Police, Vadodara City, in

order to find out as to at whose instance, the message at

8.30 p.m. on 01/03/2002 was given by the Control to Wadi–

I mobile. Inquiries were made with several residents of

the locality and their statements were recorded. Search

for the wanted accused continued.

106. On 25/04/02, PI Kanani received a video cassette

[Art.R/27, later on marked as Ex.283] in respect of the

video shooting done at the Best Bakery, from the P.I.,

Panigate Police Station, along with a letter [Ex.410].

107. From 26/04/2002 onwards, PI Kanani remained

busy through out the week, in maintenance of law and

order.

108. On 04/05/2002 and 07/05/2002, search for the

wanted accused was made, but none was found.

109. On 08/05/2002, certain further investigation

was carried out by making inquiries with certain persons.

 45

110. On 15/05/2002, the weapons recovered at the instance

of accused no.6 - Jayantibhai Jamsingh Gohil

[absconding], accused no.7 - Ramesh @ Rinku Jayantibhai

Gohil [absconding], accused no.8 - Mafat @ Mahesh

Manilal Gohil [absconding], accused no.9 - Harshad @

Munno Ravjibhai Solanki [absconding], accused no.10 -

Pratapsinh Ravjibhai Solanki, accused no.11 - Sanjay @

Bhopo Ratilal Thakkar, accused no.12 - Bahadursinh @ Jitu

Chandrasinh Chauhan, accused no.19 - Kamlesh Bhikhabhai

Tadvi, [Articles R/16 to R/19 and R/21 to R/26] were

forwarded to the F.S.L. with a forwarding letter [Ex.97]

and forwarding note along with the authorization

certificate from the ACP, 'A' Division, [Ex.98 (colly)]

through ASI Fakirbhai [P.W.15]. ASI Fakirbhai reported

to PI Kanani about having delivered the said note and

parcels to F.S.L. in accordance with the memo which had

given by PI Kanani to him and ASI Fakirabhai made his

endorsement on the said memo and handed it over along

with the receipt [Ex.58] from the F.S.L., to PI Kanani.

111. The said parcels together with the document [Ex.97]

and [Ex.98] were received by Shri Sureshchandra Sithpuria

[P.W.25]. Shri Sithpuria did the necessary analysis for

the purpose of ascertaining the presence, if any, of

bloodstains thereon. After analysis, he prepared his

 46

report and forwarded the same to P.I., D.C.B., along with

a forwarding letter [Ex.99(colly)].

112. On 16/05/2002, PI Kanani went to Medical

College, Vadodara and obtained the Certificate [Ex.71/A]

in respect of the examination of bones as had been

carried out by [Link] and [Link].

113. On 17/05/2002, by sending ASI Fakirabhai [P.W.15] to

Medical College, Vadodara. PI Kanani got back sealed

parcels containing bones.

114. PI Kanani made Inquiries with 44 persons

residing in Hanuman Tekdi and Ansuyanagar locality

and recorded their statements.

115. On 18/05/2002, again letter was faxed to the

Companies – Cellphone and A. T. & T. - for getting the

required information.

116. PI Kanani wanted to carry out D.N.A. test in respect

of the missing persons Kausarali and Lulla; and in that

connection, in order to ascertain their blood

relations, for Kausarali he contacted Nafitulla and for

Lulla, he tried to contact his brother Aslam [P.W.42] on

telephone.
 47

117. On 19/05/2002, during the search for the wanted

accused, Suresh @ Lalo Devjibhai Vasava [accused no.20]

was found at his residence. He was brought to the police

station and interrogated. Panchanama [Ex.222] in

respect of physical examination of the body of the said

accused was drawn with Arvindbhai Rana [P.W.55] and Rafiq

Fatehmohmmad Malek acting as panchas. At the conclusion

of the panchanama, the said accused was placed under

arrest.

118. On 21/05/2002, search for the wanted accused

was continued. On that day, PI Kanani received

information which had been called for by him from

companies – Cellphone and A.T. & T. PI Kanani also

received printouts in respect of all the calls relating

to certain mobile telephone numbers with regard to a

particular period.

119. In the search for the wanted accused, PI Kanani

apprehended Ravi Rajaram Chauhan @ Marathi [accused

no.21] at his residence and brought him to the police

station. In the presence of panchas Kanubhai Kalidas

Thakore and Gulam Mohammad Usmanbhai Memon [P.W.57],

panchanama [Ex.226] in respect of the physical

examination of the body of the said accused was drawn.

 48

At the conclusion of the panchanama, the said accused was

placed under arrest. He was interrogated.

120. During his interrogation, on 22/05/2002, Ravi

Chauhan [accused no.21] voluntarily disclosed certain

information which was recorded in the presence of panchas

Abdulsameen Abdulgani Mansuri [P.W.37] and Avdhut

Nagarkar [P.W.23]. Pursuant to the said information, the

said accused led the police party and panchas to his

house in Ansuya Nagar and from a hollow place at the

lower portion of a Babhool tree in the North-East corner

outside the rear portion of his house, the accused took

out a stick [Art.R/20] and produced the same. The said

stick was taken charge of, properly labelled and

sealed. PI Kanani took search of the house of the

accused in the presence of the accused himself and his

mother, but nothing incriminating was found. The

preliminary part of the panchanama [Ex.85] had already

been drawn before leaving the police station with the

accused no.21. The further part of the panchanama

[Ex.85] was written on the spot and the panchanama was

concluded.

121. On 27/05/2002, PI Kanani made certain further

inquiries in the course of investigation, which included

preparation for getting the D.N.A. test performed for

 49

fixing the identity of missing persons Kausarali and

Lulla.

122. On 28/05/2002, along with the sealed parcels

containing bones and the relevant papers, PI Kanani went

to Ahmedabad along with [Link] Shaikh [P.W.40],

Harun Shaikh and Aslam Shaikh [P.W.42]. PI Kanani got

the samples of the blood of [Link] and Harun

Shaikh, taken by the Chief Medical Officer, Civil

Hospital, Ahmedabad. The samples of the blood and the

relevant documents which included a copy of the report

given by [Link] [P.W.20] and [Link] [P.W.60], were

handed over to [Link] in the D.N.A. Section.

[Link] asked PI Kanani for a detailed report of the

examination of the bones carried out at Department of

Anatomy, Medical College, Vadodara. PI Kanani also

obtained the blood sample of Aslam and handed over that

sample also, with relevant documents to [Link].

123. PI Kanani then returned to Vadodara, with the said

three persons.

124. As per the advise given by [Link] on

28/05/2002, PI Kanani on 30/05/2002 called Kausar Ali's

wife - Smt. Sharjahan [P.W.34]- and son – Salman - to

come to Ahmedabad on the next day.

 50

125. PI Kanani wrote letter to Chief Medical Officer,

Civil Hospital, Ahmedabad for taking the blood sample of

[Link] [P.W.34] and Salman. He also wrote a

letter to F.S.L., Ahmedabad, for accepting the blood

samples. He then instructed ASI Fakirabhai [P.W.15] by

giving him the said letters to take [Link] and

Salman to Ahmedabad, obtain their blood samples at Civil

Hospital, Ahmedabad and then deliver the said blood

samples in the F.S.L., Ahmedabad.

126. On 31/05/2002, ASI Fakirabhai [P.W.15] went to

Ahmedabad, did the needful, came back and made a report

to PI Kanani.

127. On 01/06/2002, PI Kanani sent a reminder to F.S.L.

Vadodara, in respect of the report of the examination of

articles sent to them on 27/03/2002 and 15/05/2002.

128. As per the requirement of [Link], PI Kanani wrote

a letter to Medical College, Vadodara.

129. On 02/06/2002, PI Kanani made inquiries with 44

residents of Shivnagar and Ganeshnagar localities and

recorded their statements. The investigation continued

and on 03/06/2002, and 04/06/2002 also, inquiries were

 51

made with certain persons and their statements were

recorded. Among others, statements of Smt. Sharjahan

Kausarali Shaikh [P.W.34], wife of Kausarali and

Mohammad Ashraf Mohammad Haroon Shaikh [P.W.33] were

recorded.

130. On 10/06/2002, on examination of the said articles,

Sureshchandra Vithaldas Sithpuria [P.W.25] submitted a

report in respect of the analysis done by him, along with

a forwarding letter [Ex.95(colly)].

131. On 11/06/2002, PI Kanani received a report from

the F.S.L. [Ex.95(colly)] in connection with the articles

sent for examination on 27/03/2002.

132. On 12/06/2002, PI Kanani went personally to the

F.S.L. alongwith a letter [Ex.77] and sought some

clarification from the F.S.L. in connection with the

report.

133. On 12/06/2002, the weapon [Art.R/20] recovered

from Ravi Chauhan [accused no.21] was sent to the F.S.L.,

Vadodara, through ASI Fakirabhai [P.W.15] along with a

forwarding letter [Ex.100] and a forwarding note

[Ex.101]. It was received by Shri Sithpuria [P.W.25] in

a sealed parcel marked as 'K', along with the said

 52

documents. After examination and analysis, Shri Sithpuria

could not detect blood on the article [Art.R/20]. He

gave a report accordingly.

134. On the same day, PI Kanani went to Dandiya

Bazar Fire Station, made inquiries with Kiritbhai Patel

[P.W.10], Ishwarbhai Suthar [P.W.11] and Satish Rawal

[P.W.12] and recorded their statements. Thereafter, he

went to Gajrawadi Fire Station, made inquiries with

Dayaram Pal [P.W.9] and recorded his statement.

135. The investigation continued.

136. On 19/06/2002, PI Kanani received the necessary

clarification from the F.S.L. vide letter [Ex.78].

137. On 20/06/2002, PI Kanani made inquiries to find out

as to from whom the Control Room had received

information, on the basis of which, message was given by

them to Wadi-I Mobile at 8.35 p.m. on 01/03/2002. PI

Kanani gave a memo to ASI Fakirabhai [P.W.15] to trace

one Jitendra Jadhav and one Rajesh.

138. On 21/06/2002, PI Kanani contacted the City Survey

Office and City Mamlatdar Office for getting sketch plan

of the place of offence prepared.

 53

139. On 24/06/2002, chargesheet [Ex.417] was filed

against 21 arrested accused in the Court of Judicial

Magistrate, 1st Court, Vadodara. However, further

investigation in the matter continued in spite of the

filing of the charge-sheet.

140. On 29/06/2002, the sketch plan [Ex.7] prepared

and approved by Ratilal Variya [P.W.1] and Chandrakant

Patel [P.W.2] was obtained.

141. On 02/07/2002, reports were obtained from the F.S.L.

in respect of the weapons sent for examination on

15/05/2002 and 12/06/2002.

142. After this Court was nominated by the Hon'ble The

Chief Justice of the Bombay High Court for holding

retrial, in due course, the record of proceedings in

respect of the trial held by the Sessions Court at

Vadodara was received by this Court.

143. Even after the receipt of the record of proceedings,

the retrial could not be commenced, as the presence of

the accused persons could not be secured immediately. It

took some time to secure the presence of the accused

persons. The original accused no.6 – Jayantibhai Jamsinh

 54

Gohil, accused no.7 – Ramesh @ Rinku Jayantibhai Gohil,

accused no.8 – Mafat @ Mahesh Manilal Gohil and accused

no.9 – Harshad @ Munno Ravjibhai Solanki, however, could

not be found in spite of issuing coercive process and

publication of proclamation requiring their presence

before the Court. Warrants of arrest against them were

directed to the Mumbai police also, but those accused

could not be traced. The case of the said 4 accused was

therefore separated and the trial proceeded against the

above-mentioned accused only. Procedure as contemplated

under Section 299 (1) of the Code, was followed and it

was declared that the evidence of the witnesses recorded

in this case would be treated as the record of evidence

against the said absconding accused. Accused Ravi

Rajaram Chauhan [original accused no.21], who was on

bail during the previous trial and who surrendered before

this Court, was allowed to remain on bail during the

retrial also.

144. Though the case against the said 4 accused has been

separated, for the sake of convenience, all the accused

persons are being referred to by the same numbers which

were given to them originally – i.e. during the previous

trial.

145. After going through the police report, accompanying

 55

documents and record of the case, it was thought proper

to frame appropriate charges against the accused persons,

instead of proceeding to record evidence on the basis of

the charge framed during the previous trial.

146. The charge of offences punishable under Sections 143

of the I.P.C., 147 of the I.P.C., 435 of the I.P.C. r/w.

149 of the I.P.C., 436 of the I.P.C. r/w. 149 of the

I.P.C., 395 of the I.P.C., 395 of the I.P.C. r/w. 397 of

the I.P.C., 342 of the I.P.C. r/w. 149 of the I.P.C., 448

of the I.P.C. r/w. 149 of the I.P.C., 449 of the I.P.C.

r/w. 149 of the I.P.C., 450 of the I.P.C. r/w. 149 of the

I.P.C., 451 of the I.P.C. r/w. 149 of the I.P.C., 324 of

the I.P.C. r/w. 149 of the I.P.C., 326 of the I.P.C. r/w.

149 of the I.P.C., 302 of the I.P.C. r/w. 149 of the

I.P.C. and 188 of the I.P.C. was framed against all the

accused. Additionally, the charge of an offence

punishable under Sections 144 of the I.P.C. and 148 of

the I.P.C. was framed against accused nos.10, 12, 19 and

21.

147. At that time – i.e. on 22/09/2004 –, accused no.11

Sanjay Ratilal Thakkar had not been apprehended. After

his apprehension, a separate charge of offences

punishable under Sections 143 of the I.P.C., 147 of the

I.P.C., 435 of the I.P.C. r/w. 149 of the I.P.C., 436 of

 56

the I.P.C. r/w. 149 of the I.P.C., 395 of the I.P.C., 395

of the I.P.C. r/w. 397 of the I.P.C., 342 of the I.P.C.

r/w. 149 of the I.P.C., 448 of the I.P.C. r/w. 149 of the

I.P.C., 449 of the I.P.C. r/w. 149 of the I.P.C., 450 of

the I.P.C. r/w. 149 of the I.P.C., 451 of the I.P.C. r/w.

149 of the I.P.C., 324 of the I.P.C. r/w. 149 of the

I.P.C., 326 of the I.P.C. r/w. 149 of the I.P.C., 302 of

the I.P.C. r/w. 149 of the I.P.C. and 188 of the I.P.C.

was framed against him also.

148. The charge was read over and explained to all the

accused persons. All the accused pleaded not guilty to

the charge and claimed to be tried.

149. In order to establish its case against the accused

persons, the prosecution has examined, in all, 75

witnesses, all of whom, except P.W.18, P.W.59, P.W.64,

P.W.65 and P.W.73, have been referred to earlier while

narrating the details of the prosecution case. Dinubhai

Ambalal Patel [P.W.18] is the Chief Fire Officer through

whom certain documents were got produced. Rajendra

Chavan [P.W.59] is an Inspector of Police who had, on

16/12/2003, recorded the statement of first informant

Zahira Shaikh [P.W.41] in connection with the question of

protection to be provided to her. He was examined to

prove certain previous statements made by Zahira and for

 57

the purpose of contradicting her testimony on certain

points. Prakash Pathak [P.W.64] is the Assistant Sub-

Inspector of police attached to the Special Branch,

through whom the notifications against forming of

assemblies [Ex.253], prohibiting the possession of arms

[Ex.254] and imposing curfew [Ex.255] issued by the

Commissioner of Police, have been produced. Parimal

Keshabhai Velera [P.W.65], Deputy Commissioner of State

Intelligence, State of Gujarat, has been examined to

establish that certain video shooting was officially done

by the Gujarat Police during the riots in question.

Pankaj Shankar [P.W.73] is a Journalist who voluntarily

appeared before the Court and who was examined by the

prosecution for proving certain statements of Zahira

[P.W.41], Nafitulla [P.W.31], Saherunnisa [P.W.40] and

Nasibulla [P.W.30], said to be recorded by this witness

on a video during their interview taken by this witness

on 18/04/2002. The witness has produced a video cassette

[Ex.389] containing the record of the said interviews.

150. The accused have examined 5 witnesses in defence.

D.W.1 - Kumar Swami, Inspector General of Police, State

Intelligence Bureau, State of Gujarat, has been examined

for proving some previous statements made by [Link]

[P.W.29] to him, with the object of contradicting

[Link]. D.W.2 – Deepak Swaroop is the Commissioner

of Police, Vadodara City, who was apparently examined to

 58

establish the existence and maintenance of a lock-up

register by the D.C.B. Police Station, Vadodara, at the

material time. D.W.3 – Ramjibhai Jagjibhai Pargi,

Assistant Commissioner of Police, Vadodara City, was also

examined for establishing certain previous statements

made by [Link] to him with the object of

contradicting the testimony of [Link]. D.W.4 –

[Link] Pandya – is the Chief Executive Officer of a

local T.V. channel in Vadodara. She also has been

examined for the purpose of proving certain previous

statements made by [Link] in an interview given to

local [Link]. The C.D. [Art.R/38] containing a

record of the relevant interview and its transcription

marked as Ex.514(colly.) is said to be prepared by her.

D.W.5 – Ajay Jasubhai Patel – is the Videographer who had

done the video shooting in respect of an interview of

[Link] in which she had made the statements contained

in the said C.D. [Art.R/38]. It is on the basis of the

shooting done by him by using a Mini D.V. camera and

cassette, the said C.D. [Art.R/38] came to be prepared by

[Link] Pandya [D.W.4].

151. Apart from the oral evidence, a number of documents

have been tendered in evidence, marked and exhibited.

These include photographs, video cassettes and video

C.D.s.
 59

152. Local inspection of the place of offences and other

places was carried out. The learned Advocates for the

accused had made an application even before the

commencement of the recording of evidence praying that

local inspection should be carried out. However, it was

thought not necessary to carry out the local inspection

at that point of time. Later on, before the evidence of

the Investigating Officer PI Shri P.P. Kanani [P.W.74]

was recorded, the learned Advocates for the accused again

made an application praying for local inspection. In the

said application, it was categorically asserted, inter-

alia, as follows:

“A visit by this Court will conclusively

prove that none of the witnesses, who
claim to have seen the accused, could
have, in fact seen them.”
and that:

“A grave prejudice will be caused to the

accused if this is not done.”

In view of this emphatic and categorical assertion on

behalf of the accused, the application was allowed.

Local inspection was carried out on 26th May [in the

night] and 27th May 2005 [in the morning], as the learned

Advocates for the accused had expressed that it was

necessary to inspect the relevant places in the night, as

well as in the morning.

 60

153. The memorandum of the facts observed at the said

inspection [Ex.402] is on record.

154. The defence of the accused persons, as appearing

from the cross-examination of the prosecution witnesses

and from their examination under Section 313 of the Code,

is of total denial. Though there are certain variations

in certain contentions raised by the accused persons –

which variations occurred as the trial progressed –, the

basic defence of the accused persons is that they have

not committed the alleged offences; and that they have

been falsely implicated. The accused persons claim to be

unaware of the alleged incident. They maintain that they

have been falsely implicated, though, there are

variations as regards the persons at whose instance they

have been falsely implicated and/or the reasons for the

false implication.

155. A remarkable aspect of the retrial must be mentioned

at this stage itself. It may be recalled that Zahira

Shaikh [P.W.41], the first informant, had complained

about the threats and about having been forced to depose

in favour of the accused because of the threats received

by her and her family members from the workers of the

Vishwa Hindu Parishad, Bharatiya Janata Party and had

made allegations against a local Municipal Corporator and

 61

a Member of the Legislative Assembly. It was Zahira at

whose instance, the Hon’ble Supreme Court of India had

ordered a retrial. Zahira was being helped by an N.G.O.

- Citizens for Justice and Peace – and the Secretary of

the said N.G.O. - [Link] Setalvad. Zahira, who had,

after the trial, come to stay in Maharashtra and had

sought police protection on the ground that she

apprehended danger at the hands of persons who were

interested in supporting the accused, after the

commencement of the retrial, left the police protection

and went back to Gujarat. After going there, Zahira

obtained police protection from the Gujarat Police. She

claimed that she had been earlier kidnapped and kept in

confinement by [Link] Setalvad. She even denied

having filed any appeal, or petition in the Hon'ble

Supreme Court of India, praying for retrial. She claimed

that her signatures had been obtained on some blank

papers by [Link] Setalvad. Her relatives – i.e.

brothers Nafitulla [P.W.31], Nasibulla [P.W.30],

mother Saherunnisa [P.W.40] and sister Sahera [P.W.35] –

also turned hostile and made similar allegations against

the said N.G.O. and its Secretary [Link] Setalvad.

Thus, a situation arose where the supposed victims of the

crime, who had supposedly approached the Hon'ble Supreme

Court of India with a grievance that no fair trial had

been held, that they had been threatened and prevented

 62

from deposing the truth and who had secured an order of

getting the matter retried on the basis of all these

assertions, started saying that they were having no

grievance about the previous trial, that they never had

any grievance in that regard, that they had not asked for

a retrial at all. They made statements suggesting that

the retrial had been wrongly ordered; and that the

Hon'ble Supreme Court was misled into believing that the

previous trial was vitiated. Zahira had, after the

original trial, appeared before several authorities,

including the National Human Rights Commission, Election

Commission, where she had been consistent in her

allegations that she had received threats due to which

she could not speak the truth during the trial. After

turning hostile, she either said that she had never made

any such grievance to any authority at all, or said that

whatever she stated before the concerned authorities was

a result of tutoring by some persons.

156. The matter is so bitterly fought that the process of

recording of evidence was marked by a number of

objections and a requirement of making elaborate notes in

respect of the objections.

157. [Link] Rao, the learned Spl.P.P., contended

that the same forces or powers that had earlier

 63

threatened Zahira and other witnesses not to depose the

truth before the Court, had again become active – rather

more active - after a retrial was ordered and had

tampered with the witnesses. It was contended that the

crucial witnesses had been bribed and also kept in

confinement or observation so as to keep a check on the

possibility of their again changing their minds. She

further submitted that in spite of Zahira [P.W.41] and

other witnesses again turning hostile, the prosecution

has succeeded in proving its case beyond reasonable

doubt. [Link] submitted that the occurrence

witnesses/eye witnesses who have supported the

prosecution case, are reliable and trustworthy; and that

their testimony should be accepted. She also submitted

that there was undoubted and voluminous other

evidence which corroborates the version of the eye

witnesses. She also contended that why Zahira [P.W.41]

and others from her family had turned hostile was clear

from the evidence on record; and that even from them,

facts supporting the version of the prosecution,

particularly relating to the occurrence, have been

elicited.

158. Shri Adhik Shirodkar, the learned Senior Advocate on

behalf of accused, on the other hand, contended that the

entire prosecution is false and motivated. It was

 64

contended, inter-alia, that Zahira and her family members

were actually telling the truth before the Court; and

that at the instance of the said N.G.O., a false colour

was given to the matter with ulterior motives; and that

the Hon'ble Supreme Court of India was misled in order

to secure an order for retrial. It was submitted that,

the investigating agency had been unfair to the accused;

and that the investigation is tainted and vitiated. It

is contended that the occurrence witnesses who have

supported the prosecution case, had been tutored; and

that there is a clear indication of the same from the

evidence on record. According to him, versions of the

witnesses who have supported the prosecution case are

contrary to their versions in their respective statements

recorded by the police during investigation. According

to Shri Shirodkar, all the witnesses have improved upon

their original versions, to implicate the accused, as a

result of tutoring.

159. Shri Jambaulikar, the learned Advocate for accused

nos.1 to 5, 10, 11 and 12, Shri [Link], the learned

Advocate for accused nos.13, 14, 15 and 20 and Shri

Mangesh Pawar, the learned Advocate for accused nos.16

to 19 and 21, have adopted all the arguments advanced by

Shri Shirodkar and have also advanced separate oral

arguments of their own.

 65

160. In addition to the oral arguments, memorandum of

written arguments [Ex.521/A] has been filed by Shri

Shirodkar on behalf of all the accused. Though these

written arguments/ submissions have been filed on behalf

of all the accused, Shri Bichu and Shri Pawar have still

thought it fit to file additional and separate written

arguments [Ex.522/A and Ex.523/A respectively] on behalf

of the respective accused whom they represent.

161. I have carefully gone through the entire evidence on

record. I have taken into consideration the arguments

advanced by the learned counsel, oral and written. I

have taken into consideration the ratio of decisions of

the Apex Court and of various High Courts cited by and

relied upon by the learned counsel in support of their

respective contentions.

162. Upon considering the prosecution case, the evidence

adduced, the defence of the accused and the arguments

advanced, the points which arise for my determination are

mentioned below together with the answers thereto, as

follows.

POINTS FINDINGS

1. Whether during the

 66

period from 27/02/2002 to

02/03/2002 and even

thereafter for some time,

the situation in Vadodara

city had become tense,

Yes.
resulting in various

incidents of communal

violence?

2. Whether during the

period from about 8.30 p.m.

or 9.00 p.m. on 01/03/2002

to about 10.45 a.m. on

02/03/2002, the Best Bakery

building, the 'wakhar' of

Yes.
one Lal Mohammad, the house

of one Aslam, as also some

vehicles belonging to the

owners of the Best Bakery

building, were set on fire

by a mob of rioters ?

3. Whether the mob of

rioters had surrounded the

Best Bakery building and had

attacked the building and

the inmates, inter-alia, by

Yes
throwing stones, bricks,
 67

soda water bottles,

petrol/kerosene filled

bulbs, bottles, etc. ?

4. Whether 7 persons –

i.e. 3 women and 4 children

– were burnt and died an

unnatural death as a result

of the burn injuries

sustained by them on account

Yes
of the fire that had been

set to the Best Bakery

building ?

5. Whether Nafitulla,

Nasibulla, Raees, Shehzad,

Taufel, Sailun, Baliram,

Ramesh, Prakash, Firoz and

Nasru were assaulted by

means of weapons – i.e.

swords, sticks, rods –

causing serious injuries to Yes

them, or any of them, in

the morning of 02/03/2002

by a mob of persons

or some persons forming it?

6. Whether the mob of

rioters robbed the ghee,

 68

maida, sugar, etc., that was

Yes
in the Best Bakery building

7. Did Baliram, Ramesh,

Prakash, Firoz and Nasru [or

any of them] die unnatural

deaths as a result of the

injuries sustained by them

Yes
on account of the said

assault ?

8. If the answer to Point The intention and/or

No.7 above be in the knowledge was the same as is

affirmative, then what was necessary or required for

the intention and/or making the act of causing

knowledge with which they, their deaths an offence of

or any of them, had been murder.

attacked?

9. Whether Kausarali and

Lulla were, or any of them

was, attacked and/or whether

they were, or any of them

was, put in the fire set to

the Best Bakery building by

the mob of the rioters or Yes

otherwise died an unnatural

death, either due to the

 69

fire set to the bakery, or

otherwise ?

10. Whether the mob of

persons that committed the

aforesaid acts in the nights

of 01/03/2002 and/or in the

Yes
morning of 02/03/2002, was

an unlawful assembly within

the meaning of Section 141

of the I.P.C?

11. If the answer to Point

No.10 above be in the

affirmative, then whether

the aforesaid acts committed

Yes
by the mob or persons in the

night and/or in the morning

amounting to various

offences, were committed in

prosecution of the common

object of the said unlawful

assembly?

12. Whether the accused Accused nos.2, 3, 5,

persons, or any of them, 10, 13, 17, 19 and 21 are

was, or were the member or not proved to be the members

members of the said unlawful of the unlawful assembly.

assembly at the time when Accused nos.1, 4, 11,

 70

the offences in question, 12, 14, 15, 16, 18 and 20

or any of them, were are proved to be the members

committed by the members of of the unlawful assembly.

the said unlawful assembly ?

13. What offence, if any, Accused nos.2, 3, 5, 10, 13,

have been committed by the 17, 19 and 21 are not proved

accused persons, or any of to have committed any

them ? offences.

Accused nos.1, 4, 11,

12, 14, 15, 16, 18 and 20

have committed offences

punishable under Sections

143 of the I.P.C., 147 of

the I.P.C., 324 of the

I.P.C. r/w 149 of the

I.P.C., 326 of the I.P.C.

r/w 149 of the I.P.C., 302

of the I.P.C. r/w 149 of the

I.P.C. and 188 of the I.P.C.

Accused nos.4, 11, 12, 15,

and 20 have committed

offences punishable under

Sections 435 of the I.P.C.

r/w 149 of the I.P.C., 436

of the I.P.C. r/w 149 of the

 71

I.P.C., 395 of the I.P.C.,

448 of the I.P.C. r/w 149 of

the I.P.C., 449 of the

I.P.C. r/w 149 of the

I.P.C., 450 of the I.P.C.

r/w 149 of the I.P.C. and

451 of the I.P.C. r/w 149 of

the I.P.C.

Accused nos.1, 14, 16

and 18 are not proved to

have committed offences

punishable under Sections

395 of the I.P.C., 448 of

the I.P.C. r/w 149 of the

I.P.C., 449 of the I.P.C.

r/w 149 of the I.P.C., 450

of the I.P.C. r/w 149 of the

I.P.C. and 451 of the I.P.C.

r/w 149 of the I.P.C.

Accused nos.11,12,

15 ,16 and 20 have committed

offences punishable under

Sections 144 of the I.P.C.

and 148 of the I.P.C.

14. What Order? As per the final order.

 72

R E A S O N S

As to Point No.1 :-

163. On this point, there is clear and undoubted

evidence. In fact, this point is not in dispute at all.

I shall, nevertheless, examine the evidence in that

regard so as to be able to appreciate the happenings in

proper perspective.

164. PI Shri [Link] [P.W.72] has stated that on

27/02/2002, a train was set on fire at Godhra railway

station. 'Kaar-sevaks' returning from Ayodhya who were in

that train, were burnt. The Commissioner of Police,

Vadodara city, had therefore apprehended that there would

be some law and order problem in Vadodara city. The

Commissioner of Police, Vadodara city, had called a

meeting of the police officers on 27/02/2002. The police

officers were asked to be vigilant and maintain law and

order. Specific instructions were given to depute police

personnel in communally sensitive areas. PI Baria

[P.W.72] took several precautions as the Inspector in-

charge of Panigate Police Station, with respect to the

area under his control. Preventive action was taken

against the persons who were involved in previous

communal riots. Twenty two points were identified as

 73

communally sensitive points and one armed A.S.I. and two

armed constables were deputed on every such police point.

Additionally, regular police patrolling in various mobile

vans was maintained. PI Baria has stated that

repeatedly, messages were being received from the Control

Room regarding the incidents of communal riots at

different places. Information about the incidents of

communal riots used to be received by the police from the

public also. According to PI Baria, during the period

from 0000 hours on 28/02/2002 to 2400 hours of

01/03/2002, 58 cases of crimes – all regarding communal

riots – were registered at the Panigate Police Station.

On 28/02/2002, 80 messages were given to Panigate Police

Station by the Control Room and on 01/03/2002, about

200 messages were received from the Control Room.

Additionally, 45 messages were received at the Panigate

Police Station from the public. All these messages were

relating to the communal riots and regarding the

incidents that were taking place in the area under the

jurisdiction of Panigate Police Station. The messages

that were being received, were regarding damage caused by

Hindu people to the properties of Muslims, such as shops,

factories, etc., and were also regarding the bodily

offences committed by the Hindus against the Muslims.

The incidents were of stabbing, setting shops and houses

on fire, etc. PI Baria [P.W.72] has also referred to a

 74

report received on 01/03/2002 at about 8.30 p.m. from the

Control Room where the mobs of Hindus and Muslims

consisting of 1500 persons on each side had assembled

behind Gajrawadi Police Chowki; and that stone

throwing was going on on both the sides. The police had

to resort to gas gun firing. Thus, the evidence of PI

Baria alone is sufficient to indicate that the atmosphere

in Vadodara city had become tense; and that various

incidents of communal violence were taking place during

that period.

165. PI Shri [Link] [P.W.74] has also described the

situation prevailing in Vadodara city during the relevant

period. PI Kanani has described how a serious law and

order problem arose on 27/02/2002. The news regarding

burning of Sabarmati Express train at Godhra and the

consequent deaths of 'Kaar-sevaks' was spread on

27/02/2002 in Vadodara city through various sources and

mediums. Because of this news, there was excitement,

resulting in the situation in the Vadodara city becoming

communally charged. The police authorities took all

the precautions and ordered 'bandobast' in consonance

with communal riots scheme. PI Kanani's[ P.W.74]

evidence shows that additional police force from outside

was brought in Vadodara city and to meet the requirement

of additional vehicles, private vehicles were hired,

 75

fitted with wireless sets, mikes, etc., making them

suitable for use by the police. PI Kanani's evidence

also shows that while the affected Sabarmati Express

train was required to pass through Vadodara railway

station, on the platform of Vadodara railway station, one

Muslim person was stabbed to death in a communal

incident. There were incidents of truck burning and

driver being stabbed, rickshaw driver being stabbed, etc.

Curfew was imposed by the Commissioner of Police,

Vadodara city, in almost every part of Vadodara. PI

Kanani [P.W.74] has stated that due to the publicity that

was received by the news regarding the incident of train

burning at Godhra, there was a feeling of anger and

revenge as a result of which, communal incidents started

and properties of isolated Muslims were targeted, damaged

and destroyed. PI Kanani has clearly stated that by the

evening of 28/02/2002, communal riots were spread in the

whole city. On 01/03/2002, there was a call of 'Bharat

Bandh' from 'Vishwa Hindu Parishad'. On that day also,

communal incidents took place on a large scale. Serious

communal incidents continued till 05/03/2002 after which

the situation came somewhat under control.

166. The evidence of these two witnesses is

supported by the evidence of other witnesses, including

the occurrence witnesses, but it is not necessary to

 76

discuss the same in this context. This is particularly

so because there is no challenge to this evidence and

this part of the prosecution case. The evidence of PI

Baria [P.W.72] and PI Kanani [P.W.74], which is not

challenged and is supported by other evidence, clearly

establishes that during the relevant period and even

thereafter for some time, the situation in Vadodara city

had become tense, that various incidents of communal

violence took place during this period; and that serious

law and order problems arose during this period.

Hence, point no.1 is answered accordingly.

As to Point Nos.2 to 8 :-

167. The evidence requiring determination of all these

points is so connected with one another that it would be

necessary to discuss the reasons for the determination of

all these points together. The same evidence would be

relevant and need discussion for determination of more

than one of the aforesaid points. Some of the points,

though framed for a need of separate and a specific

determination, require discussion on a large volume of

evidence covering almost the entire prosecution case.

The learned Advocates for the accused have raised certain

 77

general objections and contentions about the reliability

of the evidence of occurrence witnesses, impropriety of

investigation, conduct of the Investigating Officers,

etc., which issues are overlapping one another and

require discussion on a great volume of evidence. It

would be therefore not only convenient, but also

necessary to discuss the evidence for the determination

of all the points together, so as to maintain continuity

of discussion, and help viewing of evidence in proper

perspective. This will also avoid repetition of the

discussion.

168. The case of the prosecution rests mainly on the

evidence of 5 eye witnesses who have supported the

prosecution case. This is true with regard to the

happening of the incident which was spread over from the

night till the next morning also and not merely with

respect to the evidence to connect the accused persons

with the alleged offences, though with respect to the

happening of the incident, there is corroboration and

support to the various parts of the story from other

witnesses and even from the hostile witnesses. These

witnesses have been extensively cross-examined. As their

evidence touches almost all the aspects of the

prosecution case, it would be appropriate to discuss the

evidence of these 5 witnesses first. [Their evidence

which tends to connect the accused, or some of them, with

 78

the alleged offences, may, however, require a more

detailed and separate discussion]. In fact, without

first having a discussion on and the examination of their

evidence, the various contentions raised by the Advocates

for the accused, challenging the value on reliability of

the prosecution case in general, can not be properly

appreciated.

169. The evidence of the hostile witnesses is also direct

evidence and is required to be examined for whatever it

is worth. The legal principles laid down by the

authoritative pronouncements of superior Courts in the

matter of appreciating the evidence of hostile witnesses

clearly indicate that the evidence of hostile witnesses

is nevertheless substantive evidence and it is for the

Court to appreciate the evidence considering the entire

facts and circumstances of the case and to come to a

conclusion whether it is to be wholly discarded or

whether a part of it can be relied upon.

170. Before proceeding further to discuss the evidence, a

mention must be made of a video cassette [Art.R/27,

subsequently exhibited and marked as Ex.283] that has

been tendered in evidence. This video cassette was not

forwarded to the Court along with the chargesheet and no

mention of the same – as a document or object on which

 79

the prosecution would rely – was made in the police

report. The background and the manner in which video

cassette [Ex.283] came on record, is rather interesting.

A number of objections have been raised with respect to

the admitting of the said video cassette [Ex.283] in

evidence which shall be dealt with by me later at an

appropriate stage. For the present, I only observe that

the video cassette [Ex.283] is properly proved and is an

important piece of evidence which corroborates several

aspects of the prosecution case.

171. I shall, now, consider the evidence of each of the

occurrence witnesses/eye witnesses who have supported the

prosecution case, in depth. Certain general contentions

about the evidence of these witnesses which are common to

all, may, however, be separately discussed. Further,

the evidence of all these witnesses, so far it relates to

connecting the accused person with the alleged offences,

shall be separately and more meticulously examined later.

172. It may be kept in mind that none of these witnesses,

who are obviously very important witnesses, were examined

during the previous trial.

EVIDENCE OF SUPPORTING OCCURRENCE WITNESSES.

A] Taufel [P.W.26] :-
 80

173. The evidence of Taufel [P.W.26] shows that at the

material time, he was working in the Best Bakery and was

also residing there. That riots started on 28/02/2002.

Taufel has given the date of incident as '28/02/2002',

but it is an obvious mistake and no dispute on this has

been raised. There is no doubt that the alleged

incident took place from the night of 01/03/2002 till the

morning of 02/03/2002. Taufel [P.W.26] states that after

having their dinner, he along with Shehzad [P.W.28],

Raees [P.W.27], Sailun [P.W.32], Baliram and Ramesh, all

of whom were working with him in the Best Bakery, were

sitting on a cot [Charpaee] kept in front of the bakery.

That Kausarali – Saherunnisa's [P.W.40] brother and

husband of Taufel's sister -, one Prakash - another

person working in the Best Bakery - were also with them.

Taufel states that at that time, the rioters came there

holding mashals, swords and giving slogans 'maro, kato'.

According to him, the rioters were about 400 to 500.

Taufel and others started going upstairs. Kausarali

however, remained behind. Lulla [Aslam's (P.W.42)

brother] also remained behind. Kausarali and Lulla were

assaulted by swords. Both of them fell down. Taufel

and others lifted them and took them up - i.e. on

the first floor of the building. That the rioters then

set the house of Aslam [P.W.42] on fire. They also set

 81

on fire the vehicles belonging to the owners of the Best

Bakery. That wakhar of Lal Mohammad [P.W.36] was also

set on fire and then house of the owners of the Best

Bakery was set on fire. That after keeping Kausarali on

the first floor, Taufel and others went to the terrace.

The family members of late Habibulla Shaikh - the owner

of the Best Bakery - also went to the terrace of the said

building. Taufel then speaks of three women and four

children being on the first floor, apart from Kausarali

and Lulla. Obviously, this refers to the wives of Firoz

and Aslam, their children and Sabira.

174. Taufel has described the incident that was going on

throughout the night. That rioters were throwing bottles

filled with kerosene.

175. Taufel then states how in the morning the rioters

asked Taufel and others to come down and that how they

made them get down from the terrace by tying two wooden

ladders together. Taufel then speaks of the rioters tying

down the hands of the women and then the women being

taken in a room. Taufel then describes how, after tying

the hands and legs of the men, the rioters started

assaulting them; and that after assaulting them they

poured kerosene over their bodies and set them on fire.

 82

176. It was not asked to Taufel as to how he and others

survived, or how the incident ended, but Taufel has

stated that after the police had come, they were taken to

the hospital. Taufel then describes the injuries

sustained by him and also states that they were caused by

sword.

177. Taufel also states about Baliram, Prakash and Ramesh

being killed in the incident because of the assault on

them with swords which took place in the morning.

178. Taufel has identified the swords marked as

'Art.R/16' and 'Art.R/23' as the swords, with which he

was assaulted.

179. Taufel was unconscious when he was admitted in the

hospital. He was brought in casualty at 12.25 p.m. He

was admitted in D/4 Ward, Surgical 'F' Unit at 1.00 p.m.

Evidence of [Link] Robin [P.W.46] and [Link]

[P.W.62] shows that Taufel was discharged on 19/03/2002,

against medical advice.

180. The evidence shows that Taufel had sustained the

following injuries.

i] I.W. on Lt. occipital region – 10 cm x

2 cm x 1/2 cm.
 83

ii] I.W. on parietal occipital region 15 cm

x 2 cm x 1/2cm.

iii] Burns on both lower limbs.

181. Taufel went to his native place in U.P. after his

discharge from hospital. He was not examined in the

previous trial held at Vadodara. He came to Mumbai about

10 to 15 days before the date on which his evidence was

recorded.

182. Thus, Taufel's presence during the incident, apart

from not being challenged at all, is corroborated not

only by the evidence of other witnesses – including the

hostile witnesses – but also by the injuries sustained by

him. That he is a victim of the incident is clear. The

evidence of the happenings of the incident, as given by

Taufel, is convincing. It is, apart from being

corroborated by the evidence of other witnesses, also

supported by the circumstances sufficiently proved.

183. This is the substance of the evidence of Taufel, so

far as the incident is concerned. The evidence of Taufel,

which seeks to connect some of the accused with the

alleged offences or is relevant in that context, may now

be seen.
 84

184. Taufel states that in the night he had seen, among

the mob of rioters, some persons who were known to him.

Taufel claimed that he would be able to identify those

persons, if he would see them, though he did not know

their names. Taufel also claimed that he could identify

the persons who assaulted him and the persons who asked

him to come down; and that some of them he knew well,

though did not know their names.

185. Taufel identified 7 accused [out of 17], by pointing

out towards them, in the Court. He identified Sanjay

Thakkar [Accused No.11], Ravi [Accused No.21], Dinesh

[Accused No.15], Bahadursinh @ Jitu [Accused No.12],

Shanabhai [Accused No.16], Kamlesh [Accused No.19] and

Suresh Vasava [Accused No.20]. Taufel has identified the

said accused, from among all the accused before the

Court, after making all of them stand in a row, at

randum. It may be observed at this stage, that the

accused persons were never made to occupy any fixed

places during the trial and they were never made to sit

in the Court hall according to the serial numbers given

to them in the case, or in any other fixed order.

186. A request was made by the learned Advocates for the

accused that the name of the accused who would be

identified and pointed out by Taufel should not be

 85

disclosed to him. It was submitted that the names of

such accused should not be uttered loudly. This request

was accepted. As such, the accused were not made to give

their names after being pointed out by Taufel, within his

hearing. The names of the accused identified by Taufel

were not pronounced openly in the Court. The identity of

the accused pointed out by him was ascertained not within

the hearing of Taufel.

187. Taufel has attributed roles to the accused persons

identified by him. According to him, Sanjay Thakkar

[accused no.11] was seen by him in the morning; and that

he had tied the hands and legs of Taufel and others after

they had get down from the terrace. Regarding Ravi

[Accused No.21], Taufel states that he had seen him in

the morning; and that he was making Taufel and other

victims get down from the terrace. Regarding Dinesh

[Accused No.15], Taufel claims to have seen him in the

night with a sword and mashal. Taufel states that he was

shouting and giving slogans. Jitu [Accused No.12] was

seen by Taufel in the night coming running towards Best

Bakery by holding mashal and sword in his hand.

Shanabhai [Accused No.16] was, according to Taufel,

making Taufel and others get down from the terrace in the

morning, had tied hands and had thereafter, started

assaulting. Kamlesh [Accused No.19] was seen by Taufel

 86

in the morning, standing near the bakery; while Suresh

Vasava [Accused No.20] was seen by Taufel in the night,

coming running towards the bakery holding mashal and

sword.

188. Taufel was extensively cross-examined by the

Advocates for the accused. He was cross-examined

extensively with respect not only to the identification,

but about the topography, the happening of the incident

itself, etc.

189. The purpose of the extensive cross-examination

regarding the topography of the Best Bakery building is

difficult to understand and at any rate, nothing which

would affect the prosecution case, has been elicited

through the cross-examination.

190. It may be observed at this stage, that some of the

challenges to the evidence of the occurrence witnesses

who have supported the prosecution, are on grounds which

are common to all of them. It is contended that these

witnesses have come specifically to depose in this case;

and that they had come to the Court, not on being served

with a summons issued by the Court or because of the

information given by the police, but at the instance

of highly interested agencies. It is contended that

 87

these witnesses are highly interested in the prosecution;

and that community interest is involved in the matter.

Suggestions in respect of some other witnesses, [though

not in respect of Taufel], have been given that they have

been tutored by Smt. Teesta Setalvad, the Secretary of

the organization 'Citizens for Justice and Peace' who

were instrumental in securing an order of retrial of the

case. Since these and some other contentions raised on

behalf of the accused by their learned Advocates are

common to all the witnesses, it would be convenient to

discuss all of them together at a later and appropriate

stage. For the present, only the contentions which are

raised with reference to the individual witnesses, may be

taken into consideration.

191. A contention about the impossibility on the part of

the supporting eye witnesses to view or see the mob or

any persons therein, because of lack of light, darkness,

smoke, etc. has been raised. A contention about the

impossibility on the part of the supporting occurrence

witnesses to have seen the mob, or some of the rioters,

on the basis of the topography of the place has also been

raised. As these contentions are general and common with

respect to all the supporting occurrence witnesses, I

think it proper and convenient to discuss the same later,

after having discussed the evidence of all of the

 88

supporting witnesses, rather than repeating the same

discussion with respect to the evidence of each witness.

At this stage, I only observe, that all these contentions

are without any substance.

192. Taufel is sought to be contradicted by referring to

his statement [X-18] recorded by the police during

investigation. It may be observed that even as regards

the other identifying witnesses, the basic challenge to

their evidence is by bringing on record the

contradictions in their evidence and their statements

recorded during investigation and also by pointing out

omissions to state certain facts which have been stated

by them in their respective statements to the police. In

that context, the authenticity of the police record also

needs to be discussed. This general aspect of the case

which is relevant for appreciating the entire evidence in

the case, shall be separately discussed. At this stage,

the discussion is being confined to the particular

alleged contradictions and/or omissions in the evidence

of Taufel.

193. In the cross-examination, it was asked to Taufel

whether he stated before the police that 'the bakery was

closed in the evening'. According to Taufel, he did state

so to the police. On this, Taufel is sought to be

 89

contradicted by the evidence of PI Baria [P.W.72] who

states that Taufel had not stated to him, when his

statement was recorded that the bakery was closed 'in the

evening'. The omission sought to be highlighted is in

respect of mentioning about the bakery being closed 'in

the evening'. There is no omission to state that 'the

bakery was closed', but what is omitted to state is that

'it was closed in the evening'. Such 'omission' is

totally insignificant and immaterial. Apart from this,

what is interesting to observe is that it is not as if

Taufel had stated in the examination-in-chief about the

bakery being closed in the evening. This subject was

introduced in the cross-examination by asking Taufel

whether the bakery was closed and when he said that it

was closed, by adding that it was closed in the evening,

immediately the so called omission which relates only to

'in the evening' has been brought on record. It is a

feature of this trial that the version of most of the

witnesses and reliability of evidence is sought to be

challenged mainly by showing it to be in variance with

the statements recorded during investigation and/or the

statements made during the previous trial. The

reliability of the police record of the statement of

witnesses is entirely doubtful in this case, as discussed

elsewhere in depth, in this judgement, but that apart,

the omission to state that the bakery was closed in the

 90

evening, the omission being confined only to 'in the

evening' is totally insignificant. I can not help

observing that even if there would be an omission to

state that bakery was closed, without anything more

still even that would have been of no significance and

not worth bringing on record. Still, I have thought it

fit to discuss this at some length, as it serves as an

illustration as to the insignificance of several such

omissions brought on record, unnecessarily.

194. In an attempt to give added weight to the omissions

and contradictions, it was put to Taufel that the facts

of the case were more fresh in the mind of Taufel when

inquiries were made with him by the police in the

hospital, than the time when he gave evidence before this

Court, to which Taufel has replied that he had sustained

several injuries; and that at that time, he could not

state the facts properly. Judging by the injuries

sustained by Taufel which are reproduced above, it is not

possible to believe that Taufel was absolutely normal and

in a condition to narrate all the details to the police.

Apart from the injuries, the magnitude of the offence and

the length of time during which the incident was spread

over, it cannot be doubted that it must have been a

terribly frightening experience for Taufel and other

victims. Taufel and others were trapped throughout the

 91

night in the midst of a violent mob. Taufel had not only

suffered a brutal attack himself, but had witnessed one

on his colleagues. Some of the persons had died in the

night itself due to burns. This, coupled with nature of

serious injuries suffered by Taufel, certainly makes it

possible that at that time, he was not in a position to

state facts properly to the police. In fact, it is

rather impossible to think that he could state the facts

properly before the police, at that time.

195. By disliking the above answer given by Taufel, he

was asked in further cross-examination whether he stated

to the police that 'no inquiries should be made with him

at that time as he had sustained serious injuries; and

that his statement should be recorded, later on'. Taufel

answered that he did not state so. In my opinion, there

is no substance in the contention that is sought to be

made out by questioning in this manner. It is a fact that

Taufel had undergone a terrible experience and

undoubtedly he was in a traumatized condition.

Additionally, he had sustained very serious injuries on

his head. The police were unusually busy and occupied

with the law and order problem, apart from the fact, that

a large number of cases of offences committed as a part

of communal violence, were being recorded during the

relevant period. As such, how accurate and how

 92

detailed the statement made by such an injured person, as

Taufel was, can be anybody's guess. Thus, not much

importance can be given to the alleged omissions in the

statement of Taufel recorded during investigation.

Certainly, his testimony in the Court can not be

discarded or doubted on the trivial matters brought on

record by way of 'omissions'.

196. A controversy about the place where Taufel [and

others] were sitting at the time when the mob of rioters

came, has been raised by the learned Advocates for the

accused. There is a challenge in the cross-examination

of all the supporting witnesses, as to the place where

they were sitting at the material time. This challenge

being common to the evidence of all these witnesses, it

would be convenient to consider the common attack on the

testimony of all of them together. At this stage, it

may only be observed that there is no substance

whatsoever in the contention that an 'improvement' has

been made by Taufel and all others, as regards the place

where they were sitting when the mob of rioters came.

197. In his evidence, Taufel has stated that the mob of

rioters was of about 400 to 500 persons. In the cross-

examination he was questioned whether he stated before

the police that the mob was of 1000 to 1200 persons, to

 93

which Taufel stated that he did not state so. When

confronted with a portion in his statement [X-18 for

identification], where the figure of the persons in the

mob was given as '1000 to 1200', Taufel stated that it

might be correct. PI Baria [P.W.72] who recorded

statement of Taufel was questioned about it and Taufel's

statement that the mob was of about 1000 to 1200 persons

has been brought on record by way of a contradiction. No

importance can be given to such contradiction

particularly because Taufel does not rule out the

possibility of the mob being of 1000 or 1200 persons.

Secondly, and more importantly it is very difficult to

estimate the number of the persons in the mob and even

that the mob was of 1000 to 1200 persons is also a guess

of the concerned witnesses. Nothing turns on the precise

size of the mob and what is relevant is only that it was

a large mob.

198. While attempting to bring on record

contradictions/omissions - one wonders – whether at times

the learned Advocates for the accused have overlooked the

relevance and the object of bringing such contradictions

and omissions on record. The omissions and

contradictions are brought on record so as to discredit

the version of the witnesses. It is based on the logic

that a person who makes different statements on the same

 94

subject, on different occasions, may not be worthy of any

credence. If a witness is making an improvement in his

evidence to support the case which he intends to prove

and when such statements containing improvements were not

made on a previous occasion, the veracity of a witness

may be doubted. Here, the contradiction in the number of

persons forming the mob [which number is not based on

counting, but on a guess made from the size of the mob],

is absolutely insignificant to suggest that Taufel is

deliberately giving a wrong figure of the persons in the

mob as 400 to 500. As such, no importance can be given to

the alleged contradiction.

199. An 'omission' to state before the police that he and

others were sitting on a cot put in front of bakery has

been brought on record. Really speaking, this has no

separate existence from the 'contradiction' that 'he and

others were upstairs', which has been brought on record.

Apparently, this is done in an anxiety to increase the

number of alleged 'omissions' and 'contradictions' rather

than attempting to affect the substance of the version or

the story put forth by the witness. In any case, this

contradiction and omission which is to be used in support

of the contention of the witnesses making improvements

regarding their place of sitting, has – as shall be

discussed later - no substance, whatsoever.

 95

200. Taufel's version before the Court that the rioters

came there holding mashals and swords and giving slogans

'maro' 'kato' was sought to be contradicted by bringing

on record that he did not state before the police, that

the rioters came there holding mashals and swords. It

has been brought on record through PI Baria that Taufel

did not state so before him. I find that though no

specific statement as was put to PI Baria and to Taufel,

was made by Taufel during investigation, there is

absolutely no value to the failure to make such a

statement. It is a matter of regret, that the concept of

omissions is apparently not properly comprehended by the

learned Advocates for the accused. An omission which

amounts to contradiction by reason of it being unable to

stand alongwith the version given in the Court is what

is relevant and significant. Now, here, Taufel has

clearly spoken about the rioters assaulting him with

swords. It would be absurd to say - when Taufel speaks

of rioters assaulting with swords - that his omission to

state that 'they came there with swords' has any value.

Obviously, the rioters had swords with them. When that

they had swords is clearly stated by Taufel, pointing out

this omission to state that they came with swords, is

rather strange, because there is no challenge to the

story of assault by sharp weapons, which even otherwise,

 96

cannot be doubted. As regards the mashals, it is true,

that there is no mention in Taufel's statement before the

police. However, since he has spoken about the rioters

setting the Best Bakery building and other places on

fire, there is every likelihood that he did not feel it

necessary to specifically mention that the rioters were

holding mashals. There is also every possibility that PI

Baria did not find it very important to specifically

record that they came with mashals. No doubt on the

version of the prosecution can be thrown, even if it is

held that the failure to state so specifically to the

police, is established.

201. An attempt has been made to prove omission on the

part of Taufel to state to the police that 'we [he and

others] started going upstairs'. Taufel's [P.W.26]

general statement that because of the injuries sustained

by him, he is not aware as to what was stated by him to

the police at that time cannot be ignored in the context

of the omissions and contradictions attributed to him.

This aspect has already been discussed earlier. However,

even without this general aspect and in the context of

this particular 'omission', it may be observed that the

attempt is not very proper and in any event, is of no

use. It is already brought on record that the version

advanced by the witness before the police was that he was

 97

'upstairs'. Since the version in the police statement is

to the effect as if the witness was already upstairs

[which version has been brought on record by way of a

contradiction], it is meaningless to bring the omission

to state that 'we started going upstairs' on record. A

person who stated before the police of his already being

upstairs, would have no occasion to state before the

police that 'he started going upstairs'. This approach,

in my opinion, is indicative of the failure to comprehend

the concept of 'omissions' and 'contradictions' and the

significance of bringing them on record.

202. Taufel has been cross-examined also as regards what

happened to Kausarali and Lulla. It appears to me that

what exactly happened to Kausarali and Lulla is not very

clear from the evidence. This subject needs to be

discussed with reference to the evidence of all the

relevant witnesses. Therefore, instead of discussing the

evidence of Taufel on this aspect with particular

reference to his cross-examination at this stage, it

would be appropriate and at any rate, more convenient

to discuss the same along with the evidence of all other

witnesses on this subject.

203. Taufel [P.W.26] initially stated, when put to him in

the cross-examination, that he did not know the names of

 98

the daughters of Habibulla. However, immediately

thereafter, he stated that he knew the name of Zahira

Shaikh out of Habibulla's daughters. Earlier, he had

said that he knew the name of Sabira – who died in the

incident. Taufel [P.W.26] then stated that he came to

know the name of Zahira Shaikh about 2 to 3 months after

the incident – i.e. the riots. He was then questioned as

to whether he stated before the police that Zahira had

already lodged a complaint with the police regarding the

matter. When the witness denied having stated so, he

was contradicted with the portion to that effect from his

statement [X-18 for identification]. PI Baria [P.W.72]

states that Taufel [P.W.26] did state before him

accordingly. The relevant portion from Taufel's

statement [X-18 for identification] has been marked as

Ex.359. However, here again, the object behind bringing

this contradiction on record is difficult to comprehend.

Whether he stated before the police that Zahiraben had

lodged a complaint with the police, was asked to him in

the cross- examination and after his answer that he did

not state so, he was confronted with the relevant part of

his statement to show that he did state so. Thus, a

version has been obtained from the witness merely for the

purpose of contradicting him. Even otherwise, whether

Zahiraben had lodged a complaint with the police, was a

matter to be stated by the witness to the police,

 99

requires thinking. That Zahiraben had lodged a complaint

was known to the police, and PI Baria [P.W.72] himself

had recorded it. It would be, therefore, difficult to

understand what would be the occasion for Taufel [P.W.26]

to state so specifically to the police when it was a fact

known to the police already, to the knowledge of Taufel.

In any event, assuming that such contradiction exists,

what is the effect of that? That Zahira lodged complaint

with the police is not sought to be established by

Taufel's evidence. In fact, Taufel, as already observed,

did not state this at all, till he was specifically asked

about it. Even then, he said that he did not state so.

Since Taufel [P.W.26] had neither stated before the

Court, nor admitted having stated to the police that

Zahira had lodged a complaint with the police, and since

it appears to be the case of the accused that Zahira had

not lodged the complaint with the police at all,

contradicting Taufel [P.W.26] and bringing on record that

he had told the police about Zahiraben having lodged a

complaint with the police, is an exercise, the logic

behind which is difficult to understand. The learned

Advocates for the accused are certainly not interested in

trying to show that Taufel [P.W.26] indeed stated so

before the police, with the object of making the truth of

that, statement of Taufel to be believed, because it is

their case that Zahira had not lodged any complaint at

 100

all. Proving Taufel's statement to the police to that

effect, exhibits an aimless attempt to show differences

in the record, wherever they appear without understanding

their significance and without being desirous of

challenging a particular version. Fortunately for the

accused, 'proving' the said statement of Taufel does not

damage their case. It is because, I do not think it

likely that Taufel [P.W.26] would have stated to the

police in that condition, that Zahira had already lodged

a complaint, a fact known to the police to the knowledge

of Taufel. [If he indeed made the statement, the fact

that it was known to the police would naturally be known

to him.]

204. There is some discrepancy in the evidence of this

witness as to whether he knew that the name of one of the

daughters of Late Habibulla was Zahira and as to when he

came to know this. Though this discrepancy or infirmity

in his evidence, is not felt important or relevant by the

learned Advocates for the accused, I think it deserves to

be given more thought than to the so called 'omissions'

and ‘contradictions' emphasized by them, in judging the

veracity of Taufel. After a careful consideration of

Taufel's evidence in this regard, it appears to me that,

that he knew Zahira by name since prior to the date of

incident, is correct and his statement that he had come

 101

to know it as he was working in bakery, is to be

accepted. The other contradictory statements to the

effect of his not knowing name of Zahira appear to be

incorrect and resulting from some confusion which the

witness apparently had in mind as to the purpose or the

object of the questioning. This discrepancy does exist in

his evidence, but the same is not very material in my

opinion.

205. The omission on the part of Taufel [P.W.26] to state

before the police that first, the women got down; and

that they were Zahira, her mother and the mother's

mother, has been brought on record. However, in my

opinion, this omission is insignificant and immaterial.

Taufel's statement that the women who got down, included

Zahira's mother's mother, is obviously wrong and the same

is contradicted clearly by other evidence on record.

However, no motive of deliberately making this false

statement can be attributed to Taufel [P.W.26], as there

is certainly no advantage gained by him or by the

prosecution by saying so. This mistake appears to have

been caused on the basis of the wrong perception which is

inevitable in such cases where a ghastly incident,

spreading over a long period and involving a number of

victims and a great number of offenders, has taken place.

 102

206. An omission to state before the police that the

rioters tied the hands of the women, has also been

brought on record. PI Baria [P.W.72] stated that

Taufel [P.W.26] did not state so but this is his

inference and not what he remembers. PI Baria has

inferred this, from the way, in which the statement of

Taufel is recorded. PI Baria's evidence shows that what

Taufel stated is recorded as 'amara baddhane' - i.e. 'of

we all' - and according to PI Baria, had Taufel stated

about women, PI Baria would have written as 'amara

baddhane ane striyone'. It may be observed that the

version that hands of the women were tied down, cannot be

entirely discarded so as to infer that they were not

tied. There is no evidence to infer such a negative. As

regards men, Taufel has stated about the rioters tying

their hands and legs and as regards women, he has stated

only about tying their hands and taking them in a room.

It would be incorrect to imagine that such happening did

not take place with respect to any woman or women, and

disbelieve Taufel. In any event, whether this has indeed

happened and not told to the police, or told and not

recorded by them in a manner to make it clear, or it had

not happened at all; this infirmity in the evidence of

Taufel is not material at all.

207. Taufel [P.W.26] has stated that he had sustained

 103

injuries on the backside of his head, on both the sides

of his chest, left arm, that his right leg was burnt,

that a blow of sword was given on his left leg also. The

omission to state before the police that a blow of sword

was given on his left leg, is brought on record. This is

totally insignificant in my opinion. When Taufel

[P.W.26] has described the injuries sustained by him, the

omission only with respect to stating that a blow of

sword was given on his left leg, has got no significance

at all. Taufel has not specifically stated that any

particular injury was caused to his leg, except the burn

injuries. The fact that indeed he had sustained injuries

on vital part of the body, is undisputed. Taufel had no

false reason for mentioning that a blow of sword was

given on his left leg, particularly when he has not

attributed the blow to a particular sword or a particular

accused. As such, I am inclined to believe Taufel

[P.W.26], when he states that a blow of sword was given

on his left leg. That he did not state so to the police,

is insignificant.

208. An omission to state that the rioters poured

kerosene over the wooden sticks over the bodies of Taufel

and others and set them on fire, has been brought on

record to the extent that Taufel did not speak about

'kerosene being poured'. The way in which the

 104

omission has been put, indicates that, putting sticks

over the bodies and setting Taufel and others on fire, is

not what constitutes the omission but failing to mention

pouring of kerosene over the wood, is what the omission

consists of. This omission is totally insignificant and

immaterial, in my opinion. Whether Taufel did not state

it to the police, or that he did state and it was not

recorded by the police [which possibility also cannot be

ruled out], it is immaterial. In the whole happenings,

'pouring of kerosene', by itself, was not very

significant at all.

209. Taufel [P.W.26] has been questioned in the cross-

examination about the length and width of the terrace,

which details he could not give.

210. Taufel has admitted in the cross-examination that

he and others were terribly frightened on noticing the

rioters coming with 'mashals' and weapons. He has

accepted the suggestion put to him in the cross-

examination that he was terribly frightened and was

wondering how he would be able to save himself. On this,

it is contended that Taufel would not have been in a

position to notice the happenings. I am not impressed by

this contention. Though a witness may be terribly

frightened, he may still be able to observe the

 105

happenings. In the instant case, this is more so because

the happenings were spread over throughout the night and

even the morning. Moreover, the very basis of the

supposition that fear will affect the powers of

perception adversely, is not supported by any scientific

data. On the contrary, experience shows that powers of

perceptions are greatly increased during a fearful

incident. As this point is raised with reference to

the evidence of all the occurrence witnesses, I think it

proper to have a more detailed discussion on the effect

of fear on the powers of perception at a later stage

while dealing generally with the evidence of

identification.

211. Taufel [P.W.26] was then questioned – rather

improperly in my opinion – about how many bottles filled

with kerosene were thrown by the rioters upstairs towards

the victims. He was asked whether he could give the

number of such bottles approximately, whether they were 2

to 3, 5 to 10 or 10 to 20. He was asked whether the

bottles were in small numbers or in big numbers. Taufel

has expressed his inability to say so and thereafter, a

suggestion was given to him that it was because he was

scared at that time, which suggestion has been accepted

as correct by Taufel. Taufel has also admitted that

since the bottles were coming from the side of the road,
 106

he and others remained on the other side of the terrace

as far as possible so as to, as far as possible, away

from the side from where the bottles were coming. Based

on this admission, it is contended that therefore, he

would not be able to see the rioters. I am not impressed

by this contention. When the incident was going on

throughout the night and though it is stated that the

throwing of bottles was going on continuously throughout

the night, it is not possible to hold that during the

period of whole night, Taufel and others would have no

occasion to see even some of the persons in the mob, even

for a short while, or for some period.

212. In the course of cross-examination, Taufel stated

that out of the 7 accused identified by him in the Court,

4 were known to him previously – i.e. since prior to the

riots. Now, this would mean by implication that he did

not know the remaining 3 prior to the riots. This was

inconsistent with the claim of Taufel, made in the

examination-in-chief, that he knew all the accused

identified by him since previously. Taufel has, however,

immediately corrected himself and stated that he knew all

the 7 persons since previously. Taufel was then cross-

examined on the aspect of his previous knowledge of the

accused identified by him. Taufel has stated that he

knew them as he was working in the bakery and these

 107

accused used to visit that locality. A suggestion was

given to Taufel that when these persons came with the

mob, he identified them as they were already known to him

and this suggestion was accepted by Taufel as correct.

Taufel was questioned with regard to whether he stated

before the police the fact of some of the persons

in the mob of rioters being known to him in an attempt to

show that there exists such omission, but in reality,

there is no such omission at all. In fact, when Shri

Jambaulikar, the learned Advocate for accused nos.2 to 4,

wanted to put the question as to whether Taufel did not

state before PI Baria that 'some of the persons in the

mob of rioters were known to him', the matter was heard

and the question was disallowed as no such omission could

be spelt out from the statement [X-18 for identification]

of Taufel, recorded by PI Baria. The Court note in that

regard [pages 2368 and 2369 of the notes of evidence]

speaks for itself.

213. Taufel [P.W.26] has admitted in the cross-

examination that neither Kausar nor Lulla were assaulted

in his presence. Taufel has clarified that he had seen

the rioters talking to them, but not actually assaulting

them. In my opinion, this shows that the witness is

honest. He has avoided making any false claim of having

seen the rioters assaulting Kausarali and/or Lulla.

 108

214. It is again confirmed by Taufel in his cross-

examination, that 7 accused could be identified by him in

the Court, in spite of the time gap of about 2.1/2 years

because he knew them since previously. In my opinion,

the fact that the accused identified by him in the Court

were known to him previously, is satisfactorily

established.

215. Taufel has been questioned whether he could describe

the features of the accused persons identified by him, by

looking at them. Taufel has stated that he could not do

so; and that he could not state about their built,

height, etc. without looking at them.

216. Taufel was questioned as to whether he had given the

description of any of the accused to the police when his

statement was recorded and Taufel has admitted that since

he could not give the description of those persons, he

must not have given the same to the police.

217. On the basis of his inability to give description of

the accused persons, it is contended by the Advocates for

the accused, that the evidence of identification of the

accused by Taufel is not reliable. It is contended that

his inability to describe the features of the persons

 109

identified by him without looking at them, makes the

value of his evidence doubtful. I am unable to agree

with the learned Advocates. In my opinion, the ability to

give description is totally different from the ability to

recognize. Description of persons without looking at

them can be given if there is sufficient power of

visualizing it and also of expressing it. The

supposition that there exists a conscious and well

thought process of recognition to the effect that one

first visualizes the features and the relevant details of

another; and after visualizing the same in mind, compares

the features of one who is sought to be got identified;

and after comparing in his mind the similarity of the

features that he comes to the conclusion of both the

supposed two persons being one and the same, is not

correct. A person who lacks the power of visualization

and the power of describing, or either of them, would not

be able to give description, but, that because of the

lack of such power or powers, he would not be able to

recognize, is not a scientific or studied conclusion.

218. A man may be unable to give the description of

another by the reason of not having power of imaging, but

when he would see that person, he would be able to

immediately recognize him. Wigmore, in his Principles of

Judicial Proof [Published by Boston Little, Brown, and

 110

Company 1913], which is a compilation of authoritative

writings on the relevant subject, has referred to a

passage from [Link]'s psychology of legal evidence

[on pg.467 of Wigmore's book] and has quoted the said

learned author, who has advocated the aforesaid

proposition. The learned author [Link] has, while

explaining the point, pointed out that the lower animals

which have at best only a rudimentary power of imaging,

often display a marvelous power of recognizing; and that

it is often lost sight of that in memory we only know

retention through the fact of revival. The point

can be further illustrated by pointing out that a child

who may not be able to describe or may even not know the

relevant words or their meaning which may be necessary

for describing, easily recognizes his own toys or his

shoes, etc. Thus, resemblance of the matter is felt by

an individual; and that it does not depend on his ability

of imaging it before hand or visualizing it without

looking at that particular object. Thus, the evidence of

Taufel regarding the identity of the accused identified

by him as the culprits, can not be discarded or

disbelieved on the ground of his inability to give their

description to the police or to the Court.

219. Taufel's omission to state before the police

specifically that the wakhar that was burnt, was

 111

belonging to Lal Mohammad [P.W.36], has been brought

on record. According to Taufel, he did state before

the police that the wakhar in front of the Best Bakery

which was belonging to Lal Mohammad was set on fire by

the rioters. PI Baria, however, stated that Taufel did

not state so before him. Apart from my views about the

accuracy in general, of the police record of the

statements made by the witnesses during investigation

which shall be elaborately discussed later, in the

instant case, it may once again, be mentioned that the

object of bringing on record omissions and contradictions

has been lost sight of. Since there is no dispute on the

fact that the wakhar in front of Best Bakery was set on

fire; and that the said wakhar was belonging to Lal

Mohammad; and that the accused have nowhere challenged

this, whether Taufel stated it to the police or not, is

immaterial. It would only show that though true, Taufel

did not state it to the police. When the truth of the

version of Taufel about the rioters setting fire to the

wakhar in front of Best Bakery; and that it belonged to

one Lal Mohammad is not only not at all doubted, but also

not challenged, bringing on record such an 'omission' has

been futile.

220. After the cross-examination was over, Taufel

volunteered to make a statement before the Court. On

 112

being permitted to do so, he said that he knew the names

of four of the seven accused persons identified by him,

prior to the incident; and that due to fear, he had not

disclosed this fact earlier. He gave the names of the

said four accused as Dinesh, Shanabhai, Ravi and Jitu.

In view of this statement, the Advocates for the accused

were permitted to cross-examine Taufel further. It is

contended on behalf of the accused that giving of the

names of said accused as has been done by Taufel, is a

result of tutoring and an after thought. It is contended

that if Taufel was afraid of giving the names of the

accused earlier and that too, to the extent of telling a

lie to a specific question by the Court about the

knowledge of the names of the accused, why did he

thereafter, disclose this.

221. I have carefully considered the matter. In my

opinion, the evidence of Taufel can not be disbelieved on

this ground. The possibility that he was more scared of

specifically taking names of any accused, even when he

identified them in the Court, can not be ruled out. I am

not inclined to give much importance to the answers

elicited from Taufel, as to when he developed the fear

and when it had gone etc., in as much as, it would be

difficult for anyone to understand and/or to explain the

precise working of his mind, or the feelings in that

 113

regard. The question would be whether Taufel's reaction,

as has been explained by him, can be held to be an

impossible reaction on the part of any person, even if he

would be frightened. It is possible that by remaining

present before the Court on a number of dates, Taufel

became familiar with the Court atmosphere and also with

the method of recording of evidence. It is possible that

thereafter he understood its significance, and ventured

to disclose this aspect. It may be recalled, that

earlier Taufel had made a claim of knowing all the seven

accused identified by him in Court, since previously.

Then he had said that he knew four of them previously,

and then again, had said that he knew all the seven

since, previously. Apparently, when he spoke about the

knowing only four since previously, Taufel meant 'knowing

since previously, by name'. It appears that after being

somewhat accustomed to the Court atmosphere, Taufel

thought it necessary to offer clarification, removing the

confusion created by his previous answers, regarding

which probably he was feeling uncomfortable. It is

certainly possible that as the examination of this

witness was progressing, he was thinking of the effect of

the answers given by him during the earlier part of the

examination. It appears that after thinking, he felt the

necessity of offering an explanation. I am, therefore,

not able to disbelieve the statement of Taufel, that

 114

he knew the names of four of the accused as Dinesh,

Shanabhai, Ravi and Jitu since prior to the incident. I

am unable to hold that this disclosure which came from

Taufel, was a result of tutoring.

222. It may, however, be observed that the learned

Spl.P.P. has not asked Taufel to point out the said

four accused. The Advocates for the accused have not

made any attempt to get it checked whether Taufel was

indeed in a position to identify the said four persons by

their specific names. Shri Shirodkar, the learned Senior

Advocate, contended that after Taufel had disclosed that

he knew four accused by names, it was the duty of the

learned Spl.P.P. to question him further - as opportunity

was given by the Court to the prosecution - to fix the

identity of the said four, to which I am inclined to

agree. Having failed to do so, the prosecution has

deprived itself of the advantage that might have accrued

to it, in the matter of fixing the identity of the

accused persons more authentically by Taufel's pointing

them out by their names, in Court. However, that does

not mean that Taufel's earlier evidence gets weakened in

any way, on account of the failure of the prosecution

to do so. The Advocates for the accused also, for obvious

reasons, did not feel the risk worth taking in asking

Taufel whether he could point out those accused or not.

 115

In my opinion, in this peculiar position, the evidence of

Taufel stands as it is; and though it does not further

help the prosecution, it also does not weaken the

evidence earlier given by him.

223. Thus, on a consideration of the evidence of Taufel,

I find that there is nothing which discredits his

testimony. There is nothing to indicate that he is an

unreliable witness. It is a different matter that his

evidence regarding the identification of the accused

persons may require further and deeper discussion in the

context of the reliability or acceptability of the

identification evidence in general in this case, but what

needs to be observed at this stage, is that no

inherent improbabilities or infirmities which would make

me doubt the veracity of this witness, exist in his

evidence.

B] EVIDENCE OF RAEES KHAN [P.W.27]

224. Coming to the evidence of Raees Khan [P.W.27], he

has narrated the incident and the details regarding

occurrence as given by him, are absolutely consistent

with the evidence of Taufel and of other witnesses. He

has described how the incident took place; and that how
 116

the riots continued throughout the night, and how he and

others were made to get down from the terrace in the

morning.

225. After describing the incident, Raees has stated that

he could identify the persons who assaulted him and who

set on fire. Raees has also stated, he had sustained

injuries on his head due to assault by sword. According

to Raees, he had suffered 3 blows on his head, first by a

wooden stick and then by a sword. Raees has identified

the swords marked as Art.R/23 and Art.R/21 as the swords,

by which he was assaulted or at any rate, swords similar

to Art.R/23 and Art.R/21. The stick marked as Art.R/20,

was identified by him as the wooden stick by which he was

assaulted.

226. The medical evidence shows that Raees had indeed

sustained injuries. According to [Link] Robin

[P.W.46], there were following injuries on his person

when he was taken to S.S.G. Hospital and was examined by

her.

i) First to second degree burns on right

upper limb, left arm and on back.

ii) C.L.W. (on right parieto occipital

region, size 10cm X 2cm X scalp deep.

iii) 2 C.L.W.s on occipital region – out

 117

of these, one was 5cm X 0.5cm X 0.5cm

and the other was 2cm X 0.5cm X 0.5cm.

227. Interestingly, according to [Link] Choksi

[P.W.62], who treated Raees in the ward, Raees had the

following injuries

i) I.W. of 8cms X 2cms over the right

parietal occipital region,

ii) 4cms X 1cm I.W., over left occipital

region,

iii) 1cm X 1cm I.W., over left occipital

region.

in addition to burn injuries.

228. The injuries noted by [Link] Robin [P.W.46]

are obviously wrong. The evidence of Raees that he was

assaulted by a sword is in conformity with the Incised

Wounds on his person as noted by [Link] Choksi.

[Link] having treated him and observed him for a long

time. The evidence of [Link], as regards the

injuries, is certainly more reliable than the evidence of

[Link] Robin who had admittedly hurriedly examined him

in the emergency treatment department.

229. Raees was asked to identify the culprits from

amongst the accused before the Court. The accused were

 118

made to stand in a row at randum and not according to

serial numbers given to them, in the charge-sheet or in

the case. From out of the 17 accused before the Court,

Raees has identified accused no.18 - Shailesh Tadvi,

accused no.20 - Suresh Vasawa, accused no.15 - Dinesh

Rajbhar, accused no.16 - Shanabhai Baria and accused no.4

- Pankaj Gosai. According to Raees, accused no.18 -

Shailesh had tied hands and legs during the incident,

while the Accused No.20 was having a sword in his hand.

As regards accused No.15 - Dinesh, Raees has stated that

he too was having a sword and was assaulting. Even

accused no.16 - Shanabhai, according to Raees was present

with a sword in his hand.

230. A similar request as was made by the learned

Advocates for the accused in case of the identification

by Taufel, was made by them with respect to Raees also.

This was accepted. As such, the names of the accused

identified by Raees was not pronounced openly in the

Court and the identity of the accused pointed out by him

was ascertained not within the hearing of Raees.

231. The evidence regarding actual happening and details

of the incident as given by Raees, need not be discussed

here, as the same is very much consistent and in

consonance with the evidence of other occurrence

witnesses, as also the medical evidence and the evidence

 119

of witnesses from the fire brigade and police.

232. It may be recalled that a statement of Raees

[Ex.264] was recorded on 02/03/2002, by Abhaysinh

[P.W.66]. A contention has been advanced on behalf

of the accused, that this statement was actually the

First information Report; and that Zahira's statement

which is projected as the First Information Report

[Ex.136] is actually not the First Information Report, at

all. Since this aspect is stretched to such a length,

that it needs to be discussed separately, at length. For

the time being, I only record the conclusion to

which I have arrived at after considering all the

relevant aspects – viz. that this contention has no

substance whatsoever.

233. Raees was extensively cross-examined. In view of

the submission of the learned Advocates for the accused

that they did not dispute the occurrence, much of the

cross-examination of Raees which deals with the

topography, the place where wood used to be stored in the

Best Bakery, the items which used to be stored in the

bakery etc. has become redundant.

234. Raees was sought to be contradicted with the record

of his statements recorded by the police on 02/03/2002

 120

[X-19, later on marked as Ex.264] and his statement

recorded by PI Baria [X-20 for identification] on

04/03/2002.

235. Since Raees Khan stated that he peeped outside from

the Jali and saw that some persons had assembled there

with mashals and swords in their hands, he was asked

whether he told the police about peeping outside from the

Jali and seeing persons assembled with mashals and

swords. According to Raees, he did state so to the

police, but according to PI Baria, Raees did not state

so. This omission is thus brought on record. In my

opinion, it is totally immaterial. The question as to

from where Raees saw the mob of persons assembled was not

a crucial aspect of the matter at all, and there is

nothing to show that PI Baria had asked Raees about it.

What was important was the ability or opportunity to see

the mob and not from where it was seen. It is not worth

even suggesting – though emphatically and vehemently

contended by the learned Advocates for the accused –

that when the mob had assembled at Hanuman Tekdi and

was surrounding the Best Bakery through out the night,

the inmates of the Best Bakery had no opportunity to see

the mob or to see that persons had assembled. Merely

because Raees states that he peeped outside from Jali and

saw it, it does not mean that there is any special

 121

significance to the 'peeping outside from Jali'. The so

called 'omission' in the statement of Raees recorded

during investigation, is therefore, of no significance at

all.

236. In a similar manner, the omission to state that

Habibulla's daughters and wife were on the terrace has

been brought on record through PI Baria. According to

Raees, he did state so, but assuming that he did not

state so, since it is a fact which has not been disputed,

it is immaterial whether Raees stated so to the police

or not. The logic behind bringing on record 'omissions'

to state facts to the police – though undoubtedly such

facts are true or at least are not challenged at all – is

difficult to comprehend. How it would benefit the

accused is also difficult to understand. The object of

bringing on record 'omissions' and 'contradictions' by

referring to the record of the statement made by a

witness before the police during investigation, is to

make his version before the Court doubtful thereby. If a

witness states fact 'A' before the Court and has either

not stated it to the police, or has stated fact 'B' to

the police, whether the fact 'A' as stated by the witness

before the Court is true, would be the question that

would arise for consideration. Thus, it is to make the

Court doubt the truth of the fact 'A' that the

 122

'omissions' and 'contradictions' are brought on record.

To bring on record that the witness did not state even

the facts, which were true, to the police can lead to two

inferences. The first is, that the witness did not state

the facts properly to the police in which case, the

rigour behind the 'omissions' and 'contradictions' as the

case may be, goes away. The other conclusion would be

that the police did not record the statements properly;

and that the record made by them is unreliable which

again would take away, or at least greatly affect, the

value to be attached to the 'omissions' and

'contradictions' based on such record.

237. A question was asked to Raees whether he stated

before the police about 3 women and 4 children being in

the room below. It was made clear that the emphasis of

the cross-examiner while putting the question was, on the

figures 3 and 4. This omission – viz. to state the

figures 3 and 4 while stating that they were in the room

below - has been brought on record through PI Baria

[P.W.72]. This omission is absolutely insignificant and

immaterial. Further, since the fact that 3 women and 4

servants were in the room having already been duly proved

and being undisputed, bringing on record such omission,

is also meaningless.
 123

238. It was put to Raees that getting down from the

terrace was difficult because there was no way of getting

down, which suggestion has been accepted as correct by

Raees. It was thereafter put to him that had two ladders

not been joined together, they [Raees and others] could

not have got down from the terrace. It is thereafter

that a question was put to Raees as to whether he

thought the fact of joining of the ladders to be

significant and whether he stated it before the police on

04/03/2002, to which Raees replied in affirmative.

Regarding it not being found in his statement dated

04/03/2002, Raees explained that he had stated the facts

correctly, but that he did not know what was recorded as

the statement was not read over to him. This omission –

viz. Raees and others being made to get down by a ladder

made by joining two ladders – has been brought on record

through PI Baria, who states that Raees did not state so

before him. I am not inclined to give any importance to

this omission. It is because Raees and others came down,

is what is significant and not that they came by a ladder

made by joining two ladders. In fact, that they came

down by ladder, cannot be disputed at all and whether or

not it was a single ladder or had been made by

joining two ladders, is immaterial. It is not the case

of the learned Advocates for the accused that Raees is

lying about the manner of coming down or that Raees did

 124

not come down by a ladder made by joining two ladders

and no such contention is advanced. If there would be a

challenge to the evidence of Raees and others on this

aspect, then, a claim of the omission to state about

joining of ladders being material could be made, and not

otherwise.

239. Raees Khan [P.W.27] has been questioned as to

whether the facts that the hands and legs of Raees and

others were tied; and that the ladies were being taken

towards bushes and the rioters started assaulting Raees

and others with swords and sticks; and that they put

lakdi on their person and set them on fire, were stated

by him before the police. Raees has stated that he could

not say, whether he stated these facts to the police on

02/03/2002, in as much as, he had no proper recollection

as to what he stated before the police on that day.

240. Raees has been questioned by Shri Jambaulikar, the

learned Advocate for accused nos.2 to 4, during the

cross-examination, as to the place where he was residing

at Mumbai, as to when did he come to Mumbai, etc. An

attempt was made to show that Raees is along with some

others who are taking keen interest in the prosecution.

It is contended that Raees is lying with respect to

certain details about his coming to Mumbai and leaving

 125

Raibareli, etc. It is pointed out that Raees had

previously stated that after going to Raibareli from

Vadodara after the riots and before coming to Mumbai, he

had not left Raibareli at any time, but later on, Raees

admitted that he was, during this period, for some time,

working at Ulhasnagar in a country liquor bar. Raees has

explained that his earlier statement was not correct and

that he stated about not leaving Raibareli because he

had not paid any particular attention to that aspect.

In my opinion, this is of no consequence at all. Even if

it is assumed that Raees wanted to suppress the fact of

his having worked in a country liquor bar, the same is

understandable. What is significant is that Raees made

no attempt to deny that, when put to him. I do not think

that this post-incident conduct of Raees, or his having

worked at Ulhasnagar in a country liquor bar can

discredit his testimony about the incident in any manner.

Raees has admitted that he came to know of the date on

which he had to appear in the Court and give evidence,

from [Link] Setalvad, to whom he referred as 'Teesta

Madam'. The cross-examination of Raees in that regard is

rather interesting. Raees has stated that he knew

Teesta Madam since about 10 to 12 days before his

coming to this Court; and the she was introduced to him

by one Rahimbhai. Raees stated that Teesta Madam had

helped him; and that she helped him for bringing him here
 126

to Mumbai. It was put to him that 'had the help from

Teesta Madam not been available, Raees might not have

been able to reach the Court', which has been accepted as

correct by Raees. Raees has further admitted that he was

in contact with Teesta Madam, after he came to know her;

and that he used to talk about this case also. After all

these admissions, it was suggested to him that as he had

forgotten about the incident, [Link] Setalvad used to

explain to him what was the case, what had happened,

etc., which suggestion has been denied by this witness as

false.

241. I have carefully considered this aspect. In fact,

the alleged tutoring done by [Link] Setalvad to the

occurrence witnesses who have supported the

prosecution case, has been made a common ground of attack

on the evidence of all these witnesses and is being

separately discussed. I am unable to accept that the

evidence of Raees and the identification of the accused

made by him is unreliable on the ground that he had

discussion with [Link] Setalvad. Why and how

identifying witnesses cannot be disbelieved merely

because they are in touch with [Link] Setalvad [who

is interested in the present prosecution] has, as

aforesaid, being discussed separately.

 127

242. When questioned in the cross-examination, Raees has

stated that he had no occasion to see any of the accused

persons identified by him, after the incident and before

he saw them in the Court. However, Raees has clarified

that he used to see them in the locality prior to the

incident. This clarification has been given by way

of a voluntary statement made by Raees. That he knew

them since prior to the incident, has come from Raees in

a natural way, when the topic of the occasions to see the

accused was raised in the cross-examination. I do not

think that he is tutored in that regard. In other words,

the statement of Raees that he used to see them in the

locality prior to the incident, cannot be doubted,

particularly because the accused, it is clear from the

evidence, are indeed from the locality only, as shall be

discussed later in the context of reliability of the

identification evidence.

243. The statement that the accused were from the

locality, is not the result of tutoring, is further

apparent from the following.

Raees was questioned about the mob of 1000 to 1200

persons that had assembled and it was suggested to him

that he did not know from where those persons had come.

Raees, while denying the said suggestion, has stated that

they were coming from different directions; and that he

 128

could not say by which road they came. After this,

following question was asked to him.

Ques.: Can you say from which locality

they arrived ?

Ans.: They were from the locality only.

This answer has been given by Raees when his attention

was not on the point of the previous acquaintance between

him and the accused persons. The topic that was being

touched, was the directions, road or the locality from

which the rioters arrived, without touching the point of

previous acquaintance between Raees and some of the

rioters, but still, the above answer has been given by

Raees.

244. A suggestion was put to Raees that since he used to

see them [the accused identified by him in the Court],

he had become familiar with their faces, which suggestion

is accepted as correct by Raees. It has been brought on

record that Raees did not give the description of the

rioters known to him when his statement was recorded by

the police, but as discussed earlier, the inability to

give description is totally different from the ability of

recognition and the recognition or identification cannot

be doubted only on the ground of inability to give

description.
 129

245. In the cross-examination, Raees has plainly admitted

that he did not know who were the persons who set the

bakery on fire. Having stated about the rioters setting

the bakery on fire and having stated about the accused

being among the rioters, Raees could have easily

attributed the act of setting fire to the bakery to some

of the accused identified by him. This shows that he is

a truthful witness.

246. Raees was asked in the cross-examination that,

'would it be correct if claimed that the rioters poured

kerosene and petrol in the room where the ladies and

children were sleeping, and put that room on fire'.

Raees has replied that he could not say whether it is

correct or not. Raees was sought to be contradicted,

surprisingly, on this, by confronting him with his

statement [X-20 for identification] recorded on

04/03/2002 by PI Baria [P.W.72]. Raees, however, said

that he might have said something else and the police

might have recorded something else. Now, at this

juncture, it will not be out of place to comment on the

exercise undertaken by the cross-examining Counsel. It

can easily be observed that the version which was

sought to be brought on record by contradicting Raees, is

a version which increases the magnitude of the offence.

In spite of this being so, and in spite of the attention

 130

of Raees having been drawn to the fact that the record of

his statement made by the police shows so, Raees still

did not adopt the statement. This shows that he was

particular to ensure that he states only what was really

known to him and not what would suit to him or, to the

prosecution case.

247. Raees is, at another place, again cross-examined

with reference to his association with [Link]

Setalvad, with the object of showing that he has been

tutored. After going through the evidence of Raees on

this aspect, I think it possible that Raees is not

revealing the entire details of his meetings with

[Link] Setalvad. However, on that count, it is

not possible to come to the conclusion that the

identification of the accused, as made by him, is false

or that he had been tutored to do so. In any case, all

this shall be dealt with in details at an appropriate

place in this Judgement.

248. On a careful consideration of the evidence of Raees,

it is not possible to believe that he is an untruthful

witness. Rather he appears to be a positively reliable

witness. Raees, after the incident, had gone to his

native place. It is apparent from his testimony, that he

had not kept any track of the matter. He was not in

 131

contact with the local Muslims at Vadodara. Apparently,

he had reconciled himself to what had happened to him in

the riots and was looking forward to lead a normal life.

It is only after the retrial was ordered, and because of

the initiative taken by some social organizations, he

came in contact with this subject. His evidence fits in

properly with the facts which are otherwise sufficiently

proved and is in consonance with the other evidence on

record. The version of this witness is not at all shaken

in the cross-examination and the so called

'contradictions' and/or 'omissions' in his evidence are

even otherwise insignificant and immaterial, leaving

aside the aspect of unreliability of the police record

itself.

[C] EVIDENCE OF SHEHZAD KHAN PATHAN [P.W.28]

249. The third occurrence witness who has supported the

prosecution is Shehzad Khan Hasan Khan Pathan [P.W.28].

Shehzad Khan, it may be recalled, was working in the Best

Bakery and is a victim of the offences. Medical evidence

shows that Shezhad Khan had sustained the following

injuries :

i) I.W. on left fronto parietal, size

10cm X 2cm X 1cm,

[The certificate (Ex.167) shows the size to be 12cm X 2cm

 132

X 1cm. However, the same is not material.]

ii) I.W. on left post auricular region,

size 5cm X 1cm X 0.5cm,

iii) I.W. on behind injury at sr. [Link])

above, size 2cm X 1cm X 0.5cm,

iv) I.W. behind injury at [Link]. iii)

above, size 2cm X 0.5cm X 0.5cm,

v) 2 C.L.W.s on right temporal

occipital region, size 2cm X 1cm X

0.5cm,

vi) C.L.W. on chin, size 2cm X 0.5cm X

0.5cm.

250. He was brought to the hospital at 12.00 noon and was

examined by [Link] Robin. He was admitted in D-4

Ward of the surgical 'F' Unit where he was treated

and examined by [Link] [P.W.62]. He was unconscious

when he was admitted in the S.S.G. Hospital. His

statement could be recorded by PI Baria only on 6th March,

2002, as, before that, he was not in a condition to make

any statement. Shehzad Khan, it is apparent, had

sustained very serious injuries which had endangered his

life. He was discharged from the hospital on 16/03/2002.

251. I do not think it necessary to discuss his evidence

elaborately, as regards the occurrence. It is because the

 133

happenings and the occurrence as per the prosecution case

is not in dispute at all. It would be sufficient to

observe at this stage that Shehzad's version about the

incident is in conformity with the evidence of other

occurrence witnesses.

252. Shehzad has stated that he and others were sitting

in front of the bakery on a cot in the evening after

having food; and that at that time, rioters came with

swords and mashals.

253. Shehzad's version about Kausarali and Lulla and how

they were assaulted etc. shall be dealt with while

discussing the entire evidence showing as to what

happened to Kausarali and Lulla.

254. Shehzad does speak about the rioters setting on fire

vehicles of the bakery. He does speak of rioters

throwing on the terrace, bricks, stones, kerosene and

petrol etc. He does speak of the presence inter-alia of

Nafitulla's wife among others.

255. Shehzad has given the details as regards the morning

incident. He has described how they got down and how

thereafter, the ladies were taken to the jungle by

the rioters. According to Shehzad, Sanju [identified by

 134

him as accused no.11 before the Court], tied his hands

and took away the amount of Rs.5000/- that was with him.

Shehzad has identified the following accused by

specifically pointing out to them – i.e. accused no.12 -

Bahadursingh @ Jitu, accused no.11 - Sanju, accused no.16

- Shanabhai and accused no.15 – Dinesh. He has pointed

out eight others also, but he has not been able to give

their names. These accused are accused no.20 - Suresh

Vasava, accused no.1 - Rajubhai Baria, accused no.2 -

Mahendra Jadhav, accused no.4 - Pankaj Gosai, accused

no.14 - Jagdish Rajput, accused no.18 - Shailesh Tadvi,

accused no.19 - Kamlesh Tadvi and accused no.21 - Ravi

Chauhan. Out of these, Shehzad stated that he knew the

name of the accused no.20, but that, at that time, [when

he pointed him out in the Court] he was not able to

remember it.

256. Thus, Shehzad has identified in all 12 accused, out

of which, accused nos. 11, 12, 15, 16 and 20 were known

to him by name. [though he could not give name of the

accused no.20 at the time of giving evidence] The other

7 accused were not known to him by name. However, he has

said that all these accused were having danda or sword

with them and all were shouting 'musalmanone mari nakho'.

257. Shehzad has also identified the weapons marked as

 135

Art.R/18, Art.R/19 and Art.R/21 as the weapons which the

rioters were carrying.

258. Shehzad was called as a witness in the previous

trial held at Vadodara. He was not actually examined

there, as he was announced to be of 'unsound mind' by the

Public Prosecutor in-charge of the case. Shehzad has

stated about this – viz. of he being called for giving

evidence, but his being declared as 'of unsound mind',

and being driven out of the Court.

259. In the cross-examination, at the initial stage

itself, it was put to Shehzad that after his statement

was recorded by the police, the police asked him 'whether

it was his statement'; and that Shehzad said that 'it was

his statement'. Shehzad denied this as incorrect.

Shehzad was, then, confronted with a portion in his

statement [X-21] to the effect 'these are my facts', when

Shehzad said that the police might have wrongly recorded

it. This portion, marked as A/142, was shown to PI Baria

[P.W.72] when he said that Shehzad did state before him

accordingly and then the portion has been marked as

Ex.363. As observed in the context of the evidence of

other eye witnesses, it is difficult to understand the

propriety of contradicting a witness on this aspect.

'These are my facts' is not the version of the witness

 136

about the happenings. In any case, though PI Baria had

spoken about Shehzad having said so, I am not inclined to

believe him. It is clear from PI Baria's evidence [as

shall be discussed later] that it was his practice to

write this at the time of concluding the record of a

statement, without the witness saying so. It is not a

part of the narration of the witness at all.

260. In the cross-examination, Shehzad stated that he was

not fully conscious when his statement was recorded. On

this, he was asked 'whether he told to the police that he

was not fully conscious and therefore, his statement

might not be recorded', to which Shehzad replied that he

did not state so. In my opinion, the suggestion implicit

in putting of the question is absolutely incorrect.

By putting the question, the cross-examiner seems to have

expected of a person who is not fully conscious, to tell

the police when they would come to him for making

inquiries that he was not fully conscious and therefore,

his statement should not be recorded. This presupposes

the existence of a right to refuse to state before the

police, and its awareness on the part of a witness. That

Shehzad did not tell the police that 'he was not fully

conscious and that therefore, his statement should not be

recorded' does not indicate that he is lying in that

regard; and that he was fully conscious. This argument

 137

has not been advanced; but if this was not the intention

behind putting this question, then it ought not to have

been put at all.

261. In the context of the evidence of Shehzad that the

rioters were shouting 'musalmanone mari nakho', the

omission to state before the police the word

'musalmanone' has been brought on record through PI Baria

[P.W.72]. In my opinion, this omission is hardly

material. It is not in dispute at all, as to what was the

object of an unlawful assembly. Whether or not the

rioters were shouting 'musalmanone mari nakho', the

object was undoubtedly, inter-alia, to attack and kill

the Muslims. Whether they said 'musalmanone mari nakho'

or simply 'mari nakho', makes no difference. This also

does not lead to any conclusion about Shehzad Khan being

deliberately lying in this regard. First of all, as

discussed, the authenticity of the police record and its

reliability itself is doubtful. It therefore, follows

that meticulous attention might not have been paid by PI

Baria while recording the statement, on what the precise

slogans were. It appears from the evidence that a

number of slogans were being given by the rioters. It is

quite likely that the victims remembered only some of

them and all did not remember the same slogans.

Secondly, it is possible that on hearing 'mari nakho'

 138

coupled with the other happenings and the reaction of the

mob, the slogan 'mari nakho' was rightly construed by

Shehzad as 'musalmanone mari nakho' and having so

construed, he might have, bonafide, stated that the

rioters were shouting 'musalmanone mari nakho'. It is

possible that he gained this impression at that time

which came to be reproduced in his evidence. No

importance can be given to the alleged omission.

262. Since Shehzad stated that he had sustained injury by

sword and also pointed out the portion on his head where

he had sustained the said injury, he was asked in the

cross-examination as to whether he fell unconscious

because he was hit on his head by a stone. Shehzad

stated that it would not be correct; and that he was hit

on his head by a sword and thereafter, he had fallen

unconscious. Shehzad denied having stated to the police

about a stone hitting on his head and thereby his falling

unconscious. This contradiction [Ex.365] has been brought

on record in the cross-examination of PI Baria. I am not

inclined to believe that Shehzad indeed stated so before

PI Baria. The most important reason for this is that it

is factually incorrect. The injuries sustained by

Shehzad are clearly caused due to sharp cutting weapon.

[Link] Robin [P.W.46] has stated so and has also stated

that one of the injuries being 12cms in length, is likely

 139

to have been caused by a weapon of considerable length.

No attempt has been made to contradict the evidence

about the possible weapon which would cause such

injuries and no attempt has been made on behalf of the

accused to suggest that the injury as was sustained by

Shehzad could be caused by a stone. In view of my

observation about the unreliability of the police record

of the statements, it is not possible to accept that

Shehzad though actually was injured by sword, stated that

he was hit by a stone. Moreover, the stone throwing was

going on in the night and not in the morning when Shehzad

got down from the terrace. It is difficult to accept

that in the morning incident, he was hit by a stone. The

learned Advocates for the accused have also not disputed

that the evidence shows that the stone throwing was going

on in the night only. As a matter of fact an argument

has been advanced, based on this aspect that, that

Shehzad was assaulted by stone, had fallen unconscious,

in the night itself. I am not at all impressed by this

contention. The question arises is, how, in that case,

he could get down from the terrace in an unconscious

condition. The police and Fire-Brigade have, certainly,

not brought down Shehzad and other injured. Though, a

faint suggestion to that effect has been given, it has

not been pressed and obviously it is contrary to the

weight of evidence on record. There is no evidence that

 140

anybody brought him down, which even otherwise, seems to

be impossible, because to bring such seriously injured

and unconscious person down by a ladder, could not have

been undertaken by the victims. Once the police or fire

brigade have not brought him down is clear, the only

others who could do so, are either the rioters, or the

victims.

263. Thus, I am of the opinion that neither was Shehzad

hit by a stone on his head, or, at any rate, not instead

of being hit by a sword, nor did he state so to the

police.

264. After considering the evidence of Shehzad and in

spite of meticulously examining it, I am unable to find

any such infirmity in his evidence as would discredit his

version. The 'contradictions' and/or 'omissions' which

have been brought on record are insignificant and

immaterial, except the omission to state the names of

some of the offenders which I shall discuss separately,

in the context of the reliability of the identification

done by him.

265. Shehzad, on the whole, seems to be a truthful and

reliable witness.
 141

266. Apart from the so called 'contradictions' and

'omissions' in the record of his statement, made before

the police, there is not much other basis on which the

evidence of Shehzad has been challenged.

267. As the contradictions and omissions which are raised

in case of all the supporting occurrence witnesses, are,

as aforesaid, being dealt with separately, only the

contradictions and omissions peculiar to this witness,

are being discussed here.

268. Shehzad was asked as to whether, when he saw the

rioters with mashals and swords, could he see their faces

at that time and Shehzad replied that he could not see

their faces at that time. This shows that the witness is

truthful. It does not appear that he is interested in

implicating accused, at any cost. To the next question

put, Shehzad has answered that he did see at that time

the five accused whose names, he said he knew. Since

he had earlier said that he did not see the faces of the

rioters at that time he was further questioned

specifically as to whether he saw the five accused at

that time, to which Shehzad has replied as follows:

Ans.:- Yes. At that time also and in the

morning also.

It is evident from this answer that by 'at that time'

 142

Shehzad means, night time and not a particular point of

time. This is also relevant in the context of the

contention of the learned Advocates for the accused that

the witnesses are claiming to have seen the rioters only

when they were sitting on charpaee. It is clear that

such interpretation of what the witnesses stated would be

contrary to logic and absolutely incorrect. When Shehzad

has said that he saw the five accused at that time he is

referring to night time and not only the time when the

rioters came with mashals and swords. Any doubt in that

regard is easily removed by the answer, reproduced above.

269. While appreciating Shehzad's evidence the fact that

he was severely injured during the incident and was

unconscious for a number of days, can not be overlooked.

Shehzad and his brother Sailun [P.W.32] were not

originally from Vadodara. They had come to Vadodara for

a job. There was nobody to take their care after having

undergone such a brutal attack and survived only by

fortune. There must have been tremendous fear in the

mind of Shehzad when his statement was recorded on

06/03/2002. In fact, it is impossible to hold that he

was in a fully conscious and composite state of mind and

could accurately narrate the happenings to the police.

How he perceived the incident at that time and how the

police perceived it, is also relevant in the context

 143

of certain omissions particularly with respect to give

the names of the accused persons. In the condition in

which Shehzad obviously was at the material time, his

omission to state certain facts to the police can not be

held against him, and his veracity should not be doubted

on that count.

270. Shehzad's evidence about the identity of weapons can

not be accepted and what can be said is that the weapons

identified by him were similar to the weapons which he

saw along with rioters. The specific identity of the

weapons can not be satisfactorily established by his

evidence. In fact, Shehzad clearly admitted that he

could only say that the weapons identified by him were of

the same appearance as of the weapons seen by him with

the rioters; and that he could not say that they were the

very weapons. This again shows that the witness is not

interested in making a false claim and concedes wherever

he is confronted with a correct proposition.

271. As regards the identification of the accused Jitu,

Sanju, Shana and Dinesh, Shehzad has given the details as

to how he knew them. accused no.15 - Dinesh is well

known to him, as he is the son of owner of one Mamta

Bakery. The evidence of Shehzad shows that Dinesh was

well known to Shehzad; and that Dinesh used to come to

 144

the Best Bakery in connection with business.

272. As regards Sanjay Thakkar also, the evidence of

Shehzad shows that he knew him since previously, which

should be accepted. I see no reason to disbelieve

Shehzad on this.

273. Similar is the case as regards the accused No.12 -

Jitu.

274. Regarding accused no.16 - Shanabai, Shehzad states

that his house is just by the side of the Best Bakery.

275. There is nothing doubtful in the version of Shehzad

as regards his prior knowledge of, or acquaintance with

the accused identified by him. I do not find any

substance in the contention that the witnesses including

Shehzad have been tutored to identify certain accused.

It may be observed that it is not easy to tutor a person

to identify another person not previously known to him.

It would require the person tutoring, the witness and the

accused to be identified to be together for sometime. At

a late stage, a suggestion has come from the defence that

'the enlarged photographs of the accused persons were

shown to the identifying witnesses', and this suggestion

was put to the Investigating Officer – PI Shri

 145

[Link] [P.W.74]. No such suggestion however, has

been put to the witnesses themselves. As such, no

importance can be given to such a contention.

Identifying a few accused, from out of 17 accused, by

giving their correct names, there being no wrong

identification in the process is a factor which lends

assurance to the identification.

276. The cross-examination on the point that Shezhad is

receiving community support is not of any significance,

in my opinion. That, therefore, he would falsely depose

against the accused can not be accepted, though it can be

said that he is certainly an interested witness being an

injured person. Being a victim of communal violence,

naturally, he has got support of some persons from his

community so as to enable him to seek the redressal of

his grievance before a Court of Law. Shehzad is also

cross-examined on the point of his being introduced to

[Link] Setalvad and her helping him. I do not find

anything wrong in anybody helping Shehzad to seek justice

by being able to depose before a Court of Law.

277. On overall consideration of the evidence of Shehzad,

I find him to be a reliable and truthful witness.

(D) EVIDENCE OF SAILUN KHAN HASAN KHAN PATHAN [P.W.32]

 146

278. The next injured witness is Sailun Hasan Khan Pathan

[P.W.32] who was also at the material time working in the

Best Bakery. He is the brother of Shehzad Khan [P.W.28].

His presence at the Best Bakery at the material time and

the fact that he sustained injuries during the incident

is not in dispute, at all. The evidence shows that he

had sustained the following injuries.

i] I.W. on Lt. parietal – 10cm x 2cm x

scalp deep.

ii] Two C.L.W.'s on Lt. parietal 2cm x

0.5cm, 1cm x 0.5cm x 0.5cm.

iii] C.L.W. on Lt. ear 1cm x 0.5cm. x

0.5cm.

279. He was brought to the hospital at 11.35 a.m. and was

examined by [Link] Robin [P.W.46]. At about 3.15 p.m.

he was admitted in D-4 Ward of the Surgical 'F' Unit,

where he was treated and examined by [Link] [P.W.62].

By that time, his name had not been ascertained and he

was described as 'unknown'. Sailun was discharged from

the hospital on 02/04/2002. The injuries sustained by

him were, admittedly, serious injuries and have been

described as 'grievous' hurt.

280. Sailun has described the incident and has stated how

he and others were sitting on a palang when the rioters

 147

came with mashals and how after Sailun and others had

gone to the terrace, the rioters were throwing stones,

kerosene etc. on the terrace for burning the bakery. He

also speaks about the morning incident and states that

after he and others were made to get down, their hands

were tied down by the rioters and assault with swords

started. He has identified all the accused by pointing

out towards them, except the accused no.3 - Haresh Gosai

and accused no.5 - Painter @ Yogesh Verma. Out of these,

he has identified accused no.11 – Sanju and accused no.15

– Dinesh - by their names as 'Sanju' and 'Dinesh',

respectively. He has identified accused no.20 as 'Lala'.

He has attributed specific roles to accused no.11 -

Sanju, accused no.15 - Dinesh and has stated that they

were assaulting by swords after tying the hands [or after

the hands were tied.] He also states that accused no.11

– Sanju had taken money of his brother Shehzad.

281. Sailun was unconscious when he was admitted in the

hospital. His statement could be recorded only on

06/03/2002.

282. In addition to Sanju, Dinesh and Lala, Sailun has

spoken about Jitu. Sailun has stated about Jitu being

present with weapon among the rioters, but while pointing

him out before the Court, Sailun failed to identify him

 148

by name - i.e. as 'Jitu'.

283. It is submitted by [Link] Rao, the learned

Spl.P.P., that Sailun's evidence is clear, simple and

worthy of credence. According to her, it ought to

be accepted fully. Shri Shirodkar, the learned Senior

Advocate for the accused, on the other hand contended

that Sailun does not seem to be mentally fully fit and

his evidence can not be accepted. According to him, the

evidence of Sailun is, on the face of it, unacceptable

and that though it is unfortunate, it seems that Sailun

suffers from serious mental defects to such an extent

that no reliance can be placed on his evidence. The

arguments advanced by Shri Shirodkar are adopted by all

the other learned Advocates for the accused.

284. Apart from the challenge to the evidence of Sailun

on the ground of the same being unsatisfactory and Sailun

being an unreliable witness, it is contended that

pointing out the accused persons in the court, as done by

Sailun, is of no value. It is contended that 'the

accused who have been identified by him have not been

identified as the rioters'. Shri Mangesh Pawar, the

learned Advocate for the accused nos.16, 17, 18, 19 & 21,

has pointed out in the memorandum of the written

arguments filed by him, the following portion from the

 149

evidence of Sailun which has been recorded in question

and answer form.

Ques:- When you were made to get down in

the morning, who were there ? Do

you know any of them ?

Ans.:- If I would see them, I would be

able to identify them. [Page-728

Para-11].

285. Sailun has told the Court that he knew the names of

two of them and has given the names as Sanju and Dinesh.

It is thereafter, that Sailun was asked as follows:

'Whether any of those persons are now

present in the Court hall ?

It is thereafter, that the identification of the accused

persons by Sailun followed. The argument is that the

questioning shows that Sailun was asked to identify the

persons 'who were there when he was made to get down in

the morning' and not 'the rioters'.

286. I have carefully considered this argument. I am not

able to accept this contention. It does appear from

Sailun's evidence that either because of the impact of

the assault or for whatever other reason, Sailun is not

fully normal. His understanding seems to be of less than

average caliber, and his mental ability below average.

 150

In fact, an attempt was made by the learned Advocates for

the accused to show that he was not fit to depose, not

being capable of understanding the questions put to him.

It is therefore, that a part of his evidence was

recorded in question and answer form instead of as a

narration. The contention about the incompetency to

testify was given up by the learned Advocates for the

accused. Among other things, Sailun has admitted that he

knew numbers only till 15 and could not count further

than that. Sailun also did not know how to use a watch

and was unable to understand time from a watch or clock.

There was, therefore, undoubtedly some difficulty on the

part of the Special Public Prosecutor to get a logical

answer to each and every question put to Sailun.

However, the contention that he has identified only the

persons who were present in the morning; and that the

evidence of Sailun does not show that those who were

identified by him were identified as 'the rioters' or

'the assailants,' can not be accepted. The argument

noted above which has been advanced by Shri Pawar,

with respect to Sailun's evidence [recorded on page

728 of the Notes of Evidence] fails to take into account

Sailun's evidence recorded prior to that. Prior to that,

Sailun has described the incident that took place after

they - i.e. he and others - had come down. This, he has

described by saying that this happened in the morning.

 151

The relevant evidence may be reproduced.

“The rioters were throwing stones and

petrol. They troubled all of us throughout

the night. On the next day morning, we

were made to get down [“Hum logon ko

utare”].” [pg.726, para 8 of Notes of

Evidence].

287. Thereafter, Sailun was asked clarification regarding

what he meant by 'we', which he has given. Sailun has

then described what happened after they had come down.

He has stated that hands and legs were tied. First, the

ladies were made to get down. That they were made to get

down by using 'double seedhi' etc. Sailun has further

clarified by saying that 'After we were made to get down,

our hands were tied and the assault with swords started'.

[pg.727, para 10 of Notes of Evidence].

288. Sailun was then asked as to who were injured, when

he said that all were injured by sword. Sailun then

described the injuries sustained by him. He then said

that he was in the hospital for 15 days. Sailun was then

asked by the learned Spl.P.P. as to what he knew about

the persons who had come along with the 'mashals'. Now,

this has reference to the evidence given by Sailun

earlier while describing the incident. For a better and

 152

proper understanding, it will be useful to reproduce the

relevant evidence here. “After having our meals, we were

sitting on a 'Palang'.

Ques.- What was the approximate time ?

Ans.- It was at about 8.00 to 9.00 p.m.

Those persons came with 'Mashals'.”

[emphasis supplied] [pg.723, para 6

of Notes of Evidence].

289. Thus, it is in this background, the question as to

what Sailun knew about the persons who had come along

with the mashals was asked. Sailun has replied to that

question by saying that they had weapons also; and that

they were having swords, sticks and rods with them. It

is thereafter that he was asked about who were there when

he was made to get down in the morning and pursuant to

his answer stating that he would be able to identify

them; and that he knew the names of two of them, he was

asked whether any of those persons were present in the

Court hall. 'Who were there in the morning,' is a

question that has been asked after the morning incident

has been described by Sailun. The question and the

answer must be understood in the context of the previous

questioning. From the manner in which the examination-

in-chief has proceeded, it cannot be doubted that the

question that was asked was about the presence of the

 153

'rioters' and not of others. The question could not have

been understood by Sailun as a question requiring him

to point out the persons other than the rioters or

assailants. The evidence has to be comprehended not by

reading the words out of context. The process of

questioning has a continuity, which can not be

overlooked. A single question and answer from the

evidence cannot be picked up and interpreted, divesting

it of the context. There has been no reference in the

evidence of Sailun or even of other witnesses as to

the presence of any spectators or others who were

unconcerned and unconnected with the mob of rioters. His

evidence shows that all along, the talk was about the

rioters, whether it was in the night, or in the morning.

Moreover, it is not anybody's case that the accused

identified by Sailun were present there and therefore, he

had identified them so as to construe the evidence of

identification accordingly as is sought to be suggested.

Though in the particular question and answer, it is not

reflected that those who were identified as present in

the morning when Sailun and others got down, were

identified as 'the rioters' or 'the members of the

unlawful assembly', if the entire evidence adduced before

that is seen, no manner of doubt can be felt that the

question was in respect of the rioters, that it was

understood to be so by Sailun, and has been

 154

accordingly answered. This is further clear from the

fact that Sanjay and Dinesh have also been named and

identified by name by Sailun as the persons who were

'among the persons who were present in the morning'.

Sailun has attributed specific roles to Sanju and Dinesh.

Thus, when Sanju and Dinesh have been identified as the

offenders and as a part of the mob of the persons who are

said to be present in the morning, obviously, the

'persons present in the morning', as referred to, can

mean only the persons present in the mob of the rioters.

In view of the above discussion, I do not find any

substance in the contention that those who have been

identified by Sailun as 'being present in the morning'

have not been identified as 'the rioters' or 'the persons

forming the mob of rioters'.

290. In the view that I am taking of Sailun's evidence,

this is not very material, but since this argument has

been advanced and since it is not found sound, I have

thought it necessary to deal with the same.

291. It is true that many answers given by Sailun while

he was questioned, both - in examination in chief as

well as in the cross-examination – show his understanding

to be a little less then normal. However, certainly he

was found capable of understanding the questions put to

 155

him, and was also capable of giving rational answers to

them. It is apparent that he has not been able to come

out of the impact of the incident fully and perhaps, the

serious head injuries suffered by him during the incident

together with the horrible experience, which he has

undergone, have affected his entire personality. His

evidence appears to be somewhat more discrepant, than it

really is, because, on many occasions he had replied

apparently on the basis of the thought process started by

the previous questioning. In such cases, it has resulted

in the answer not being exactly with reference to the

question put, but with respect to questioning done

before. However, it is impossible to hold that he lied

or told deliberate falsehood on any aspect of the

matter. On the contrary, some of the answers given by

him in the examination-in-chief, themselves indicate that

he is not dishonest and/or tutored, at all. By way of an

example, the question and answer in his examination-in-

chief, which has been highlighted by the Advocates for

the accused, may be referred to.

“Ques.-Why have you identified these persons

? [“Inko kyon pahechana hai ?”]

Ans.- 3 to 4 persons I knew because they

used to come frequently to the Best

Bakery.” [pg.729 of Notes of

Evidence].
 156

292. This is commented by Shri Mangesh Pawar, the learned

Advocate for the accused, as an 'improper attempt' on the

part of the prosecution to get a desired answer by a

leading question. I do not agree that this question is a

leading question, but that is not the point here. What

is commented by Shri Pawar is that by this question what

the prosecution wanted the witness to say is 'what they

had done to him'. It is contended by Shri Pawar that the

prosecution by putting this question, wanted the witness

to attribute some incriminating overt acts to the persons

identified by him. I do agree with Shri Pawar in this

respect and I also agree with him in his further comment

that 'the witness has not helped the prosecution by

giving the answer expected'; but according to me, that

only shows lack or absence of tutoring. The further

questions and answers show that the witness was certainly

not interested in attributing any specific role even to

the persons identified by him. He was specifically asked

whether he knew who assaulted him with swords, to which,

he replied as follows-

“There were many persons. All were having

swords.” [pg.730, para 11 of Notes of

Evidence].

293. Even when the Court put the following question to

clear up the necessary point, Sailun, though had spoken

 157

of assault of the rioters being with swords, did not

attribute any roles to anyone except Sanju and Dinesh.

It was again asked to him whether he wanted to say

anything about anybody else who was identified by him,

but Sailun replied as that 'the money that was in his bag

was taken away, but who had taken it, he did not know'.

Thus, in my considered opinion, though Sailun suffers

from some lack of understanding, he cannot be branded as

a lier or an untruthful witness. On the contrary, in my

opinion, he is a truthful witness.

294. Sailun was asked the following question in the

cross-examination -

Ques.- You could tell this to the Court

even after gap of about 2.1/2

years, because you remember all

these happenings. Is it correct ?

to which, he replied as follows :

Ans.- “Maar laga hai. Talwar laga hai

isiliye jaanta hoon. Poora jism

kaat denge to bhi bataoonga”.

[pg.733].

295. In my opinion, this answer - particularly the last

part of that - is a clear indication of the fear felt by

Sailun about the consequences of disclosing the facts and

his determination to do so, in spite of that.

 158

296. Sailun was then asked whether he was angry with the

accused to which, he had replied that he was not angry.

How badly Sailun was affected by incident and how he

could not even recognize his father, has been revealed in

the cross-examination. So as to ensure that the word

'knowing' as has appeared in the Notes of Evidence is not

misunderstood or misconstrued, the word used by Sailun

'pahechanta' [ ] has also been specifically

recorded. [It now seems to me that the word

'recognizing' could have been more appropriately used for

the word 'pahechanta' [ ] while translating the

evidence.]

297. In spite of the weakness of Sailun and the fact that

his mental faculties appear to be somewhat affected, the

learned Advocates for the accused, have not been able to

elicit anything in his cross-examination, so as to

discredit his evidence about the involvement of Sanjay

and Dinesh and Sailun's prior acquaintance with both of

them.

298. In the facts and circumstances of the case, only on

the ground that he did not disclose certain facts to the

police, I am not inclined to discard the evidence of

Sailun. In all probability, no proper elicitation was

 159

done from Sailun at the investigation stage whether

because of the lack of desire or lack of feeling

necessity of eliciting further facts or because Sailun

was not in a proper condition to disclose the facts.

299. It is contended by Shri Shirodkar, the learned

Senior Advocate, that it is not possible to believe that

Sailun could make a statement before the police on

06/03/2002 as Sailun himself has stated that for one

year, he did not state anything to anyone. Thus, Shri

Shirodkar contends that the statement of Sailun, as has

been recorded purportedly on 06/03/2002, is bogus. I

have carefully considered this aspect. Sailun was

severely injured. According to [Link] Robin [P.W.46],

when he was admitted in hospital, he was unconscious.

According to her, he became conscious only on 12/03/2002,

whereas according to [Link] [P.W.62], who treated him

in the ward, he became fully conscious on 24/03/2002.

Admittedly, on 4th, he was unconscious and that is why,

his statement could not be recorded when the statements

of other injured [except Shehzad] were recorded. Even

if it is believed that for a short while, Sailun had

regained consciousness when his statement came to be

recorded by PI Baria, it is difficult to accept that

Sailun was in such a frame of mind so that it could be

expected of him to narrate the happenings in detail,

 160

including the names of the assailants or the rioters. In

fact, that he was not fit to make the statement is

obvious from the medical evidence itself. PI Baria does

not state that he took any opinion from any doctor about

Sailun being in a fit condition to make a statement.

Sailun was asked whether he had told the police about the

incident when they had come to him in the hospital. He

said that at that time, he did not remember anything. He

admits that he did not tell the name of Dinesh to the

police and clarifies that he did not disclose anybody's

name to the police. He admits not having stated to the

police that Sanju had taken money of his brother and also

the fact of money of his brother having been taken away.

Sailun admits not having stated anything to the police

about Jitu. He even admits not having stated to the

police about the rioters coming with mashals. In fact,

Sailun himself states not having said anything to the

police, except that he was injured by a sword.

300. Under these circumstances, I am inclined to agree with

the learned Senior Advocate that the statement of Sailun

stated to have been recorded by PI Baria on 06/03/2002,

is possibly a bogus statement. It is significant that

Sailun's statement gives the same names of offenders

which PI Baria had already gathered from the F.I.R.

[Ex.136] and from the statements of other persons

 161

recorded by him before 06/03/2002. The possibility of PI

Baria recording a bogus statement purporting to be of

Sailun, incorporating the information which he had

already gathered from others just to complete the paper

work and relieve himself of the responsibility of

recording the statements of all the eye witnesses at an

early date, cannot be ruled out. In fact, the entire

police record in this case and more particularly the

statements recorded by PI Baria are of doubtful

authenticity and my observations regarding that, have

been separately mentioned. However, though I agree with

the contention of the learned Senior Advocate about the

authenticity of Sailun's statement [X-152 for

identification] dated 06/03/2002 recorded by PI Baria, I

entirely differ with him with regard to the conclusion or

inference which he expects to be drawn therefrom.

Sailun's statement has been falsely recorded, cannot

discredit Sailun under the circumstances. It discredits

the investigation in general and PI Baria in particular.

Further, this false record, certainly, has not been

created to implicate the accused falsely, in as much as,

no new incriminating circumstances or names have been

introduced in the statement of Sailun. About the apathy

or dishonesty or incompetency of PI Baria, as the

Investigating Officer, I intend to make my observations

elsewhere in this judgement and by reason of the fact

 162

that Sailun's statement was not recorded properly, or

that the record is not accurate, or that no efforts were

made to elicit detailed information from him, Sailun

cannot be discredited.

301. At the conclusion of the cross-examination, it was

put to Sailun that he had not seen any of the accused at

the time of the incident, to which, he replied that he

had seen them in the morning of the second day. This

again shows, in my opinion, the honesty of Sailun.

Sailun does not appear to be anxious to implicate the

accused falsely by attributing to them various overt acts

and also alleging their involvement in the incident that

took place in the night. He even does not implicate

anyone particularly as the person who assaulted him,

though out of so many accused pointed out by him in the

Court, he could have pointed out anyone attributing such

a role. It is true that Sailun's evidence suffers from

certain weaknesses, but it is impossible to hold that he

is a lier or interested in falsely implicating any of the

accused.

302. Sailun's evidence regarding the accused other than

Dinesh and Sanju, stands on a different footing. It is

because he has not attributed any specific role to the

others. It would be unsafe to rely on his identification

 163

of those accused whom he neither attributed a particular

role, nor has given their names. Even as regards 'Lalo',

how far Sailun's evidence can be relied on, can very well

be doubted, but, as regards Sanju and Dinesh, certainly

it can be relied upon. That Sailun suffers from mental

or intellectual weaknesses, is not sufficient to discard

his testimony or to hold that he could not have

remembered anything of incident. Clearly, the incident

has been a life changing experience for Sailun and has

left its impact on his entire personality. Much

emphasize has been placed by the learned Advocates for

the accused in the course of arguments, on the mental

weaknesses of Sailun as a ground for not placing any

reliance on his memory. In this context, it is worth

mentioning what the experts opine on this. Hans Gross in

his Criminal Psychology [1911 translation, Kaller] has

observed that, 'It is a matter of experience that the

semi-idiotic have an excellent memory and can accurately

reproduce events which are really impressive or alarming,

and which have left effects upon them.' When Sailun gave

evidence, it was very apparent that he had a deep rooted

impression about what was done by Sanju [accused no.11]

and Dinesh [accused no.15]. His reaction in mentioning

about Sanju and Dinesh was different from his reaction in

pointing out towards others. It appears to me that the

acts of Sanju and Dinesh have been greatly impressed upon

 164

the mind of Sailun and his memory in that regard, cannot

be doubted at all.

303. Sailun has not been able to answer certain questions

such as, what was he meant by 'double seedhi', though he

has used that expression. Sailun stated that he got down

from a bamboo ladder [“baas ki seedhi] and this aspect of

his evidence cannot doubted at all. Though, he further

used the expression 'double seedhi', he said that he did

not know what is meant by 'double seedhi'. It is,

therefore, possible that the expression 'double seedhi'

has been learnt by him by somebody and though he might

not been specifically tutored by somebody, it is possible

that discussion has been taken place between him and

others about the case. What Sailun must have learnt

during such discussion, he might be taking as a matter

of fact and as if experienced by him. This may be true

with respect to Jitu also. Though he speaks of Jitu

performing certain overt acts, he has not been able to

identify Jitu as 'Jitu'. He simply pointed out him in the

Court, but he did not identify him as 'Jitu'. Thus, the

possibility of he having learnt during the discussion

with some others about the involvement of 'Jitu', cannot

be ruled out.

304. However, in view of the discussion above, and on a

 165

careful consideration of his entire evidence, the

evidence of Sailun, in spite of all the criticism of it,

made by the learned Advocates for the accused, can safely

be accepted, at least with regard to Sanju and Dinesh.

E] EVIDENCE OF YASMIN [P.W.29]

305. The last occurrence witness who has supported the

prosecution is [Link] Nafitulla Habibulla Shaikh

[P.W.29]. It may be recalled that she is the wife of

Nafitulla [P.W.31]. She is the only member of the family

of Late Shri Habibulla Shaikh who has supported the

prosecution case.

306. Yasmin [P.W.29] has, in her evidence, described the

incident and has identified 12 accused as the culprits.

The 12 accused identified by her have been so identified

by her, by pointing out towards them in the Court and

also by their names. Though Yasmin had sustained only

some minor injuries, for which no medical treatment was

required, during the incident, she had gone to the S.S.G.

Hospital along with the injured.

307. Yasmin's [P.W.29] evidence has been bitterly and

severely attacked by the learned Advocates for the

accused. Yasmin's presence during the incident itself

 166

has been severely challenged, though, the rigour of the

challenge was almost given up at the stage of arguments.

Yasmin has been contradicted, by confronting her with her

previous statements. The defence witnesses Shri Kumar

Swami [D.W.1], Shri Ramjibhai Pargi [D.W.3], [Link]

Pandya [D.W.4] and Shri Ajay Patel [D.W.5] have all

been examined for the purpose of proving the previous

statements made by Yasmin, which are said to be contrary

to her version in the Court. Yasmin's evidence is

therefore required to be meticulously analyzed in the

light of all the contentions that are advanced on behalf

of the accused.

308. In her evidence, Yasmin states that she had studied

upto 10th standard; and that she can read and write Hindi

as well as Gujarati. Yasmin was married to Nafitulla

[P.W.31] on 19/11/2000.

309. Yasmin has given the details of Late Shri Habibulla

Shaikh's family as it consisted at the material time and

has also mentioned about the servants that were employed

for running the Best Bakery. Yasmin has mentioned about

Taufel, Raees, Shehzad, Sailun, Baliram,

Ramesh and Prakash, and also about Kausarali and one

Nasru residing in the Best Bakery building at the

material time.
 167

310. Yasmin has then described the incident that took

place between at about 9.00 p.m. on 01/03/2002 till about

11.00 a.m. on the next day. Yasmin has stated about

noticing a number of persons coming from various

directions, carrying with them swords, rods and mashals.

She states that those persons were shouting and giving

slogans to the effect that Muslims should be killed

['miyako kapo, maro'].

311. Yasmin has then stated about Kausarali and Lulla

talking to the rioters and they being assaulted by the

rioters. According to Yasmin, Kausarali and Lulla, who

were brought to the first floor, were, later on, dragged

away by the rioters. According to her, they were

unconscious at that time and their bodies were thrown in

the fire by the rioters.

312. Yasmin has categorically stated that she knew some

of the persons who were in the mob of rioters in the

night and she also knew their names. She has mentioned

about Sanjay Thakkar [accused no.11], Jayanti Chaiwala

[absconding accused] and one Painter being present among

the mob of rioters, leading the mob and telling them to

set fire by pointing out different locations such as

'idhar aag lagao, udhar aag lagao'.

 168

313. Yasmin states that in the morning, they [she and

others] pleaded with the rioters that they be allowed to

go; and that they apologized to the rioters. Yasmin then

describes the incident that followed thereafter. She

describes how they got down from the bamboo ladder

brought by the rioters, how they had been assured before

that, that they would be allowed to go after giving a

little beating, etc. She then speaks of the rioters

tying the hands and legs of the men and dragging the

ladies towards the jhaadi. She also speaks of the

rioters assaulting the men with swords. She states that

when the women had been dragged up to some distance, the

police came there; and that on noticing the police, the

rioters ran away. She claims to have seen the rioters

assaulting her husband Nafitulla, Nasibulla, Raju,

Taufel, Baliram, Raees, Prakash, Shehzad and Sailun.

Yasmin also states that the wives of Firoz and Aslam, 4

children, and her sister-in-law Sabira had been burnt in

the night itself while on the first floor.

314. Yasmin has identified Sanjay Thakkar [accused

no.11], Pankaj Gosai [accused no.4], Jagdish Rajput

[accused no.14], Shanabhai Baria [accused no.16],

Shailesh Tadvi [accused no.18], Ravi Chauhan [accused

no.21], Rajubhai Baria [accused no.1], Dinesh Rajbhar

 169

[accused no.15], Yasin Khokhar [accused no.13] and Haresh

Gosai [accused no.3]. Though she has stated about

Painter and Jitu, she was not able to identify any one as

Jitu and/or Painter, in the Court. Yasmin has

attributed roles to the accused identified by her.

According to her, Dinesh [accused no.15] was having a

sword with him. Shanabhai [accused no.16] was tying the

hands and legs. Jitu [accused no.12] and Jagdish

[accused no.14] were threatening to rape the women. Ravi

[accused no.21], according to her, had snatched the chain

which she was wearing around her neck. Shailesh [accused

no.18] and Raju [accused no.1] were involved in the act

of catching hands at the time when the men were being

assaulted.

315. Yasmin was not examined during the previous trial

held at Vadodara. She had not been summoned or called as

a witness during that trial. A few days after the

incident, she had gone to Chhota Udepur to stay with her

parents. About an year prior to the commencement of the

present trial, she had gone to Vadodara and had started

residing in the Best Bakery premises itself.

316. Yasmin was asked in the examination-in-chief as to

whether she would be able to identify the weapons used by

the rioters when she said that she would not be able to
 170

do so, but she would be able to say whether the weapons

that would be shown to her, were of the type which the

rioters were having. Yasmin has stated that the rioters

were having swords of the type as the sword at Art.R/23

is, and also the pipe of the type as Art.R/22 is.

317. Yasmin [P.W.29] has been extensively cross-examined

on several points. As already observed, the presence of

Yasmin during the incident itself is very severely

challenged though the rigour of the challenge was

tremendously reduced by the stage of the arguments.

However, since it is not entirely given up, I shall

examine this aspect of the matter first.

318. It is interesting to note that, that Yasmin was not

present at the time of incident at all, does not appear

to be a contention based on the knowledge of the accused

persons or any of them.

319. The stand of the accused, as appearing from their

examination under section 313 of the Code, is that they

are unaware of the incident, any of the victims

[including the members of the family of Late Habibulla

Shaikh], the witnesses residing in the locality [except

Lal Mohammad (P.W.36), whom accused no.15 admits knowing]

and even the Best Bakery itself. The point that is to be

 171

highlighted here is not what the defence of the accused

is, or the merits of the defence, but to examine the

basis on which the contention that Yasmin was not present

at all, has been advanced. It is the case of the

prosecution that Yasmin was very much present during the

incident and along with the other witnesses, Yasmin's

statement was also recorded by PI Baria [P.W.72] on

04/03/2002. A copy of Yasmin's statement is included in

the chargesheet and admittedly, copies thereof were given

to the accused. In the F.I.R. [Ex.136], however, there

is a mention that Yasmin had gone to her parents' place

at Chhota Udepur, as supposedly said by Zahira [P.W.41],

but the same is supposedly corrected by Zahira in her

further statement recorded on 04/03/2002.

320. In this background, it is rather interesting that

the thought of challenging Yasmin's presence occurred to

the learned Advocates for the accused apparently, at a

late stage. It is interesting to note that Raees

[P.W.27] and Shehzad [P.W.28] clearly speak of the

presence of Yasmin [P.W.29] during the incident, but none

of them, in spite of a lengthy cross-examination, has

been challenged on this aspect. Raees [P.W.27] has

spoken about Guddu's wife being there and there is no

suggestion to him that Yasmin was not there at all – let

alone a challenge to that evidence. Even Shehzad

 172

[P.W.28] clearly speaks of the presence of Yasmin. Raees

and Shehzad, both, have described Yasmin as 'Guddu's

wife' and there is no challenge to this aspect – viz.

that Guddu's wife refers to Yasmin only and to nobody

else. Thus, in spite of elaborate cross-examination of

both these witnesses, there was no attempt to question

them and to expose the 'falsity' of their claim of

Yasmin's presence during the incident. This, in my

opinion, is a clear indication of the fact that the

learned Advocates for the accused had not thought this

part of the evidence of the witnesses open to challenge.

321. Apparently, the support to the contention that

Yasmin was not present at all, is sought to be derived

from the evidence of the witnesses from Late Habibulla

family, all of whom have been declared as hostile.

It is only on being assured of their support on this

issue, the challenge to Yasmin's presence appears to have

been taken. What is significant, however, that

this assurance was felt before the hostile witnesses were

examined in Court. None of hostile witnesses were

examined before Yasmin was examined. I am not, for a

moment, suggesting that the accused persons are not

entitled to take any defence which they may think to be

convenient and easier, or that the learned Advocates for

the accused persons must take up a line of defence only

 173

if specifically instructed in that regard by the accused.

However, the persistence with which and the length to

which, the claim of Yasmin not being present at all, is

pursued by the defence, without it being based on

personal knowledge of the accused and without it being

supported by any other evidence, is rather strange.

322. The hostile witnesses have denied the presence of

Yasmin at the time of the incident. That they have

spoken a lie in that regard is however clear.

323. When during cross-examination, it was repeatedly

being suggested to Yasmin that she was not present during

the incident at all, Yasmin voluntarily made the

statement before the Court to the effect that 'video tape

in respect of the shooting done at the place of incident

was available with Gujarat police; and that the said

video tape may be called for by the Court, if desired'.

There was vehement opposition by Shri Shirodkar, the

Learned Senior Advocate, for even recording this

relevant statement. However, as it was thought

appropriate, proper and necessary it was recorded by the

Court, overruling the objection in that regard. A

cassette [Ex.283] later on, came to be produced. It

shows, among other things, the presence of Yasmin on the

spot when the police along with the Videographer visited

 174

the place.

324. The cassette provides aid in judging the truth or

otherwise of the evidence of the occurrence witnesses on

a number of points. The visual images and the sounds,

conversations and words stored therein provide a valuable

insight into the evidence on certain points. It would

therefore be appropriate and convenient to discuss at

this stage itself whether the video cassette, or rather

the contents thereof, are properly proved.

325. I shall, first, briefly consider the admissibility

of a video cassette in evidence. A video cassette is a

visual and aural record of the events that are recorded

therein. It is primarily used for storing visual images

but like a tape-recorder, it may also store sounds. If an

event or happening is relevant, the visual and aural

record of the same, contained in a video cassette is also

relevant. A video cassette can be admitted in evidence

under various sections of the Indian Evidence Act, such

as Sections 6, 7, 8 and even 9. A video cassette, to a

certain extent, is on par with a document, but because of

its capacity to store even the visual images apart from

the sounds, it can, for certain purposes, be treated as

real evidence and can have more evidentiary value than a

mere document. When treated as real evidence, it can be

 175

a strong piece of evidence by viewing which, the Court

can form its own opinion on the facts in issue or

relevant facts.

326. The video cassette [Art.R/27, and subsequently

exhibited and marked as Ex.283] is properly proved.

Gautam Chauhan [P.W.69], the Videographer, who had done

the shooting in question, has been examined as a witness.

The evidence of Gautam Chauhan and PI Baria

[P.W.72] shows that at the material time, the work of

video shooting was done by Gautam Chauhan on behalf of

'Dimple Video', who had been given a government contract

in that regard. That Dimple Video had been given the

government contract is proved from the evidence of

Parimal Valera [P.W.65]. Gautam Chauhan [P.W.69] states

about going to Daboi Road from the police station, along

with PI Baria, for the purpose of video shooting and

doing the video shooting in respect of what he described

as 'Best Bakery Hatyakaand'. When the cassette was

produced, it had a paper slip pasted on it which,

according to Gautam Chauhan, was in his handwriting.

Gautam Chauhan states that on that date, when he had gone

there, the Best Bakery building was burning. He also

speaks of some persons, who were injured, lying there.

Gautam Chauhan states that he did video shooting of the

Best Bakery building from the front side and also from
 176

the rear side, and also in respect of the said injured

persons. Shooting in respect of the rescue operation

performed by the fire-brigade regarding the injured being

taken to the ambulance, bringing down the dead bodies,

etc., was also done by him. The video cassette [Ex.283]

was played over to him in the Court and he has identified

the same as the same cassette in which the video shooting

done by him relating to the Best Bakery was recorded.

After viewing the cassette, Gautam Chauhan has stated

that the said video shooting had been done by him; and

that it was done under the instructions of PI Baria

[P.W.72]. While it was being played over to him in the

Court, Gautam Chauhan was explaining the situation and

locations that were appearing on the screen of the

television, from time to time.

327. In his cross-examination, nothing which would

discredit him on the aspect of his indeed having done the

video shooting in question, has been elicited. The cross-

examination was directed to establishing that the video

cassette did not contain the shooting for the entire

period during which the witness and PI Baria were there.

It has been brought on record, in the cross-examination,

that when the cassette was produced before the Court, its

recording tab had not been removed; and that therefore,

the cassette could be used for re-shooting, or for

 177

erasing the matter already recorded. PI Baria [P.W.72]

and PI Kanani [P.W.74] have also been cross-examined with

respect to the custody of the cassette and on collateral

aspects. It is not necessary to discuss the evidence in

that regard in details, in as much as, there is no

challenge to the evidence that what the video cassette

contains, is what was shot at the place of incident,

immediately after the incident. The evidence is

challenged only with respect to the possibility of

tampering with the cassette; and that too with reference

to the possibility of its copies being taken out and/or

that it not containing the full shooting done on that

occasion. In other words, there is no claim, or even an

attempt to make a claim, that what is seen in the

cassette, is fabricated, in the sense that the events

were staged, as in case of a shooting of a movie with

Yasmin [P.W.29], Zahira [P.W.41] and other witnesses

including D.C.P. Piyush Patel [P.W.67] and PI Baria

[P.W.72] being made to 'act' their roles; and that the

cassette contains the video shooting of such artificially

created scenes. In fact, such claim would have been

ridiculous looking to the nature of what is seen, - the

wide range of persons from the injured to the police

and fire brigade and even the hostile witnesses - and has

rightly not made. There is also no claim, or challenge

to the cassette [Ex.283] on the basis that the cassette

 178

is a combination of two different shootings done on two

different occasions and therefore some part of it shows

the events or happenings that actually not taken place at

all at the material time. There is nothing to indicate –

not even a suggestion – that shooting taken on some other

occasion has been inserted in the shooting taken at the

place of Best Bakery, after the incident. There is also

nothing to indicate – not even a suggestion – that the

voices, sounds and conversation that are heard, have been

recorded separately and inserted in the video cassette

containing the shooting done at the Best Bakery premises,

immediately after the incident.

328. I have carefully considered the possibility of

the cassette having been tampered. This aspect

shall be dealt with in details when necessary, with

respect to a particular contention or argument. At this

stage, it may be observed that though the possibility of

some matter having been deleted from the cassette cannot

be ruled out, that would not make any difference in the

admissibility and relevancy of the cassette [Ex.283], as

the evidence of what is seen and heard when it is played.

What is seen, if relevant, has to be taken into account

and cannot be excluded from consideration on the ground

that the entire recording of the happenings at the place

of incident may not be before the Court, either because

 179

the recording of the entire happenings was not done at

all, or because, a part of it was, for whatever reason,

erased or deleted from the cassette [Ex.283].

329. To facilitate easy reference to the relevant

material and to avoid damaging the contents of the

cassette by repeated playing, the prosecution was

directed to take out copies of the relevant matter in the

C.D. Accordingly, the C.D. containing the relevant

matter from the cassette [Ex.283] was prepared and

tendered in evidence by consent and has been marked as

Ex.283/3. Copies of the C.D. also were furnished to the

learned Advocates for the accused. An extra copy

[Ex.283/2] of the cassette [Ex.283] was also got

produced. It was decided, by consent, that the contents

of the relevant part of the cassette [Ex.283] and the

contents of the C.D. [Ex.283/3] being identical or rather

the same, the C.D. [Ex.283/3] would be played, instead

of the cassette [Ex.283].

330. Originally the cassette [Ex.283] was produced only

to show the visual images recorded in it, and more

particularly, to show the presence of Yasmin [P.W.29] on

the scene of offence, when the police arrived. It was

later on revealed that apart from the visual images, the

video cassette [Ex.283] also contained sounds and

 180

conversations recorded therein. When the cassette was

initially played in the Court by the learned Spl.P.P.,

for the reasons best known to her, the sound of the

television was kept off and as such, the Court had not

noticed that sounds and conversations were recorded in

the cassette. When it was noticed, the learned Spl.P.P.

was directed to prepare a transcript of what was heard in

the relevant portion of the cassette [Ex.283]. Such

transcript [Ex.283/A] was prepared and the copies thereof

were given to the learned Advocates for the accused. At

the conclusion of the arguments, the Court Officer, as

per the directions of the Court, on hearing the

cassette [Ex.283] and the equivalent C.D. [Ex.283/3],

corrected the transcript [Ex.283/AA]. Corrected copies of

such transcript were furnished to the prosecution, as

well as to the accused and objections/ comments, if any,

on corrections carried out were invited. The Advocates

for the accused made certain submissions with respect

thereto. The cassette [Ex.283] was thereafter heard by

the Court in the presence of the learned Spl.P.P. and the

learned Advocates for the accused and further corrections

were made in the transcript, to finally make it an agreed

transcript. The transcript [Ex.283/AA] as corrected, is

thus, an 'agreed transcript' of the relevant part of the

cassette [Ex.283] and of the C.D. [Ex.283/3].

 181

331. After the cassette was duly proved, the Advocates

for the accused have given up the contention of

Yasmin not being present at the place of incident when

the police, fire-brigade etc. visited the same in the

morning on 02/03/2002. What has been thereafter claimed

that it shows Yasmin's presence only when the police,

Videographer, fire brigade, etc., visited the place, and

not before that. However, earlier the stand of the

learned Advocates for the accused was that Yasmin was not

present at all, when the riots took place; and that even

on 04/03/2002 - i.e. the date when her statement was

recorded by PI Baria - she was not present in Vadodara,

at all. [Page-717 Para 108 of the Notes of Evidence]. I

can not help observing that even without the cassette

[Ex.283] and independently of it there was sufficient

evidence, - apart from Yasmin's own statement – to prove

her presence on the spot immediately after the incident,

if not, during it. The claim that she was not present

was, any way, rather absurd. First of all, had she not

been present, PI Baria would not have recorded her

statement at all, during investigation. Recording

statement of a person who was not present, or was not

acquainted with the facts of the incident, would not have

been done by PI Baria. Assuming that PI Baria has

carried out investigation honestly, he would not have

recorded the statement of Yasmin falsely without she

 182

being present not only on 01/03/2002, but also on

04/03/2002, as is suggested by Shri Shirodkar, the

learned Senior Advocate, in the cross-examination of

Yasmin. Alternately, even if PI Baria has to have acted

dishonestly during investigation, he would have had no

reason to record the statement of Yasmin, unless she was

present. It is not as if, the accused could be

implicated and a case could be registered because of

Yasmin's statement. No sensible police officer –

irrespective of the question of honesty – would record a

statement of a person, who would be absent both at the

time of the incident and also on the date on which the

statement is supposed to have been recorded. There was

no dearth of persons who were present. If a dishonest

Investigating Officer would be interested in manipulating

the statement, he would manipulate the statement of a

person whose presence during the offence was established

and not of somebody who was not present at all, unless,

it is only through such bogus persons, he can bring

certain facts on record. Even in such a case, he would

show the statement as recorded on a date when such person

would be before him. This being rather elementary, need

not have been discussed in details, but I feel compelled

to discuss it at some length, to show the attitude

exhibited by the defence in lengthening the cross-

examination of Yasmin, without much basis.

 183

332. There is also record in the nature of entries

[portions A/103, A/105 and A/106 in Ex.170, Ex.172 and

Ex.174 respectively], made in the medical papers showing

that Yasmin was very much present when the injured were

taken to hospital on 02/03/2002. Thus, even this would

show Yasmin's presence, at least when the injured were

taken to the hospital. Once this is so, the burden of

establishing that Yasmin was not present during the

incident and she appeared on the scene during the period

after the incident, and by the time the police arrived

and/or by the time the injured were taken to the

hospital, would be squarely on the defence, though it

need not have been discharged by the standard expected of

the prosecution. In any case, all this is rendered

meaningless, as the presence of Yasmin is clearly

established by the cassette [Ex.283] and at least, that

at that point, Yasmin was present, is conceded.

333. The challenge to Yasmin's presence does not appear

to be sincere at all, and such a case was attempted to

built up falsely with the assistance and connivance of

the hostile witnesses. There can be no doubt whatsoever,

that Yasmin was indeed present during the incident; and

that she has witnessed the incident.

 184

334. It may now be examined what is the criticism

levelled on the evidence of Yasmin and what contentions

are advanced by the learned Advocates for the accused, to

claim that she is an absolutely unreliable witness; and

that her evidence is not worthy of credence.

335. Before going deeper into certain aspects of the

mater, it may be observed that the basic challenge to her

evidence is by bringing on record the 'contradictions'

and 'omissions' supposed to be existing in her evidence

when compared with the police record of her statements.

336. Yasmin's statement was recorded by PI Baria [P.W.72]

on 04/03/2002 during the course of investigation. There

are two other statements of Yasmin recorded by the Joint

Commissioner of Police [D.W.1] and the Assistant

Commissioner of Police, Vadodara, [D.W.3] [X-32, X-33/A

respectively for identification] in connection with

certain allegations made by Zahira and Nafitulla

regarding threats allegedly given to them.

337. The first question that was put to Yasmin in the

cross-examination was that whether she had told

everything that transpired on the material day, to the

Court, and Yasmin has replied – rightly in my opinion -

that she was not sure about it and has added that it was
 185

not possible to narrate everything about such a big

incident.

338. In the cross-examination, Yasmin's evidence about

the incident as well as about the identity of the accused

is not at all shaken, in my opinion. An attempt was made

to challenge the identification made by her, by

questioning her specifically with respect to the accused

identified by her. In the cross-examination it has been

got from Yasmin that the names of the accused persons -

whom she had identified in the Court by disclosing their

names – were known to her since prior to the incident.

339. Yasmin has also disclosed information and her

knowledge about the absconding accused Rinku, Mafat and

Munna [original accused nos.7, 8 & 9 respectively].

340. The evidence of Yasmin as regards the details of her

knowledge about the accused identified by her and the

details of information which she has given about them is

not attempted to be challenged. On the contrary, there

is enough evidence to support some of the statements made

by Yasmin regarding these accused persons. For instance,

Haresh and Pankaj are brothers is not in dispute and is

admitted by these accused. That accused no.1 – Rajubhai

and accused no.16 - Shanabhai are related to each other,

 186

is also not disputed. Similarly, accused no.21 - Ravi is

Maharashtriyan - i.e. 'Marathi' - is also not in dispute.

341. Before going deeper into the question of veracity of

Yasmin and the reliability of the evidence as regards the

involvement of the accused identified by her, in the

alleged offence, it may be observed that the fact that

Yasmin knows all the accused identified by her, has to be

accepted. That she knew them since prior to the incident

can not be doubted. In fact, that the accused persons

were from the locality, is clearly established and the

very fact of identifying them by giving their names

indicates prior acquaintance of the witness with the

accused.

342. Yasmin has been subjected to gruelling cross-

examination. However, except bringing on record the

contradictions and omissions in her version before the

police, the Advocates for the accused have not been able

to establish any other infirmity in her evidence. Yasmin

has been questioned as to the circumstances in which she

went to Chhota Udepur after the incident, why she went

and why she did not come back etc. The replies by Yasmin

to these questions appear to be true and convincing.

343. Since Yasmin's first statement was recorded on

 187

04/03/2002, which could have been recorded on 02/03/2002,

Yasmin has been questioned in cross-examination at

length, on this.

344. It would be proper to reproduce the relevant

evidence which has been recorded in question and answer

form.

Ques.: Did you feel at that time that you

should go to the police and inform

them about the incident and give

your statement ?

Ans.: At that time, there was tension about

those who were injured. The

statement could have been given

thereafter also.

[Page-711, Para-106 of Notes of

Evidence]

345. In my opinion, the answer given by Yasmin is proper

and has to be accepted. Further, in my opinion, the

supposition implicit in the question that a victim of

such a serious incident where even the life of her

husband was endangered, would be keen on ensuring that

her statement is recorded by the police, is not based on

reality. It is clearly wrong, in my opinion. It must

further be observed, that police had come to the scene of

 188

offence, had rescued the victims, had taken them to the

hospital and were aware of the incident. The police were

well aware of the incident to the knowledge of Yasmin and

there was no question of informing them. It is one thing

to question the Investigating Officer as to why he did

not record the statement of a particular eye witness

immediately, but it is quite another to question the eye

witness as to why he or she did not insist on getting

his or her statement recorded by the police. The

supposition implicit in the question above, is absolutely

unjustified where such eye witness was aware that the

police were already aware of her being the eye witness to

the incident. Argumentative questions were put to Yasmin

on the aspect of her not going to the police on

02/03/2002 and telling about the incident and giving her

statement. Ultimately, an admission has been elicited

from her that if she wanted, she could have given her

statement to the police on 02/03/2002. This admission

from Yasmin does not help the accused, in any manner,

whatsoever. It is clear that PI Baria did not record the

statement of Yasmin; and thought that it was not

advisable to record the statements of Yasmin and others

at that time. PI Baria has been at length questioned on

the reasons for not recording the statement of Yasmin and

some others on 02/03/2002. He has given reasons for

not doing so. Whether the reasons are proper or not, is

 189

not the question here. What needs to be emphasized, is

that it is an entirely different matter to seek

explanation from a police officer for not recording the

statements of eye witness immediately, though available

to him; and it is quite another to question the eye

witness as to why he or she did not insist on the

statement being recorded. It is not as if, the fact of

Yasmin being an eye witness to the incident was not

disclosed or known to the police or to PI Baria [P.W.72]

in particular. In spite of this if PI Baria did not

record her statement, no fault can be found with Yasmin

on that account. This type of questioning would have had

some value, if Yasmin would have thought that the police

were not aware of the incident, which was, clearly, not

the case.

346. A suggestion was put to Yasmin that she did not go

to the police and talk about the incident and 'give her

statement' because she had not witnessed the incident, at

all. This suggestion has been denied by Yasmin. This

suggestion is devoid of logic, in as much as, in case of

Saherunnisa [P.W.40] and Sahera [P.W.35] [regarding whose

presence during the incident there is no doubt or

challenge] also, no statement was recorded on 02/03/2002.

They also did not give their statements to the police by

going to the police. Thus, not witnessing the incident,

 190

can not be a cause behind not 'giving the statement' to

the police on 02/03/2002.

347. Coming now to the contradictions and omissions said

to be existing in the version of Yasmin when compared

with the police record, I find that there is, in

reality, only one significant omission and that is the

omission to state the names of the accused. The other

omissions and contradictions which have been sought to be

highlighted are absolutely inconsequential. The effect

of the names of the accused not being found in Yasmin's

statement recorded on 04/03/2002, which omission has been

brought on record shall be discussed separately, but how

insignificant the other omissions are, may be discussed,

in brief.

348. Since Yasmin stated about the rioters setting fire

to wakhar of Lal Mohammad [P.W.36] she was asked whether

she stated so to the police. Yasmin replied that she did

state so. She has been contradicted in that respect by

the evidence of PI Baria [P.W.72] who states that Yasmin

did not state so. Now, in the instant case, the fact

that the rioters had set fire to the wakhar of Lal

Mohammad is undisputed and in fact, not challenged at

all, by the accused. The omission, therefore, does not

create a doubt whether Yasmin's statement before the

 191

Court is true or not. On the contrary, her statement

that she did state so, assumes significance, in view of

the fact that it had indeed happened that way. This

would rather discredit the police record, than the

version of the witness.

349. The next contradiction is about naming before the

police 'Social Worker Thakkar' as one of the rioters,

instead of 'Sanjay Thakkar' as stated by Yasmin in the

Court. According to Yasmin, before the police also, she

stated about Sanjay Thakkar only. She was confronted

with a portion marked 'Y' in her statement [X-22 for

identification] recorded under Section 161 of the Code,

when she stated that it was not correctly recorded.

The contradiction, has, however been proved through PI

Baria [P.W.72] and the portion marked 'Y' has been duly

exhibited [Ex.366]. I am not inclined to give any

importance to the so called discrepancy. Social Worker

Thakkar had already died in October, 2001 itself, and

there is no doubt about this fact which is found in the

evidence. The Advocates for the accused themselves have

brought on record that in the statements of all the

occurrence witnesses the name of 'Social Worker Thakkar'

has been mentioned. Shri Shirodkar, the learned Senior

Advocate for the accused, has advanced arguments, with

great vehemence, that the very fact that the witnesses

 192

gave a name of dead person as one of the rioters shows

that they were telling lies. According to him, this also

shows the conspiracy of the witnesses to involve Social

Worker Thakkar, falsely in the offences. Motive

suggested by him, during the course of arguments, for

such false implication was that, 'being a social worker

he was the leader of the Hindu community and therefore,

the witnesses had conspired to implicate him falsely'.

These arguments are so absurd that they are to be dealt

with only because they are vehemently advanced, in all

seriousness. That the statements of different witnesses,

recorded even on different dates, speak about the

presence of a dead person, does not indicate the

witnesses are lying in furtherance of a conspiracy, as

suggested, but, on the contrary, this indicates that the

record is not correct. False implication is made with

the objective of making that person suffer the

consequences of the allegations. A dead person could not

have been arrested and prosecuted, which takes away the

very motive usually behind false implication. The

possibility of Yasmin [and even others] having named

'Thakkar' or 'Sanjay Thakkar' and the police having been

aware of a 'Social Worker Thakkar' being in that

locality, but unaware of his death, recording the name as

'Social Worker Thakkar', bonafide, to have clarity,

cannot be ruled out. In fact, that is the only logical

 193

possibility.

350. The usual 'contradiction' about the place where the

servants were sitting, has been brought on record, which

as already discussed, is totally insignificant and

immaterial.

351. Since Yasmin stated in her evidence that they [she

and others] noticed a number of persons [meaning there

by rioters] coming from various directions, the omission

to state 'various directions' has been brought on record.

In my opinion, this omission is totally insignificant.

352. Another omission on the part of Yasmin to state to

the police about the rioters coming with swords, rods and

mashals was attempted to be established, but according to

PI Baria [P.W.72], the omission consists only in not

mentioning about 'mashals'. PI Baria has pointed out

from a portion in Yasmin's statement [X-22 for

identification] that it speaks of rioters having swords,

rods, etc., with them. The omission has to be with

respect to the substance or essence of the statement and

not such as is arising because of a particular

construction of a statement. Thus, the omission which

relates only to 'mashals' is not significant in my

opinion, even if the fact that in this case, the accuracy

 194

of the police record of the statements recorded under

Section 161 of the Code is doubtful, is ignored.

353. Yasmin's evidence is challenged on the ground that

she omitted to state before the police that the rioters

were shouting and giving slogans 'miyako maro', 'kapo'.

The omission is not with respect to rioters shouting and

giving slogans, but only confined to what were the

shouts. This 'omission' is totally immaterial, in my

opinion. The shouts may be relevant only for gathering

the object of the unlawful assembly, which in this case,

is already established. Since the object has been

clearly understood by the police also, it might not have

felt necessary at all, by PI Baria to record precisely

the slogans that were being given by the rioters.

354. An omission to state that the 'rioters were coming

from different lanes' that has been brought on record.

The dispute is not about Yasmin's stating of the rioters

coming, but her stating that 'they came from different

directions'. The omission to state this – when

there is no contradictory version on record to the effect

that the rioters came from a single and/or a particular

direction - is absolutely insignificant.

355. The only omission which is worth taking into

 195

consideration is the failure of Yasmin to state before

the police about the threat of rape given to her and

others by some of the accused.

356. In the cross-examination, Yasmin [P.W.29] was asked

whether threatening of rape is a serious wrong, which has

been accepted by Yasmin. It was further asked to her

that if the woman would be married, it would be more

insulting and humiliating for her, to which also Yasmin

has agreed. The correctness of the belief of the cross-

examiner that threat of rape would be more insulting

and humiliating for a married woman is difficult to

accept, but since Yasmin has accepted this proposition, I

do not wish to go into that. Yasmin was questioned on

whether she felt surprised on the threat of Jagdish and

Jitu to rape them i.e. Yasmin and others one by one, to

which Yasmin has replied that 'she did'. According to

Yasmin, she did state to the police when her statement

was recorded on 04/03/2002, that she was threatened of

being raped. According to PI Baria, Yasmin did not state

before him about she being threatened to be raped by

Jitu, Jagdish, Mafat and Munno. Yasmin is seriously

criticized during the arguments and remarks about her

character are passed on the ground that she has allegedly

given a false story of threats to commit rape. The

question is whether this story has been falsely invented

 196

by Yasmin. I have carefully considered this.

357. Three contentions are put forth in support of the

claim that the story of being threatened of rape is

false, by Shri Shirodkar, the learned Senior Advocate for

the accused. The first one is that the other eye witness

who have supported the prosecution case viz: Taufel,

Raees, Shehzad and Sailun have not deposed about the

story of rape. I am not impressed by this contention.

It is in evidence and stated by these 4 witnesses also,

that the women were separated from the men and were

dragged elsewhere. The evidence shows that they were

being dragged towards 'jhaadi' or 'jungle'. It can not be

spelt out from Yasmin's statement that the threats to

commit rape on the women, were given in the presence of

the men. Such threats, if given, were likely to be given

after the women are separated from the men and were being

dragged elsewhere and not at the same place and where

the men being assaulted. No attempt was made to elicit

in the cross-examination of Yasmin as to when exactly the

threats were given. There is nothing to suggest that the

threats were given in the presence of the men. Even if

one takes a liberal view of the matter and says that it

was not necessary on the part of the defence to establish

when the threats were given, the fact remains that

failure to do so would certainly not mean that they were

 197

necessarily given in the presence of men. Since there is

no claim, or evidence that the threats to commit rape

were given in front of the said 4 witnesses, their

omission to state this does not make the version of

Yasmin doubtful.

358. The next contention is that no suggestion or case

was put by the prosecution to the hostile witnesses

about the story of rape. Though this is true, no

importance can be given to this aspect. So far Nafitulla

and Nasibulla are concerned, there is nothing to indicate

that the threats of rape to the women were given in the

presence of the menfolk. So far as the women hostile

witnesses Zahira [P.W.41], Sahera [P.W.35] and

Saherunnisa [P.W.40] are concerned, they could have been

certainly asked about it, which has not been done.

Considering the extent of hostility of these witnesses,

however, who made attempts even to deny the facts leading

towards the incident, it may not have been felt necessary

by the Special Public Prosecutor, to put to them

specifically about threats to commit rape on them. The

question is not whether the Special Public Prosecutor was

right in doing so or not, but the question is whether the

failure to put this suggestion or case to the hostile

witnesses affects the evidence of Yasmin on this aspect.

In my opinion, it does not.

 198

359. The next contention is that in Ex.136 which is the

F.I.R lodged by Zahira who was not hostile then, there is

no mention about the threat to rape. I am not impressed

by this contention also. There is a reference in the

F.I.R. about the women being dragged towards the bushes.

There is evidence of the other eye witnesses that the

women being dragged towards the bushes or jungle. Taufel

[P.W.26] has stated about the women being dragged towards

a room, or about being taken in a room. As there were 4

women, it is possible that both the versions are correct.

What is significant is that the fact of dragging women

away from the place where the men were, is consistently

mentioned by all the witnesses. Separating women from

the men and dragging them away towards the bushes or

jungle, obviously was being done with an evil intention

only. This conduct of the rioters undoubtedly lends

support to Yasmin's testimony about threats of rape

having been given to them.

360. There can be no doubt that the women were dragged

towards 'jhaadi' or 'jungle' or 'bushes'. In the

cassette [Ex.283] and the transcript thereof Ex.283/A,

the statement to that effect – viz. that they were being

dragged towards 'jungle' is heard. [isse baandh ke rakha

phir woh jungle mein le ja rahe the.]

[ƒ¬¸¬¸½ •¸¸¿š¸ ˆ½Å £‰¸¸ ¹ûÅ£ ¨¸¸½ •¸¿Š¸¥¸ Ÿ¸½ ¥¸½ •¸¸ £-½ ˜¸½
 199

]. It has already been observed that the cassette has

been properly and satisfactorily proved. The various

contentions about its unreliability as 'evidence' shall

be discussed separately, but it may be observed here that

I have found them to be without merit.

361. [Link] [P.W.63] has also stated that at the

time when D.C.P. Piyush Patel [P.W.67], PI Baria

[P.W.72], fire brigade and ambulance arrived there, 3

Muslim women came from the bushes and met D.C.P. Piyush

Patel and PI Baria. That they came 'from the bushes' is

significant. This evidence of [Link] – which is

unshaken in the cross examination – establishes that the

women had been to the bushes. The women obviously could

not have gone to the bushes on their own leaving the men

lying on the ground in an injured condition.

362. Once the fact that the women had been dragged

towards the jungle/jhaadi or bushes by separating them

from the men is established – as it's clearly the case –,

it lends support to the evidence of Yasmin [P.W.29] that

the women were being threatened of rape.

363. For a woman it causes much embarrassment to speak of

rape or threats of rape being given to them. This is so

even under otherwise ordinary circumstances. In the

 200

instant case, when Yasmin had undergone through such a

terrible incident, it is possible that she did not state

about the fact of having been threatened with rape, to

the police. It is made clear by her that she was not

actually raped. The omission to state specifically that

she was threatened of being raped is not sufficient to

discredit this version of Yasmin, in my opinion

particularly when that 'she was dragged towards the

jungle' is mentioned.

364. Undoubtedly, Yasmin does claim that she told to PI

Baria about the threats to rape, but on this aspect -

viz. of stating it to PI Baria - I am not fully satisfied

that it is true. It is because it is my opinion that PI

Baria has not attempted at all to elicit information. It

would have been extremely embarrassing for Yasmin to

specifically utter the word as 'rape' and mention about

the specific threats in the condition, she was at that

time. However, though she may not be telling the truth

when she says that she did state about the threats of

rape to PI Baria for fear of being disbelieved on this

aspect, I see no reason to disbelieve her evidence on

this aspect. I am of the opinion that Yasmin's evidence

that she was threatened of being raped can be safely

accepted. At any rate, the failure to specifically state

so to the police, if any, can not result in discrediting

 201

her testimony not even on that aspect, leave alone, on

other aspects.

365. Yasmin has been contradicted with her statement

recorded on 27/09/2003, by Shri Kumar Swami [D.W.1], the

Joint Commissioner of Police, Vadodara,. An omission to

state the names of the accused on the part of Yasmin in

the said statement, has been highlighted. Certain

portions in the said statements have been brought on

record by way of contradictions. It must be noted that

this statement has not been recorded during the course of

investigation of this case. In fact, the statement has

been recorded after the trial in the Sessions Court at

Vadodara was over and the accused were acquitted.

366. As Kumar Swami's evidence shows, Yasmin's said

statement [X-32 for identification] was recorded in an

inquiry that was conducted by him, pursuant to certain

proceedings pending in the Hon'ble Supreme Court of

India. Zahira, her sister and two others had filed an

affidavit in the Hon'ble Supreme Court of India,

mentioning about the threats given to Zahira by the Local

M.L.A. Shri Madhu Srivastava. In connection with an

inquiry into the said allegations, the said statement

of Yasmin was recorded by Kumar Swami.

 202

367. Thus, the said statement [X-32 for identification]

was recorded in an inquiry into the allegations made by

Zahira before the Supreme Court of India about not being

able to state the truth during the trial due to the

threats received by her and her family members. Yasmin's

failure to give the names of the accused in the 'Best

Bakery Case' to Kumar Swami during in that statement is

absolutely irrelevant. It is rather surprising that such

an 'omission' is sought to be highlighted. I have no

doubt that it would have been totally irrelevant for

Yasmin to state about the names of the accused in the

'Best Bakery Case'. This is because, in his evidence,

Kumar Swami states that he was not concerned with that

aspect at all; and that he was merely concerned with an

inquiry in connection with the alleged threats received

by Zahira and others.

368. It is true that Yasmin has claimed that she

mentioned the names of the accused in the 'Best Bakery

Case' when her statement was recorded by Kumar Swami, but

this is highly unlikely , in view of the scope and

purpose of the inquiry in which the statement was

recorded. Moreover, nobody was interested in knowing who

the accused were, as the trial was already over and

accused had been acquitted. It appears to me that

Yasmin was rather misled into believing that the

 203

statement recorded by the Joint Commissioner of Police

was also regarding the 'Best Bakery Case', because in the

cross-examination, the statement recorded by PI Baria on

04/03/2002 was referred to as the 'first statement' and

the statement recorded by the Joint Commissioner of

Police was referred to as the 'second statement'. In

fact, after asking Yasmin as to what she stated before

the police when her statement was recorded on 04/03/2002,

she was asked about her statement recorded by the Joint

Commissioner of Police and at that time, Yasmin stated

that she had given the names of the some of the accused

to the Joint Commissioner of Police. Yasmin may not be

telling the truth when she says that she did give the

names of the accused to the Joint Commissioner of Police,

Vadodara, but that must be by reason of an apprehension

of the involvement of the accused being disbelieved, if

the names would not be given.

369. I find that the failure to give names of the accused

persons to the Joint Commissioner of Police is absolutely

immaterial. In fact, there would be no occasion to give

such names. I cannot avoid the temptation of observing

here that on the contrary, keeping in mind the object of

the inquiry thereof, the scope thereof and the fact that

no investigation into the present offence was pending as

regards the accused - who had been acquitted -, if Yasmin

 204

would have given the names of the accused and if the

Joint Commissioner of Police would have recorded the

names, it would have been suspicious.

370. Yasmin was asked whether in the statement [X-32/A

for identification], she stated that at that time, her

mother-in-law and sister-in-law Zahira and others were

staying with Shabana Azmi and Javed Akhtar in Mumbai; and

that they had received a lot of money and therefore they

had given interviews to the channels and newspapers; and

that whatever facts they have stated, were false and

baseless. Yasmin denied having said that

initially, but when confronted with the statement [X-32/A

for identification], admitted having said about their

having received lots of money and their giving interviews

to the channels and newspapers. Yasmin stated that she

might have stated that the information given by her

mother-in-law and sister-in-law Zahira in those

interviews was false and baseless. However, I am not

inclined to give any importance to this aspect. What is

really significant is that the Joint Commissioner of

Police requires a word from Yasmin about the information

given by Saherunnisa [P.W.40] and Zahira [P.W.41] to

various news channels and newspapers being false, without

pointing out any specific interviews or newspapers.

Thus, this shows an improper attempt to get something on

 205

record without a real desire to know the facts of the

case. Kumar Swami [D.W.1], apparently, was not

interested in telling Yasmin what exactly Saherunnisa

and Zahira had stated and seeking facts from Yasmin on

those matters. Instead, the general denial of all

statements made by them and all interviews given by them

has been sought to be recorded in the statement without

bringing on record what those statements are. This shows

an undue anxiety to somehow discredit Saherunnisa

[P.W.40] and Zahira [P.W.41] who were, at that time,

making allegations against authorities in State of

Gujarat and the local M.L.A. Moreover, if the statement

[X-32 for identification] is read, it is clear that the

portion which has been brought on record as Ex.508,

refers not to the information given regarding the Best

Bakery incident, but regarding the allegations which have

been made against the police, as well as Chandrakant

Battu Shrivastav, Madhu Shrivastav, local leaders, and

some others, including the Advocates. The

interviews apparently were given by Saherunnisa and

Zahira making allegations about the threats, improper

conduct of the trial and it is that information, which

according to Yasmin, was false, even if Yasmin indeed

made such a statement before the Joint Commissioner of

Police. Yasmin was asked as follows,

Ques.- Will it be correct to say that in

 206

the interview taken by the T.V.

channels, facts given by you, about

the 'Best Bakery incident', were

true and correct ?

Yasmin answered as follows,

Ans.- I did not state facts relating to

the 'Best Bakery incident'. The

channels had come to me in

connection with the case made by my

husband in connection with the

threats given by Madhu Shrivastav.

371. Yasmin was then asked whether she stated before the

Joint Commissioner of Police that on 19/09/2003, that the

personnel of local T.N.N. channel had taken her interview

in which whatever the facts given by her about the 'Best

Bakery incident', were true and correct. When Yasmin

denied, she was confronted with a portion in statement

[X-32 for identification] and on Kumar Swami [D.W.1]

having said that Yasmin did state so, the said portion

has been brought on record as Ex.509. Now, what facts

Yasmin stated in the interview taken by T.N.N. channel,

which are referred to in this portion, has been brought

on record and forms part of Ex.517(colly). If this

portion is seen, there is absolutely nothing about the

'Best Bakery incident'. The entire interview

 207

concerns itself about there being no fear for Yasmin and

Nafitulla for residing in the same locality; and that the

people in the locality telling them to live happily; and

'that they would not harm them', [-Ÿ¸ ˆºÅ ›¸-ú ˆÅ£½¿Š¸½] [this is

significant], etc. The interview states that what

Saherunnisa and Zahira were talking about the threats

received by them, was all false. It is clear that the

interview speaks about the allegations of threats having

been received as made by Saherunnisa and Zahira at the

material time and does not deal at all with the 'Best

Bakery incident'. As a matter of fact, when Kumar Swami

[D.W.1] himself says that the statement that he recorded

had nothing to do with the 'Best Bakery incident'; and

that he was merely conducting an inquiry for a limited

purpose, that he should record Yasmin's statement which

says that 'the facts stated by her, in her interview

to T.N.N. channel, regarding the 'Best Bakery incident'

were true', is surprising. Kumar Swami ought to have

realized that the facts were not about the 'Best Bakery

incident' at all.

372. In any case, if the defence wants to be benefited by

such admission that whatever facts Yasmin stated in her

interview taken by 'T.N.N. channel' were true and expects

Court to draw an inference that they were about the 'Best

Bakery incident', then to make the contradiction

 208

meaningful, what were the facts, ought to have been

brought on record. The same has not been done.

373. As can be seen, barring the exception of Shri Deepak

Swaroop [D.W.2], Commissioner of Police, Vadodara City,

who was called for establishing the existence of certain

documents [allegedly favourable to the accused] all other

defence witnesses have been examined only with the object

of proving previous statements made by Yasmin. The

defence witnesses have not been examined with respect to

the facts touching the offences, but for a collateral

purpose – viz. for proving that Yasmin had made some

statements previously, which are contrary to what she has

stated before the Court.

374. It would therefore, be appropriate at this stage, to

examine the reliability of the defence witnesses

themselves and the defence evidence itself.

375. Shri Kumar Swami [D.W.1], though a Senior Police

Officer working as Joint Commissioner of Police,

Vadodara, at the material time is proved to be an

unreliable witness. Undoubtedly, he has spoken about his

having recorded the statement [X-32 for

identification] of Yasmin and certain statements made by

Yasmin before him, have been - as already observed -

 209

brought on record. The value to be attached to those

statements and how far they are contradictory or

inconsistent with the version of Yasmin, as advanced by

her in the Court, is a matter that is being dealt with

separately, but what must be recorded here is that the

evidence of this witness is highly unsatisfactory. In

fact, it appears extremely doubtful to me, that he indeed

recorded the statement of Yasmin, as and in the manner

stated by him; and at any rate, it is extremely doubtful

whether the statement [X-32 for identification] is an

accurate record of what Yasmin stated.

376. The purpose of the inquiry in which Yasmin's

statement came to be recorded is clear from the reply

given by him to a specific question to that effect put

to him by the learned Spl.P.P. It would be appropriate

to reproduce the answer given by this witness :

Ans.: In the 4 affidavits [of Zahira and

others] that had been filed, there

were allegations of threats given by

Madhu Shrivastav. Supreme Court had

directed the Director General of

Police to hold an inquiry in the

matter. The Director General

directed the Commissioner of Police,

and the Commissioner of Police

 210

directed me to hold the inquiry.

The purpose was to find out whether

the allegations of threat were true.

[Emphasis supplied] [pg.3606 of the

Notes of Evidence]

377. If this was the scope of the inquiry, many of the

matters appearing in the Yasmin's statement [X-32 for

identification] are immaterial and need not have been

recorded at all. In fact, due to the weaknesses in the

evidence of Kumar Swami, the Court thought it necessary

to put certain questions to him. Among these questions,

a question was asked to him as to what made him think

that Yasmin's statement should be recorded in connection

with an inquiry which he was conducting. This question

was asked, because, taking a prima-facie view of the

matter and just to come to a prima-facie conclusion about

the allegations of threat, Yasmin, who was not residing

in Vadodara at the time when the alleged threats were

given, need not have been questioned, at all. The answer

which is reproduced below is totally unconvincing,

Ans.: Because she was also part of that.

She was the relative of the

witnesses who had filed the

affidavit.

378. Naturally, he was required to be questioned further.

 211

It would be appropriate to reproduce the relevant

questions and answers:

Ques.: Were you not aware, or had you not

the information at the material time

- i.e. when you recorded the

statement of Yasmin - that she was

not residing with Nafitulla since a

few days after the incident ?

Ans.: I had such information.

Ques: Did you think from the material that

was made available to you and the

information that was available to you

that when threats were allegedly

given to Zahira and her family

members, including Nafitulla, Yasmin

was not residing with that family ?

Ans.: During this period - i.e. from the

time I started making inquiry and

till her statement was recorded-, I

came to know that she had given some

interview to a local T.V. Channel.

Ques.: But the question to you is whether

you thought, or not, that when the

alleged threats were given, Yasmin

was not residing with the family, or

with the persons who had allegedly

 212

received threats ?

Ans.: I thought it fit to record her

statement. [Page 3625 to 3626 of

Notes of Evidence]

379. It is easy to note that the witness has attempted

to avoid answering the questions, obviously, on realizing

that it was not at all necessary to record Yasmin's

statement for the purpose of the inquiry which he was

conducting. The question and answer last reproduced

above, indicate that the witness had not replied it at

all and the answer given by him actually reveals that he

was aware of the weakness of the stand that he was

taking. It is only when the Court repeated the question,

he answered as follows:

Ans.: Yes. I did realize that Yasmin was

not residing with them at that time.

The Court thereafter, questioned him directly on the

point as follows:

Ques.: Did you therefore not think that no

light could be thrown by Yasmin on

the actual giving of the threats, as

were alleged by the said persons ?

The witness has answered as follows:

Ans.: I have already explained that during

this period, I came to know that

 213

Yasmin had given an interview to a

local T.V. Channel and therefore, I

thought it fit to record her

statement. [Page-3627 of Notes of

evidence].

380. This makes it clear, that it is on learning about an

interview given by Yasmin to a local T.V. Channel [later

on, revealed to be 'T.N.N. Channel'] that Kumar Swami

thought it fit to record Yasmin's statement. Though he

does not bind himself in saying that otherwise he would

not have recorded Yasmin's statement in the said

inquiry, as that would have depended on the progress

of the inquiry; the fact remains what caused him to

record the statement [X-32 for identification] of Yasmin

is his knowledge that Yasmin had given an interview to a

local T.V. Channel. According to Kumar Swami, he learnt

about such interview given by Yasmin from his police

sources - i.e. the staff who produced a copy of the C.D.

of the programme of the channel before Kumar Swami. Now,

the transcript [forming part of Ex.517] of the said

interview has been brought on record. It shows that

Yasmin had termed the story of threats having been

received by Zahira and others as 'false'. It is after

knowing this, that the statement of Yasmin was recorded

by Kumar Swami. What is significant is that somebody

from the police staff should be so prompt to bring to the

 214

notice of Kumar Swami a statement of Yasmin that was

tending to refute the allegations of threats as made

by Zahira and others. The transcript which Kumar Swami

got prepared from the C.D. of the said interview is also

interesting. It consists of an English translation of

the answers given by Yasmin in Hindi. The transcript is

only of the answers and not of the questions put. This

clearly shows that Kumar Swami was not interested in

actually finding out the truth, but only in giving an

official sanction to the statements made by Yasmin during

an interview given to T.N.N. Channel. It can not be

doubted that anybody having a sincere desire to know what

actually Yasmin stated, would not have been satisfied

only by reading the transcript of the answers given,

without feeling the necessity of knowing the questions,

as well.

381. What is further interesting is that Kumar Swami is

unable to state the manner in which he recorded the

statement of Yasmin. He was asked whether this statement

was recorded pursuant to questioning, or was only a

record of narration made by Yasmin herself on her own.

Kumar Swami replied that it was recorded 'by a

combination of both these'. He claimed to have put

question to Yasmin. To the question, 'in which

language', he replied as 'Gujarati'; and immediately

 215

after giving this answer, added 'and Hindi'. When it was

asked to him in which language Yasmin was answering, he

said that she was answering in a 'mixture of Gujarati and

Hindi language'. The 'mixture' is qualified by him, on

further questioning, as some answers would be given in

Gujarati and some answers would be given in Hindi. Kumar

Swami was asked as to how the answer would come on the

paper and he answered as follows :-

'We have to reduce it to Gujarati language'.

What followed thereafter, is rather interesting and is

worth reproducing.

Ques: Who reduced it to Gujarati language?

Ans.: Myself and the one who wrote

.......... myself.

Ques.: Which language you know better,

Hindi or Gujarati ?

Ans.: Both equally.

Ques.: Did you have any occasion to study

any of these two languages – i.e.

Hindi or Gujarati - in your school

education, or in your college

education, or any further education?

Ans.: I have not studied either of these

languages either in school or in

college.
 216

Ques.: Which language Yasmin used to speak,

according to you ?

Ans.: I have no idea. [Page 3630-3631 of

Notes of Evidence]

382. The last answer is indeed shocking. It shows that

before embarking upon recording the statement of Yasmin,

Kumar Swami did not even bother to know which language

Yasmin used to speak. Undoubtedly, later on, he has

attempted to give some justification by saying that the

'conversation was going on' and 'there was no problem of

communication' which can not be accepted, in as much as,

it was necessary for Kumar Swami to ascertain this aspect

before commencing the recording of statement. Whether

there was a problem of communication or not could not

have been decided by him, without knowing that and

without ensuring whether the communication was proper.

383. Kumar Swami claimed that the transcript [forming

part of Ex.517(colly)] which is in respect of the answers

given by Yasmin in the interview taken by 'T.N.N.

Channel' was prepared immediately after recording

Yasmin's statement. He has further confirmed it by

saying that when the C.D. was given to him by his staff,

there was no transcript submitted along with that.

However, later on, on referring to the transcript and on

 217

referring to statement [X-32 for identification] of

Yasmin, he admitted that the transcript was already

available to him before Yasmin's statement was recorded

and this he says, on the basis of the date which the

transcript bears – i.e. '19-09-2003'.

384. Kumar Swami [D.W.1], admittedly, did not contact

interviewer from the 'T.N.N. Channel' and did not even

ascertain who he was.

The following questions and answers are further

interesting and are worth reproducing :

Ques.: You have said in the earlier

evidence that some answers were

given by Yasmin in Gujarati and some

answers were given by her in

Hindi..?

[Court Note: At this stage, the witness

answers as follows.]

Ans.: I am not now sure that Yasmin was

giving some answers in Gujarati and

some answers were given by her in

Hindi.

Ques.: Do we take it that you are neither

sure that Yasmin answered in any one

language only, nor are you sure that

she used both the languages for

 218

giving answers ?

Ans.: Yes. I am not sure. [Witness

volunteers, “I now say that she used

both the languages, as far as I

remember”].

Ques.: In which language, the questions

were being asked to her ?

Ans.: In both the languages.

Ques: Does it mean that all the questions

were asked in both the languages ?

Ans : Yes.

Ques: May I know the necessity or

propriety of doing so ?

Ans : To make understand as to what she

would say.

Ques: We are unable to follow this answer.

Can you kindly explain?

Ans: What she knows about that – i.e. the

inquiry I was conducting.

Ques: In which language you used to ask

the questions first and in which

language subsequently;

or whether there was no fixed order

as regards the languages in which

the questions were to be put ?

Ans : I don't remember exactly.

 219

385. A further ridiculous answer is given by Kumar Swami

as, that 'first question used to be asked in Gujarati and

then in Hindi'. When questioned about the propriety of

following such a procedure, Kumar Swami gave an

interesting answer, which is worth reproducing:

Ans.: She was staying in Gujarat. So, I

first asked in Gujarati. Since she

did not follow Gujarati fully,

questions were asked in Hindi.

386. Kumar Swami was asked as to when he realized that

Yasmin did not follow Gujarati fully - i.e. after asking

her how many questions. Perhaps, then, by realizing the

unacceptability of the above answer given by him, he

tried to be evasive and stated as:

'In Gujarat, we have to record the

statements in Gujarati. The questions were

put to her in Gujarati, then explained to

her in Hindi. and then the statement was

recorded.'

387. Questions were put to her in Gujarati, then

explained to Yasmin in Hindi then the statement was

recorded. He added that 'both the languages are having

some similarity also', which statement is entirely out

of place and shows that the witness was nervous. Kumar

Swami further stated that Yasmin would answer only after

 220

the question being explained to her in Hindi and she

would answer in Hindi only. It was being translated by

him and his Jamadar Ahmed, in Gujarati. The questions

and answers reproduced above, thus indicate how

ridiculous the version of the witness is, and needs no

special comments.

388. What seems to have happened, if Kumar Swami is right

and is telling the truth, is as follows. Kumar Swami

would put a question in Gujarati. As Yasmin would not

follow it, the same question would be put after

translating it in Hindi. Then he would explain it to

Yasmin who would answer in Hindi. Then the answer would

be translated in Gujarati by Kumar Swami with the help of

His Jamadar and then recorded. The next question again

would be put in Gujarati [though it was clear that Yasmin

did not follow Gujarati fully], then again the same

question would be put in Hindi, then it would be

explained to Yasmin and the same procedure would be

followed. That things would happen in this manner is not

possible; and obviously Kumar Swami cannot be believed in

that regard. This evidence is so ridiculous, that when

considered in the light of other inconsistencies and

infirmities in the evidence of Kumar Swami more

particularly the manner in which he has been giving

replies, creates a doubt – to say the least – in my mind,

 221

that Kumar Swami himself has not recorded the statement

of Yasmin, at all.

389. It appears that the C.D. of the interview given by

Yasmin to 'T.N.N. Channel' which was available, was

sought to be made use of because the statements of Yasmin

recorded therein exonerated those against whom

allegations of having given threats had been levelled;

and as the inquiry was required to be conducted by high

ranking officers, only his signature has been put on

the statement. It is possible that he has taken some

part in the recording of the statement, but certainly he

has not recorded the entire statement. He has, certainly

not taken efforts to probe into the matter.

390. In any event, the omission to state the names of the

offenders in the 'Best Bakery Case' to the Joint

Commissioner of Police, as is sought to be highlighted,

is absolutely immaterial. Further, the contradictory

portion [Ex.507 in X-32] does not show that Yasmin

actually gave any false names of the persons from their

locality, falsely as the offenders. In fact, the

explanation of Yasmin in that regard that her mother-in-

law and sister-in-law Zahira were insisting on giving the

names of some additional persons falsely, has to be

accepted. Thus, this portion [Ex.507] does not discredit

 222

Yasmin, in any manner.

391. As regards the evidence of Ramjibhai Pargi [D.W.3],

Assistant Commissioner of Police, Vadodara City, through

whom the contradiction to the effect that 'on the next

day of the Best Bakery incident, Yasmin went to the

Chhota Udepur at her Mama's place', as supposed to have

been said by Yasmin to this Officer, and as recorded by

him in Yasmin's statement [X-33 for identification] dated

23/10/2003, has been brought on record. I am not

impressed by this 'contradiction', and I am not inclined

to attach any weight to it. First of all, it is clearly

and factually wrong. On the next day of the Best Bakery

incident would mean 03/03/2002. Admittedly, Yasmin's

statement was recorded by PI Baria on '04/03/2002'. As

such, the story of Yasmin having been gone to Chhota

Udepur on the next day after the incident, can not be

accepted. Why Yasmin would make such a statement is

not clear, and when Yasmin denies having said so, I am

inclined to believe her, rather than Pargi. It is not

that the Court has to mechanically accept what a police

officer recording the statement states by disbelieving

what the person concerned suggests in that regard.

Yasmin had not said this when her statement was recorded

by Kumar Swami [D.W.1].

 223

392. The other contradiction on the part of Yasmin as has

been brought on record [as Ex.500] through Shri Pargi to

the effect that 'on her opposing her mother-in-law and

sister-in-law Zahira got her beaten through her husband',

is absolutely of no consequence. Whether a particular

fact was stated or not by the witness to the police is

not 'per se' relevant. This is relevant only for

contradicting the version of the witness as given by

him or her in Court. Here, there is no version of

Yasmin 'that her mother-in-law and sister-in-law had not

got her beaten'.

393. Like Kumar Swami, this officer – Shri Pargi [D.W.3]

- also seems to be interested in getting some matter on

record, which is extraneous to the investigation which he

was doing. The question of recording of the statement of

Yasmin by Shri Pargi arose in the course of investigation

into an offence which was registered on the basis of the

report lodged by Nafitulla which was duly inquired into

by Kumar Swami [D.W.1] and who advised registration of an

offence. [Link].41/2003 in respect of offences

punishable under section 506 Part-II and 507 of the

I.P.C. r/w section 34 of the I.P.C., came to be

registered in this manner. Surprisingly, Shri Pargi has

admitted that though the names of the accused persons

were disclosed in the F.I.R. itself, he had not

 224

taken any action against the said person. The reason

given by him, for not taking any action is that the

investigation was still going on; and that till then no

material against those accused persons had been gathered.

The F.I.R. was registered on 06/10/2003, and

investigation was still incomplete when Shri Pargi gave

evidence in this Court - i.e. on 30/8/2005. Except

highlighting this, I do not wish to comment further. It

is apparent that what Saherunnisa had told Yasmin,

whether she asked Yasmin to falsely give the names of

persons from the 'faliya' as the culprits in respect of

the Best Bakery incident, was not something on which Shri

Pargi was required to concentrate. In fact, that appears

to be rather irrelevant, unless, there is a belief that

'if the accused had been falsely named by Zahira and

others, then threatening Zahira and others, as alleged,

would be justified'. The possibility of Yasmin's

statement [X-33 for identification] having been recorded

only to elicit some matter which was thought as might be

useful to the accused in the 'Best Bakery Case', when a

possibility of retrial was made to appear, can not be

ruled out.

394. Yasmin has been sought to be discredited further by

proving that she made statement exonerating the accused

in the 'Best Bakery Case', in an interview given by her

 225

to the 'News Plus Channel' from Vadodara. [Link]

Pandya [D.W.4] and Shri Ajay Patel [D.W.5] have been

examined for showing that. Interestingly, Yasmin was

earlier questioned about having made certain statements

in her interview taken by 'T.N.N. Channel', but later on,

such statements are said to have been made in the

interview taken by 'News Plus Channel'.

395. The evidence of [Link] Pandya and Ajay Patel

needs to be examined in that regard. [Link] Pandya is

working as the Chief Executive Officer in 'News Plus

Channel' which is a local channel, in Vadodara City. The

channel is owned by her father. Khyati Pandya has stated

that the channel has its own reporters, and when it is

felt that there is anything which ought to be covered,

the cameramen attached to the said channel are sent to

the relevant place for doing video shooting. After doing

the shooting, cameraman comes back to the studio and

gives the 'capture' - i.e. the entire video shooting done

by them. Thereafter, the necessary editing is done. The

news is generally written by reporter bringing it, but

sometimes, somebody else including Smt. Khyati Pandya

would write the news. That this is called the script.

She has explained some technical details as to how a

programme is ultimately telecast. She has explained that

first of all a master C.D. is prepared and then from the

 226

master C.D., about 10 to 12 C.D.'s are prepared, which

are sent to various cable operators in Vadodara City for

telecast.

396. Khyati Pandya [D.W.4] appears to be a highly

interested witness, and much can be observed on that

aspect. However, in the view that I am taking it is not

necessary to discuss the same in details. The evidence

of Khyati Pandya has been adduced only to bring on record

a C.D. which is supposed to contain a record of Yasmin's

interview, and therefore the discussion on the

interestedness of [Link] Pandya can be kept to the

minimum.

397. It is an admitted position that the C.D.

[Art.R/38] produced by the witness is certainly not an

original record, or even a copy of the original record

of Yasmin's interview. Yasmin has not made the

statements in question to Khyati Pandya. Khyati Pandya

was neither the interviewer in respect of the said

interview of Yasmin, nor was she present during any such

interview. The interviewer - one Ketul Pothiwala - has

not been examined. The C.D. that has been produced by

[Link] Pandya was taken out and preserved by her on

the request of Advocate Rajendra Trivedi, who appeared

for the accused persons during the first trial of this

 227

case, held at Vadodara. The story is that after the

programme containing Yasmin's interview was telecast by

the 'News Plus Channel', Advocate Rajendra Trivedi

requested Khyati Pandya to give to him a record of the

same and also to keep a C.D. in safe custody.

398. The genuineness and authenticity of the record of

interview as is found in the C.D. [Art.R/38], is

extremely doubtful.

399. If the evidence of Ajay Patel [D.W.5] is taken into

consideration, it becomes clear that some matter

regarding bomb blast at Kothiyad Nagar, that had not

taken place on the day on which Yasmin's interview is

supposed to have been taken, has been incorporated in the

C.D. Further, it is not clear how Kailash @ Heena is

seen in the C.D. According to Ajay Patel, who has done

the shooting on that day, he had not done any shooting in

respect of Kailash @ Heena; and that he had not done any

shooting in respect of Kailash @ Heena at any time,

whatsoever. However, in the C.D., Kailash @ Heena is

seen. Regarding this, Khyati Pandya stated that this

video shooting in respect of Kailash @ Heena was taken at

the same time. However, later on, she hastened to

correct herself by saying that she had got the 'capture'

at the same time and when and where the shooting was
 228

done by Ajay Patel, had not been asked to him, by her.

Khyati Pandya was questioned as to whether first the

entire shooting in respect of Yasmin's interview was done

and thereafter the shooting in respect of the scene in

which Kailash and her child are seen was done; or whether

shooting of Yasmin's interview was partly done and

thereafter, shooting in respect of the scenes of Kailash

and her child was done and thereafter, again the shooting

of Yasmin's interview was done. She stated that she had

no personal knowledge regarding that. Thus, apparently,

the C.D. is not a record of any particular incident or

happening or of shooting done at a particular point of

time. It is an edited programme. When questions were

raised about the genuineness of the said C.D. during the

course of arguments by [Link] Rao, the Special

Public Prosecutor, no attempt was made to reply to those

contentions on behalf of the accused. What was stated

was that the object was to confront Yasmin with the

record of the previous statements made by her and since

she has agreed having made the statements, it was

immaterial whether the same was proved or not. There is

substance in this contention and therefore, what Yasmin

says in that regard is important.

400. Since the whole basis of the defence is on the

admission of Yasmin of having made the statements, what

 229

are those statements and what are those admissions needs

to be seen. The statements of Yasmin, which she admitted

having been made, are reproduced below, one by one.

“Woh is liye ki main sab sachhai batana

chahti thi ! Is liye meri saas ne aur

meri nanand ne mera naam F.I.R. mein

nahi likhaya” [Ex.514/1].

401. It may at once be observed that question preceding

the answer which has been marked as Ex.514/1, is not, at

all proved. The above statement of Yasmin at Ex.514/1

does not help the defence in any manner. How Yasmin can

be discredited or Yasmin's evidence is rendered

unreliable by reason of having made the statement, is

difficult to understand. Yasmin has categorically stated

that the questioning which has preceded the answer

represented by the portion in Ex.514/1 is not correct.

On this, the learned Advocates for the accused have not

sought to challenge Yasmin. Since neither the evidence

of Khyati Pandya nor the evidence of Ajay Patel

establishes what the question was and since the C.D. is

admittedly an edited version and combination of shooting

taken on different places and different times, even

though Yasmin has admitted to have been made the

statement in question, in reply to what question the

statement was made, has not been brought on record. It

 230

is therefore, of no consequence, at all. In fact, its

meaning cannot be comprehended at all.

402. Another statement of Yasmin, which she admitted as

having made, is as follows:

“Sachhai to yeh hai ke jo Kailash hai,

Kailash ke baare main sab kuchh ye ho raha

tha! jis waqt woh hamala karane aye the, jab

Kailash ka hi naam lekarke woh hamala karate

the! Bole ke “yeh momedian hoke Hindu jaat

ke upe haath lagaya aur ye apani bibi banake

rakhha!” usko jab ladka hua to sab saare

mohalleme hahakaar mach gaya tha! Bole

“ladka hua hai” aur is tarahse bolne lage

aur woh hi baat Kailash ka hi naam lekar sab

gents ko maarte the woh log.” [Ex.514/2]

403. Here, Yasmin has denied having said so, out of

a free will and according to her, her husband had made to

say all this, but even if this is ignored, the fact

remains that these statements of Yasmin are worthless

unless the context in which they are made is also

established. Knowing the questions in response to which

they were given would be absolutely necessary. However,

the learned Advocates for the accused seem to be

satisfied with proving only the answers; and that too

 231

only on the basis of the admission of Yasmin. No attempt

to prove the entire transcript or to examine the

interviewer has been made. Significantly, an application

was made to examine the interviewer Ketul Pothiwala as a

witness for defence, and though summons was issued to

him, he has not been examined. The fact, therefore,

remains that the record of the interview is not at all,

properly proved. In fact, the Advocates for the

accused have made it clear that they are not even

interested in proving the same, and it is their

contention that what they wanted to prove is the

statements made by Yasmin, which have been proved by her

own admission. The learned Advocates for the accused are

right in this, but then, they can not bring the question

preceding the statements in to play, to suggest that the

answers are given to those questions, when those

questions, have not been proved at all.

404. The next statement of Yasmin, which has been

brought on record [marked as Ex.514/4], reads as under :

“Main Supreme Court mein jaane ke liye

bolti hoon ke mein supreme court kya,

kahin bhi mujhe le jaayenge ye jo sawaal

ke liye, to mera ek hi sawaal rahega ki

ye log nirdosh hai aur ye haadse mein the

hi nahin ye log. Jo the, woh baaharki

 232

public thi. Agar koi bhi mere ko bulana

chahta to bula sakta hain.”

405. As regards this also, unless the context in which

the statement is made, is brought on record more

particularly by bringing the questions to which the said

reply was given on record, no importance can be given to

the said statement. In fact, it can not be properly

comprehended at all in the absence of the question. For

instance, 'ye log nirdosh hai aur ye hadse mei the hi

nahi ye log ! Jo the woh bahar ki public thi'! etc. is

rendered meaningless, unless it is shown to have uttered

with reference to the accused in the 'Best Bakery Case'.

That has not been done.

406. The next statement of Yasmin which has been brought

on record is 'Chandrakant Battu to waise hamari jaan

bachai unnhone' [Ex.514/5]. Yasmin states that she said

it as Nafitulla had asked her to say so. Whether this is

true or false is absolutely irrelevant, so far as this

case is concerned, and why it has been brought on record

is difficult to understand. Yasmin had not made any

statement making any allegations against Chandrakant

Battu during the evidence and therefore, her version

[supposed to be contradictory] showing that Chandrakant

Battu had saved their lives, is absolutely irrelevant.

 233

407. It is only in the portion marked Ex.514/3 that the

question asked by the interviewer is reflected.

Curiously, the question is 'to jin logonko pakda hai, woh

log the humla karnewale ?' The present tense

represented by the verb 'pakda hai' indicates that some

accused had been arrested and were actually in custody at

the time when the question was put, but the date of the

interview is given as '19/9/2003' which is after the

accused had been acquitted and before retrial had been

ordered. This shows that there is something wrong with

the record of the interview and therefore, when Yasmin

says that the questions that had preceded her answers are

not properly reproduced/reflected in the C.D., she should

be believed. Not only there is sufficient reason to

doubt the genuineness or authenticity of the C.D. as a

true record of some event or events, but there is

evidence to positively suggest that the C.D. is a

tampered and fabricated document. When such is the

position, the statements of Yasmin by themselves, can

have no relevance. In fact, without knowing the

context in which the statement has been made, its

significance cannot be comprehended at all, and when this

is the position, it cannot be understood to be a

'contradiction'.
 234

408. What is significant in my opinion, is however,

different.

409. It appears to me, that the interviews of Yasmin both

by 'T.N.N. Channel' and by 'News Plus Channel' were taken

somehow to create some evidence to show that the

allegations that were being made by Zahira at that time,

against the State of Gujarat and the Police Machinery in

the State, were false. Zahira was, at that time, making

allegations against the entire State Machinery, saying

that the rioters were being protected by the State

machinery that investigation had not been carried out

properly; and that due to fear she and other witnesses

could not depose against the accused, during the trial.

Zahira was demanding retrial and was being helped by the

N.G.O. - Citizens for Justice and Peace. It is quite

apparent that to counter Zahira, aid of Yasmin was taken

by persons, who were very much upset with the allegations

of the State, not having been diligent in getting the

matter investigated and ensuring a fair trial. The

interview taken by 'T.N.N. Channel' may not be that

objectionable, but certainly the attempt of 'News Plus

Channel' is an heinous attempt to make Yasmin speak

something which could be used to counter the allegations

made by Zahira. Interestingly, a number of local

channels rushed for taking Yasmin's interview at the

 235

material time, though Yasmin was not examined at all

during the first trial. The script [of the news item]

written by Khyati Pandya shows her anxiety to contradict

Zahira and her mother. Yasmin is made use of to get

certain things, said in a somewhat different context.

Things said by Yasmin are then highlighted from a totally

different context.

410. Thus, it is my opinion that though Yasmin appears to

have made some statements, at some point of time, which

are contradictory to what she has stated in the Court,

exactly under what circumstances, and in reply to what

questions, she made those statements is not clear. This

could have been established by the defence who brought

those statements on record, but it has been avoided. No

importance to such statement, can therefore, be given,

even if the person to whom it is attributed admits having

made it. It does not necessarily follow that those

statements are made in the context in which the accused

suggest. The statements, as aforesaid, are not such so

as to indicate the context thereof without any other aid.

At any rate, the explanation of the person concerned as

to the context in which it was made, has to be accepted

when the context has not been brought on record, or

rather bringing it on record has been avoided.

 236

411. Ajay Patel [D.W.5] was asked whether he remembered

any answer, or answers, given by Yasmin in reply to the

questions that were asked to her during the interview.

Ajay Patel stated that he remembered the interviewer

having asked her as to why she had come there and started

renovation work; and that why it was being done. Ajay

Patel also stated that he also remembered that Yasmin was

asked whether the persons who had been involved in the

'Best Bakery Case' were really involved therein; and that

Yasmin had, thereupon, said that the persons who had

been accused in the 'Best Bakery Case', were not the

assailants; and that the assailants were from outside [

]; and that the accused had been falsely implicated. It

is contended by Shri Shirodkar that this evidence of Ajay

Patel has not been challenged; and that this proves that

Yasmin had made the statements which Ajay Patel has

attributed to her.

412. I have considered the matter. In the cross-

examination, when asked that if there would be no record

of the interviewer asking the question to Yasmin as to

why she had come there and started renovation work, etc.,

then the C.D. in question would not be his shooting,

Ajay Patel replied that he did not remember properly as

there has been a time gap. Interestingly, he claimed

that even if such recording, or shooting, would not be

 237

seen in the C.D., still, the shooting would be his

only. In my opinion, apart from the fact that this

indicates his determination to support the evidence of

[Link] Pandya at any cost, it also indicates that his

evidence of his remembering the statements made by

Yasmin, is not reliable. Moreover, according to Ajay

Patel, he did the recording of all the questions that

were put by the interviewer to Yasmin. When a visual and

aural record in the form of the cassette, or in the form

of C.D. prepared therefrom, was available and when that

has not been established or proved, it is not possible to

accept the oral evidence of Ajay Patel regarding the

statements allegedly made by Yasmin given by him from his

memory and of which he is not sure. It is one of the

cardinal rules of law of evidence that the best evidence

– such as the nature of the case would permit - must be

given in all cases. Such oral evidence which he gave,

cannot be safely accepted. This is particularly so,

because the interestedness of this witness in the defence

of the accused is too obvious. Even otherwise, the exact

words of Yasmin cannot be expected to be remembered by

him. What he would remember would be the impressions

formed by him in that regard, which can be a result of

many factors, and might be gathered subsequently. That

Yasmin indeed made such statements, therefore, cannot be

proved by the oral evidence of Ajay Patel particularly

 238

when Yasmin is not specifically confronted with this

aspect, or that Ajay Patel having recorded her interview.

413. At this juncture, it may be observed as to in which

peculiar position Yasmin was placed at the material time

and how her position was sought to be exploited by the

interested parties for achieving their object.

Zahira's making allegations against State of Gujarat had,

apparently, caused concern in a certain section of the

society; and that section wanted to refute such

allegations vehemently. When Yasmin had come to reside

there, she was without any support and apparently, her

relations with the members of Habibulla family were also

not good. She could not very much depend on her husband,

as he had already kept a mistress. The accused who were

the residents of the locality had already been acquitted.

Yasmin had to reside in the same locality. The object of

the persons coming to take her interview was obvious.

Certainly, they were not interested in getting from

Yasmin that threats had indeed been received by Zahira

and Nafitulla. Significantly, when Yasmin was away from

Vadodara and when the accused were being prosecuted,

nobody had thought of what Yasmin had to say in the

matter. That Yasmin came to stay in the locality, where

the accused were also residing, made it quite obvious to

the interested persons that Yasmin would not – rather

 239

dare not - speak against those persons at that time. It

is under these circumstances, that interview of Yasmin

was taken. Obviously, Yasmin who wanted to stay there,

could not have said anything about the threats allegedly

given to Zahira and others. Here, the question is not

whether threats had really been given or not, but what

must be appreciated that there was no occasion to

question Yasmin as regards the innocence or guilt of the

accused in the 'Best Bakery Case', which had already been

over.

414. Under the pressure, - which must be tremendous -

Yasmin might have told something to media, which is

inconsistent with what she has stated in the Court, but

that hardly discredits her. It is quite easy to

understand that Yasmin would not have been able to stay

in the locality, had she spoken against the accused who

had already been acquitted. Rather, it must be only

after she decided not to speak against the accused, that

a decision to go there and reside must have been taken by

her.

415. Can the false statements made by a person before

media, be given the same importance as the statements

made by a person before a public servant who has lawful

authority to inquire or investigate into the matter ?

 240

For instance, when the police are investigating a case,

it is the duty of a person to tell the facts truly. In a

Court of law, certainly, witnesses are bound to tell the

truth. When a police officer questions a person, it is

in order to achieve some lawful object, or in order to do

something, which it is the duty of police to do.

Speaking of media, the media is neither under any

obligation to inquire into any facts, nor is media

entitled to compel a person to give an answer. Media

also can not take any steps or bring the offenders to

book or exonerate on the basis of any answer that may be

given by the persons interviewed. Making a false

statement before media is nothing more than telling an

ordinary lie; and how damaging this would be to the

character of the persons doing so, depends on the

circumstances in which the lie is spoken. Given the

situation in which Yasmin was placed, I do not think that

it was possible for her to condemn the accused openly

when they had been acquitted and had been residing by her

side. The false statements if any, made by her were

clearly under pressure and no importance – certainly not

to the extent of branding her as a wholly unreliable

witness – can be given to the same.

416. In the facts and circumstances of the case, I am of

 241

the opinion that Yasmin's evidence that she did not want

to tell the truth before the media is acceptable. It

appears to have been the strategy of Yasmin which enabled

her to remain in the locality without any problem.

Merely because of the inconsistent statements made by

Yasmin, which anyway do not go to the root of the matter,

I am not inclined to disbelieve the testimony of Yasmin

as given by her in the Court. Moreover, the statements

are not exactly as are sought to be interpreted.

417. To sum up, the evidence of these witnesses who have

supported the prosecution case does not suffer from any

weaknesses, so as to reject it as unreliable. On the

contrary, the evidence of all these witnesses is

consistent and fits in properly with the other evidence

in this case, and/or with the facts which are undisputed.

It is corroborated by the Cassette [Ex.283]. In fact,

when it is conceded that the occurrence or the happening

of the incident is not disputed at all, a large part of

the evidence of these witnesses is already established as

true.

418. The whole basis of the attack on the evidence of

these witnesses is with respect to the omissions and

contradictions in their evidence when compared with the

record of statements made by them, before the police

 242

during investigation. As elaborately dealt with while

discussing the evidence of these witnesses, the concept

of contradictions and/or omissions is not properly

understood by the learned Advocates for the accused, as

is clear not only from the cross-examination of these

witnesses, but also from the express arguments advanced.

Though, in the written arguments [Ex.521/A] filed by Shri

Shirodkar, the legal position as regards the omissions

and contradictions is quite properly stated [particularly

in clauses (a), (b), (c) and (e) of para 9A of page 2

thereof], the arguments actually advanced orally are not

in consonance therewith and all the time, the number of

omissions and contradictions found in the evidence of

each of these witnesses was being counted and emphasized.

It was also argued as if they are to be subtracted from

the evidence. Repeated arguments have been advanced, and

even in the written arguments it is emphasized that 'if

the contradictions and omissions are taken out, nothing

remains in the evidence'. It therefore, becomes

necessary to briefly mention the correct legal concept in

this regard and to indicate what is the proper approach

in such matters.

419. Appreciation of evidence is not a question of law.

Whether the evidence of a witness is to be believed or

not to be believed is not a matter of law. The belief or

 243

disbelief of a statement made by a witness before the

Court depends on so many circumstances, that it is

impossible to lay down any hard and fast rules in that

regard. Contradicting a witness by referring to his

previous statement, is only one of the modes by which a

witness may be discredited. Section 162 of the Code,

which, despite a general prohibition, permits a limited

use of statements recorded by the police during

investigation, for the purpose of contradicting a

prosecution witness, does not lay down any rule of law or

procedure to the effect that the evidence which has been

contradicted in this manner is to be excluded from

consideration. It does not say that the

statements in the evidence which were not made before the

police, shall cease to be the part of evidence before

the Court. The belief or disbelief in any witness or in

any particular statement or statement made by him is

influenced by various factors. The contradictory

statements, or the omissions to mention the relevant

facts at the earliest possible opportunity, are important

to assess the truth or otherwise of a particular version

by a simple rule of logic and prudence. Prudence indeed

requires that a man who makes two different statements on

the same subject on two different occasions may not be

thought reliable and since he advances two versions of

the same incident, which of them is true, or whether none

 244

of them is true, may, very well be doubted. Similarly,

if anything material and significant is not stated at the

earliest opportunity, whether the facts later stated are

an afterthought, would be a question that would arise for

consideration. Thus, the effect of previous contradictory

statements or the omissions to state earlier are such

infirmities that would require a closer examination of

the statements made before the Court; and while assessing

the truth or otherwise of the versions advanced before

the Court, the fact that earlier a contradictory

statement was made or that something important was not

earlier stated, will not be lost sight of by the Court.

There is however, no question of mechanical rejection of

the relevant evidence. There is no 'subtraction' of the

relevant portion from the evidence, as has not only been

suggested, but emphatically put forth by Shri Shirodkar

and Shri Jambaulikar, the learned Advocates for the

accused, [despite mentioning the correct position in the

written arguments (Ex.521/A)]. The very notion

appears to be erroneous and since in this case, the

basic challenge to the evidence of all the supporting

witnesses is only by showing it to be contradictory with

the police record, this may need some further discussion.

420. Section 161 of the Code, does not make it obligatory

for a police officer to make a written record of the

 245

statements of the persons who are interrogated by him

during the course of investigation. The very option

given to the police officer in the matter of reducing the

statements of persons examined in the Course of

investigation, into writing, shows that the record is

meant for the benefit of the investigating officer, and

as it may be necessary from the point of investigation.

The record is not to be signed by the persons making the

statements. Though the accused can legitimately make

use of it for contradicting the prosecution witnesses,

the object of making the record is not to make available,

a previous statement of a witness to the accused.

Moreover, though many of the prosecutions are launched

after police investigation, prosecutions can be launched

on the basis of complaints made by private persons, which

are not preceded by recording of a prior statement of

the witnesses. Only the previous version of the

complainant - in the nature of the complaint itself -

would be available in private prosecutions, and no

previous statements of the witnesses named in the

complaint is likely to be available to the accused in

such prosecutions. Therefore, the very concept that the

record of a previous statement is made for the purpose of

later on ascertaining whether the evidence adduced before

the Court is in conformity with it, is erroneous.

 246

421. A crime is committed. Investigation starts. If the

culprits are found, they are prosecuted. Witnesses are

examined before the Courts of law. The Courts are

required to adjudicate whether the persons prosecuted are

guilty or not. This conclusion about the guilt or

otherwise of an accused before it is to be reached,

mainly, upon considering the evidence - i.e. statements

made before it by the witnesses and the documents

produced before it. Thus, basically the matter is to be

decided on what the witnesses said before the Court; and

that they did not state certain matters before the police

and/or stated something differently, is only a factor

which would influence the Court's assessment of their

evidence. It is only one out of several aspects which

may make the Court doubt the truth of the version of a

witness or his veracity in general.

422. The aforesaid discussion on the evidence of the

supporting witnesses indicates that immaterial variations

between the evidence recorded in Court and in the

statement under section 161, were projected as

'contradictions' and 'omissions'.

423. Much reliance has been placed by the learned

Advocates for the accused on a decision of the Supreme

Court of India in Tahsildar Singh and another Versus

 247

State of U.P. 1959 Cri.L.J. 1231. This Judgement of the

Supreme Court of India is well known, but it does not

even remotely suggest that whatever is contradictory with

the version recorded by the police out of the evidence

given by a witness, it should be excluded from

consideration. In fact, in Tahsildar Singh's case the

question before the Supreme Court of India was as to the

effect of omissions in the police statements. The

Judgement deals with several important aspects, but is of

no assistance to the accused.

424. Reliance is also placed on another decision of

Supreme Court of India in Yudhishtir Versus The State of

M.P. 1971 (3) Supreme Court Cases 436. It is clear from

the reported Judgement that no proposition of law has

been laid down in the said decision and the effect of

omissions was considered with respect to the facts of

that particular case. The Advocates for the accused have

placed reliance on the Head Note (ii) in the reported

Judgement to give an impression that a proposition of law

has been laid down by the Supreme Court of India. A

perusal of the Judgement makes it clear that Their

Lordships were dealing with the facts of that case and

did not, even remotely suggest a rule of general

application in the matter of appreciation of evidence.

As a matter of fact, it has been, time and again, made

 248

clear by the Supreme Court of India itself, that on facts

there can be no precedent; and that appreciation of

evidence is a question of fact and not of law.

425. Moreover, in this case, as shall be discussed later,

the police record of the statements under section 161 of

the Code itself is unreliable. In fact, the Advocates

for the accused have advanced several arguments

contending that it is got up, manufactured and concocted.

This shall be discussed later, but for the time being it

may be observed that when this is the criticism of the

record, it would be rather unreasonable to discredit the

testimony of a witness on the basis that it is in

conflict with such record.

426. In any case, there are no omissions or

contradictions in the evidence of these witnesses which

can be called as 'significant' or 'material', except on

one point. It is regarding the failure to name the

accused who were known to these witnesses by name.

Except this omission, all other omissions are

insignificant and immaterial. None of the contradictions

or omissions which have been brought on record, affect

the basic structure of the prosecution case. In fact,

there is rather a remarkable consistency as to the manner

in which the incident has happened. The effect of the

 249

omission with respect to disclose information about the

culprits, either by their names, or by their

descriptions, or by making a specific claim of prior

acquaintance, however, needs to be considered in

appreciating the evidence of these witnesses as against

the concerned accused, with respect to their identity.

427. The evidence of the aforesaid five witnesses is

fully corroborated by the evidence of several witnesses.

Thus, the evidence of Dayaram Pal [P.W.9], Kiritbhai

Patel [P.W.10] and Ishwarbhai Sutar [P.W.11], who are all

the fire brigade personnel, shows that when they reached

the spot, Best Bakery building was burning. The evidence

establishes that seven dead bodies were brought down from

the first floor by the fire brigade personnel. The

evidence also shows that an old woman who had been

trapped on the terrace of the Best Bakery building was

brought down by the fire brigade personnel. There has

been no challenge to the evidence of these witnesses

which confirms the fact of 9 injured being found on the

spot and being sent to the S.S.G. Hospital and an old

woman being brought down. In fact, in the cross-

examination of Ishwarbhai Sutar [P.W.11] it is got

confirmed from him that he noticed 9 injured persons and

they were removed to S.S.G. Hospital in an ambulance.

The evidence of Dr. Meena Robin [P.W.46] shows that the

 250

injured were brought to the S.S.G. Hospital by the fire

brigade ambulance driver. The injuries suffered by

Taufel [P.W.26] Raees [P.W.27], Shehzad [P.W.28] and

Sailun [P.W.32] have already been mentioned earlier. The

evidence of [Link] Robin, which is supported by the

evidence of Rameshbhai Rathwa [P.W.16] and Gordhanbhai

Makwana [P.W.17], which, in turn, is supported by the

relevant entries made in the official record, shows that

the nine injured persons that were removed to S.S.G.

Hospital were Raees [P.W.27], Sailun [P.W.32], Ramesh

Vaijnath Sharma @ Raju, Shehzad [P.W.28], Nasibulla

[P.W.30], Nafitulla [P.W.31], Taufel [P.W.26], Prakash

and Baliram. It may be appropriate at this stage to

record the injuries found on the person of Prakash,

Baliram and Ramesh also. The injuries show how brutal

and merciless the assault was. The injuries are also to

be noted in the context of the evidence of the hostile

witnesses - which shall be discussed later - claiming

that those who were injured during the incident, were so

injured while on the terrace only. Prakash, Baliram and

Ramesh have died, as per the medical opinion, due to

these injuries, which were antemortem. It would not be

out of place to note the injuries here itself.

I] Prakash :

i) S.S.W. on Rt. forehead, from midline

to Rt. eyebrow – 8cm oblique,

 251

ii) S.S.W. on Rt. frontal region, from

anterior hairline to obliquely

downwards 3cms above injury no.(1),

size 6cms,

iii) Incised Wound of size 3cms X 1cm,

bone deep on Left eyebrow,

iv) Incised wound on Left frontal region,

5cms away from midline size 3cms X

1cm,

v) Incised Wound on Right parietal

region, size 3cms X 1cm, in midline

3cms front of Right parietal dome,

vi) Contusion on Right parietal region 2

cms down and to Right parietal dome,

size 6cms X 3cms, reddish,

vii) S.S.W. on nape of neck, horizontal,

size 15 cms,

viii) Multiple contusions in midline

occipital region in area 4cms X 4

cms, red in colour,

ix) Surgical tracheostomy wound – in

front of neck.

II] Baliram :-

i) Incised Wound on the back of the

 252

occipital region below occipital

protuberance, size 3cms X 2cms X bone

deep,

ii) Contusion on Right scapular region

back, size 5cms X 2cms.

III] Ramesh :-

i) Chop wound over right side of chin,

size 6cms X 2cms X mandible bone

deep,

ii) Incised wound Right alae of nose and

Rt. cheek – 5cms X 1cm X muscle deep.

iii) Chop Wound over Left forehead on the

outer aspect of Left eyebrow, size

4cms X 2cms X cranial cavity deep.

iv) Abrasion on the tip of Left shoulder,

size 3cms X 1.5cms, red in colour.

v) Tracheostomy in the midline.

vi) 4 chop wounds back of head on Left

side occipital region length varying

from 4cms to 6cms, width 1cm to 4cms

X bone deep

vii) Punctured wound – 2 in nos. left

cheek, size 0.6cm in oral cavity

deep

viii) Contusion over Left hypochondrium

over area covering 4cms X 1cm

 253

That Prakash, Baliram and Ramesh had sustained the

injuries as recorded above, is proved by the evidence of

[Link] G. Rathod [P.W.48], [Link] P. Desai

[P.W.49] and [Link] Basu [P.W.47], which is duly

corroborated by the memorandum of the post-mortem

examination [Ex.201, Ex.208, Ex.194 respectively].

428. Thus, the evidence of the fire brigade

personnel, coupled with the evidence of [Link] Robin

[P.W.46], Rameshbhai Vajubhai Rathwa [P.W.16] and

Gordhanbhai Mithabhai Makwana [P.W.17], together with the

relevant record, duly proved, lends support to the

version of the supporting eye witnesses, on several

aspects.

Evidence of Police Officers who had gone to the spot.

A] SHRI [Link] [P.W.63]

429. The evidence of the police witnesses - viz. PSI Shri

[Link] [P.W.63], D.C.P. Shri Piyush Patel [P.W.67]

and PI Shri [Link] [P.W.72] - also corroborates the

version of the supporting occurrence witnesses,

particularly with respect to the happenings of the

morning incident. These are the officers who reached on

the spot immediately after the incident. In fact, it is

when PSI Rathod, who was the first of them to reach the
 254

spot went there, that the rioters ran away. It is he and

his staff who noticed the nine injured persons whose

hands and legs were tied and who had injuries inflicted

by sharp weapons, as also burn injuries on their bodies,

lying on the rear side of the Best Bakery building. The

evidence shows that these nine persons were Taufel

[P.W.26], Raees [P.W.27], Shehzad [P.W.28], Nasibulla

[P.W.30], Nafitulla [P.W.31], Sailun [P.W.32], Baliram,

Prakash and Ramesh, though PSI Rathod has not named them.

430. The evidence of PSI [Link] and D.C.P. Piyush

Patel not only corroborates the evidence of the

supporting occurrence witnesses, but it is of independent

weight and value in itself. It therefore requires to be

discussed in some depth. It would be

convenient to discuss the evidence of PI Baria [P.W.72]

also, so far as it relates to the facts deposed by these

two witnesses, along with their evidence.

431. PSI [Link] [P.W.63] states that on 02/03/2002,

while patrolling within the area of his Police Station by

wireless mobile van-I, he received a message and went to

the spot. He categorically states that on seeing the

police mobile van, the mob ran away. The mobile van was

parked near the Hanuman Temple. He noticed the Best

Bakery building burning and on hearing voice of some

 255

persons crying, he and his staff went to the rear side of

the said house. PSI Rathod categorically states that he

and his staff noticed 9 persons whose hands and legs were

tied and who had sustained injuries on their bodies, as

aforesaid. PSI Rathod immediately gave a message to

police control and to PI Baria informing about the 9

persons being there in burnt and injured condition and

also gave a message calling for Fire-Brigade and

ambulance. PSI Rathod states that he and his staff then

started untying hands and legs of said 9 persons. It is

at that time, that Shri Piyush Patel [P.W.67], D.C.P.

[South] and PI Baria [P.W.72], the fire brigade and the

ambulance arrived there. PSI Rathod then states about 3

Muslim women coming from the bushes and meeting D.C.P.

Patel and PI Baria. He then states about extinguishing

of the fire on the first floor of the building, 7 dead

bodies being brought down from the first floor, the

injured being put in the ambulance, and being sent to

S.S.G. Hospital and one old woman being brought

down by the Fire-Brigade from the terrace. Rathod also

states that the D.C.P. and the police staff started

searching for the accused in the surrounding area.

432. There are five important aspects that emerge from

the evidence of Rathod – viz.

 256

i] The mob was there till the police came.

ii] The police noticed 9 persons whose hands and legs

were tied and who had injuries inflicted by sharp

weapons, as also burn injuries, lying on the rear

side of the 'Best Bakery' building.

iii] The police untied the hands and legs of the said 9

persons and sent them to S.S.G. Hospital.

iv] After Shri Piyush Patel, PI Baria and other

policemen arrived there, 3 Muslim women came from

the bushes and met D.C.P. Piyush Patel and PI

Baria.

v] D.C.P. Piyush Patel, PI Baria and the police staff

started searching for the accused in the

surrounding area.

433. The evidence of PSI Rathod is fully corroborated

by the evidence of PI Baria and D.C.P. Patel. In fact,

except the incident of the 3 women coming and meeting

D.C.P. Piyush Patel and PI Baria, there is not much

challenge to the evidence of this witness. His statement

was recorded during investigation.

434. In the cross-examination, a point is sought to be

made out that his statement was recorded only on

14/03/2002; and that he was not on leave during the

intervening period. The suggestion is that there has been

 257

a delay in recording of his statement. I am not

impressed by this suggestion. If there would be delay in

recording the statement of a witness, the possibility of

concoction can not be overlooked and one may doubt the

version of such witness. However, in the instant case the

version of PSI Rathod is well supported by other evidence

and there is no question of doubting his presence on the

spot or his version of the incident. Moreover, what is

significant is that the delay in recording the statement

can properly be understood. How tense the law and

order problem was, has been said by PI Baria [P.W.72] and

also PI Kanani [P.W.74]. In the background of the number

of cases that were being registered, the number of law

and order problems created by the communal riots, it can

not be said that the delay in recording the statement of

PSI Rathod is unreasonable or suspicious. 'Delay' is a

relative and subjective aspect. It cannot be

considered without looking into the needs of the

investigation at a particular stage. For instance,

if an eye witness's statement is to be recorded, without

which further investigation cannot proceed, it would be

difficult to accept the explanation for delay, but where

the statement is not expected to give a new direction to

the investigation, or where further investigation is

progressing without making it essential to record the

statement forthwith, the explanation for the delay may be

 258

easy to accept. It may be observed, further, that the

investigation carried out by PI Baria was rather

unsatisfactory as shall be discussed at an appropriate

places, but Rathod's statement came to be recorded soon

after the investigation was entrusted to PI Kanani.

435. In the cross-examination it has been brought on

record that PSI Rathod had not made any entry anywhere

regarding coming of D.C.P. Patel and PI Baria on the

spot. Since D.C.P. Patel's presence and also of PI

Baria's presence on the spot is not disputed and no

argument has been advanced even remotely suggesting that

they had not come to the spot, whether he made any entry

anywhere regarding it, is immaterial. Again, why and

where he was supposed to make an entry is not clear.

436. A question was asked to PSI Rathod [P.W.63] in the

cross-examination as to who told him that D.C.P. Patel

[P.W.67] and PI Baria [P.W.72] and staff started

searching for the accused in surrounding area, to which

PSI Rathod has replied that it was not told to him by

anyone. The attempt which was, perhaps, to show that PSI

Rathod had no knowledge of this aspect, has thus failed.

It is thereafter, that the omission of PSI Rathod to

state so in his previous deposition [Ex.251] before the

Court at Vadodara is brought on record. I do not think

 259

this omission to be significant. I do not think that

since he did not state it before the Court at Vadodara,

what he stated here did not happen at all. This aspect

is supported by the evidence of D.C.P. Piyush Patel and

PI Baria and in the course of their evidence it will be

discussed. A general observation regarding the effect

of telling before this Court the facts not stated before

the Court at Vadodara, shall be made while discussing the

evidence of PI Kanani because this aspect has been much

highlighted by the defence during the cross-examination

of PI Kanani.

437. There is no challenge to the evidence of this

witness to the effect that he reached the spot in

question, about the time at which he reached there, that

the building was burning, that he saw nine persons lying

injured on the rear side of the building, etc.

438. Omission to state in his statement recorded during

investigation about the three Muslim women coming to

D.C.P. Piyush Patel and PI Baria, was attempted to be

brought on record. However, from the evidence of PI

Kanani, it is clear that the omission is not about the

happening of the incident, but with regard to the details

of the place from where the Muslim women came and about

specifically mentioning about the names of D.C.P. Piyush

 260

Patel and PI Baria as the persons to whom they came. PI

Kanani's evidence [on pages 3228, 3229 of notes of

evidence] is clear in this regard. The incident can not

be doubted at all. This will be further dealt with while

considering the evidence of D.C.P. Piyush Patel and PI

Baria in that regard.

439. An attempt was made to bring on record omission on

the part of PSI Rathod to state in his statement recorded

during investigation that D.C.P. Patel and the police

staff started searching for the accused in the

surrounding area. However, PI Kanani who recorded the

statement has made it clear that there is no such

omission; and that PSI Rathod did state accordingly.

The contention of the learned Advocates for the accused,

on the basis of some variation arising due to the manner

of recording, that there exists an omission to state a

material fact, can not be accepted.

440. Interestingly, it was asked to PSI Rathod [P.W.63]

at the conclusion of the cross-examination as follows:

Ques.- Did it happen that 3 Muslim women

came running towards you in a very

frightened condition from the East

side. Those women told you that a

mob of Hindus have ransacked their

 261

residential building and bakery, and

looted the same, and set the same on

fire, and there were other persons

also on the first floor in that

building ?

Ans.- It did happen. It happened when the

Mobile staff were in the process of

untying the injured persons.

441. The contention of the defence with respect to this

question and answer is that the story of the women

giving names of certain persons as the culprits is

falsified; and that all that they told was about a mob of

Hindus. I am not impressed by this contention, because

this is said to have happened before the arrival of

D.C.P. Piyush Patel and PI Baria. Therefore, this

evidence can not be used to challenge and falsify the

evidence of PI Baria and D.C.P. Piyush Patel about the

three women giving some names to them, as the names of

the culprits or offenders. Moreover, there is a more

fundamental and basic question as to whether the

description of the offenders as 'mob of Hindus' is

inconsistent with the mob consisting of any known

persons. The answer has to be a 'No'. Therefore,

because a person earlier spoke of a 'Hindu mob', he or

she cannot be disbelieved, because he or she immediately

 262

thereafter mentioned names of some as persons present in

the mob. This will be discussed further, while dealing

with the contention raised in the context of the history

of the incident, as given by the victims or injured, to

the Medical Officer at the time of the admission in the

hospital.

442. In my opinion, the evidence of PSI Rathod [P.W.63]

is satisfactory, unshaken, and can be safely relied upon.

[B] EVIDENCE OF D.C.P. PIYUSH PATEL [P.W.67]

443. In his evidence D.C.P. Piyush Patel [P.W.67] states

that at about 10.45 a.m. while he was patrolling on

02/03/2002, he heard a message from Panigate Mobile-I to

the Control Room, saying that on Daboi Road, Hanuman

Tekdi, 4 to 5 houses had been set on fire; and that

persons were burning; and that, ambulance and fire

brigade be sent immediately. That on hearing this

message, he went to the Gajrawadi Fire Station, took the

fire-brigade and the ambulance personal with him and went

to the spot. The message was heard by him at about 10.45

a.m. and according to him, he reached the spot within

about 6 to 7 minutes therefrom. This part of his

evidence is in conformity with the evidence of PSI Rathod

[P.W.63] and PI Baria [P.W.72]. D.C.P. Patel also states

about the building being burning when he reached there;

 263

and that on the rear side of the building, he saw 9

persons lying injured. D.C.P. Patel states that PSI

Rathod came to him and informed him that those 9 persons

had been tied by wires; and that they were attacked on

their heads and were also burnt. This corroborates the

evidence given by PSI Rathod and also confirms his

evidence regarding having reported the same to D.C.P.

Patel. D.C.P. Patel then speaks of a lady - wife of the

owner of the building – along with two girls coming to

him and the ladies telling them about the incident.

D.C.P. Patel has narrated what they told him. According

to him, they said that a mob of about 1000 to 1200

persons of Hindu community had 'gheraoed' the said

building throughout the night; and that the persons –

viz. Jayanti cha ni lariwala, Jayanti's son, Mahesh,

Kiran, Munno, Pratap, Jitu, Lalo and Painter - and a mob

of persons from Hanuman Tekdi and surrounding area had

pelted stones, set the building on fire and had cut the

telephone wires. That they also told D.C.P. Patel that

the victims – i.e. the ladies and others – had hidden

themselves on the terrace of the building; and that in

the morning, the mob had assured them that they - the mob

- would not do any harm to them and so they had come

down. That the mob had, thereafter, tied the hands and

legs of the victims and started assaulting them.

According to D.C.P. Patel, the ladies also told him that

 264

they had gone to the bhaiyya's place; and that the mob

had tried to drag them towards the bushes. D.C.P. Patel

was also told about there being other persons trapped

inside the building. D.C.P. Patel then speaks of one old

lady, who was on the terrace of the said building, being

brought down by the fire brigade personnel and also about

bringing down 7 dead bodies from the first floor of the

said building.

444. D.C.P. Piyush Patel [P.W.67] has stated about the

injured being sent for medical treatment and his

going to the hospital. Before that, according to him,

combing in the area was done, but all the houses were

closed and police did not get anyone.

445. The statement of D.C.P. Patel was recorded by PI

Kanani [P.W.74] on 24/03/2002.

446. In the cross-examination, nothing which would

discredit D.C.P. Patel, has been brought on record.

D.C.P. Patel was asked questions inviting discussion on

various legal topics and principles of evidence. He was

asked about whether knowing the names of victims in the

investigation of any offence is important, why it is

important, whether he agreed that knowing the names of

the accused or the offenders at the earliest is

 265

important, etc. etc. Nothing turns on such questioning

and the answers given pursuant thereto. It was

thereafter sought to be ascertained from him, whether he

was supervising and guiding investigation, when he said

that though he was supervising and guiding, it was not

fully, as he was busy in controlling the riots. It was

asked to him as to whether in the next three weeks from

02/03/2002, he was kept informed about the progress of

case such as, arrests made, etc. to which, he has replied

that the investigation was not with him after 10/03/2002.

447. D.C.P. Piyush Patel [P.W.67] has been questioned on

the aspect as to whether he directed PI Kanani to record

his statement or whether he requested him to record his

statement. He is also questioned as to whether PI Kanani

called him or he called PI Kanani. According to me,

there is no point in such cross-examination. An attempt

has been made to create a feeling – that there exist

certain discrepancies – not on the basis of there being

different and discrepant versions, but by playing with

the words. In my opinion, whether D.C.P. Patel directed

PI Kanani, or whether he requested him are not two

different matters at all. D.C.P. Patel is a superior

officer of PI Kanani. At the same time, when PI Kanani

acts as an Investigating Officer and records the

statement of D.C.P. Patel, D.C.P. Patel is only a person

 266

acquainted with the facts of the case. Whether D.C.P.

Patel directed or requested is a question of perception

of the concerned persons – i.e. D.C.P. Patel and PI

Kanani. It also depends on how they or any of them,

would like to put it, which may depend on where they are

narrating it. In any case, D.C.P. Patel has explained

that there had been a talk between him and PI Kanani on

the point of requirement of recording the statement of

D.C.P. Patel during the investigation; and that,

actually, the had been called by PI Kanani for recording

his statement and when it was decided, PI Kanani was

called by him. There is no suggestion that they did not

meet at all; or that no statement was recorded at all and

therefore, nothing turns on who called whom.

448. D.C.P. Piyush Patel [P.W.67] has been asked the

cause as to why he remembered that he called the

Investigating Officer at a particular time and place.

D.C.P. Patel has rightly replied that he could not say

why he remembered it. According to me, he is right. The

causes as to why certain incidents are retained in memory

cannot be explained by a person – at least not always -

though he would retain the memory thereof.

449. Attempt has been made in the cross-examination, to

show that the evidence of D.C.P. Patel, as given by

 267

him in the Court at Vadodara, is inconsistent and/or

contradictory to what he has stated here. I do not think

that there are any variations or contradictions in the

evidence of D.C.P. Patel as deposed by him in this Court

and between the record of his deposition in the Court at

Vadodara. In my opinion, the attempt that has been made

in the cross-examination is only to play with the words,

without trying to bring out any variations or

discrepancies in the happening as stated by him. The

inconsistency between the versions about the time of

recording his statement is of no consequence unless the

recording of the statement itself is an issue that is

under challenge.

450. D.C.P. Patel [P.W.67] has admitted that he did not

note down the names given by the said 3 women as the

names of offenders or accused on any paper, at any time,

till his statement was recorded. On this aspect, PI

Baria [P.W.72] has stated that D.C.P. Patel did note down

the names given by the said 3 women. Undoubtedly, there

is conflict between the evidence of D.C.P. Patel and PI

Baria on this aspect. No paper containing any names

supposed to have been noted by D.C.P. Patel at that time,

has been produced before the Court. It is contended that

this conduct of D.C.P. Patel in not recording the names

of the accused or not directing PI Baria to record the

 268

names is unacceptable and D.C.P. Patel cannot, therefore,

be believed on this aspect. I do not agree with this

contention. D.C.P. Patel has been asked as to why he did

not instruct PI Baria to record the names of the said 3

women and to record their statements on the spot and

D.C.P. Patel has replied, rightly in my opinion, that PI

Baria was there itself; and that there was no question

of telling him. D.C.P. Patel had no reason to believe

that the needful would not be done by the Inspector in-

charge of the concerned area and there was hardly any

reason for him to give any direction to him at that time

itself, as to how and what steps should be taken by him.

D.C.P. Patel was further questioned on this aspect and it

would be appropriate to reproduce the relevant question

and answer.

Ques.-Did you tell him; because they had

come to you ? [Emphasis is on 'you'].

Ans.- They had come to 'us'. We were

together. [page 2116 of Notes of

Evidence].

Because D.C.P. Patel used the expression 'us', he was

sought to be contradicted by his statement in the

examination-in-chief to the effect that they had come to

him by emphasizing the expression 'me' used by him.

D.C.P. Patel could not challenge what was recorded and

since the record shows the expression 'me', he admitted

 269

having said it. In my opinion, there is no discrepancy

at all and there is no distinction in the narration of

the events whether the expression used was 'us' or

whether it was 'me'. Though in the portion marked as

'A/134' the expression 'me' has been used, further

evidence of D.C.P. Patel refers about the ladies telling

them and uses the expression 'us' [The ladies told us

about the incident. page 2097, para 6]. This again is a

matter of using a particular expression and not of there

being any actually different situation or happenings.

There is a consistent version that D.C.P. Patel [P.W.67],

PI Baria [P.W.72] and other officers were together. It

is not that what was stated by the women could not be

heard by others, who were very much there, or was not

intended to be a disclosure to anybody else, except

D.C.P. Patel. Since it is not that D.C.P. Patel alone

was there, the variations resulting from the use of

expression 'me' and 'us' etc, are immaterial.

451. In the cross-examination of D.C.P. Piyush Patel

[P.W.67], he has been questioned at length, as to why he

did not ask PI Baria [P.W.72] to record the names of the

said women and to record their statements on the spot, to

which, D.C.P. Patel has replied that the injured were

required to reach the hospital; and that he had other

steps to take. Even disregarding the explanation given

 270

by D.C.P. Patel, in my opinion, the basic assumption that

he ought to have instructed PI Baria accordingly, is not

very sound. The names are to be noted for the sake of

record and those women, obviously, were not going to

run away. The situation at the scene of offence when

extinguishing the fire and the rescue operation was going

on, can well be imagined; and if cannot be imagined

properly, the aid of the cassette [Ex.283] can be taken

for visualizing the situation. Moreover, one fails to

understand what conceivable difference it would make, if

the names would be recorded on the spot or a little

later. It is suggested to D.C.P. Patel that actually no

names of the offenders or the culprits were disclosed on

02/03/2002 at the spot; and that, that is why, he did not

and could not instruct PI Baria or any officer to record

their statements or register a case. This suggestion has

been denied by D.C.P. Patel. The suggestion itself is

absurd. It presupposes that unless the names of the

offenders would be disclosed, no case of any offence

would be registered. This is absolutely incorrect.

If at all it was necessary to register a case at that

place itself, it could have been done irrespective of the

fact whether the names of the offenders were disclosed at

that time or not. If no anxiety was felt of recording

the statements of the said 3 women because of the belief

that the said women would become available for inquiry or

 271

for the purpose of recording their statements, then,

there is nothing wrong in it. In fact, considering the

situation on the spot at that time, under the

circumstances, it would not ordinarily be thought by

anyone of making such record at that stage itself.

452. D.C.P. Piyush Patel [P.W.67] has stated about 3

ladies having been seen by him, talking to PI Baria

[P.W.72] in the hospital and PI Baria writing down what

one of them was narrating. D.C.P. Patel was asked

whether that was important and he has answered in

the affirmative. In this background, an omission to

state this in his statement [X-89 for identification]

recorded by PI Kanani [P.W.74], is sought to be brought

out. According to me, this omission is insignificant and

immaterial. D.C.P. Patel's admission that it was

'important', is of no consequences, in my opinion. It is

clear that this incident is not important at all by

itself. I fail to see as to what turns on whether D.C.P.

Patel saw these ladies, talking to PI Baria and

narrating. D.C.P. Patel's admission that it was

'important' as made by him in the Court, is based on the

fact that Zahira [P.W.41], whose statement was recorded

by PI Baria in the hospital, has, later on, denied having

made the statement. It is the denial of Zahira which

made this aspect 'important'. It could not have been

 272

thought of, or imagined either by D.C.P. Patel, or by

PI Kanani that the lady whose statement was recorded by

PI Baria is not going to admit it and say that she never

made any statement. Since when the evidence was given by

D.C.P. Patel in the Court, Zahira [P.W.41] had turned

hostile and had disowned her statement recorded by PI

Baria in the hospital, this fact might have been thought

of as 'important'. It could not have been thought of as

'important' on 24/03/2002 and therefore, non-mention of

this, in his statement, recorded by PI Kanani, is

absolutely insignificant. In fact, in my opinion, even

after Zahira has denied having made a statement which was

recorded by PI Baria in the hospital, this evidence of

D.C.P. Patel is not important at all. It is contrary to

reason to accept that no inquiries were made with Zahira

by PI Baria in the circumstances, though both – PI Baria

and Zahira – were together and PI Baria was aware of the

happenings of the incident, having taken Zahira with him

from the spot itself. I see no reason to disbelieve

D.C.P. Patel on this aspect only on the ground that this

was not stated by him before PI Kanani. No material was

being collected by PI Kanani to show that First

Information Report had been indeed and in fact, lodged;

and he could not have even imagined collecting of

material to support such a claim. As a matter of fact,

it would have been rather curious and would have given

 273

rise to suspicion, had, at that time, collection of

material showing that the F.I.R. had been indeed lodged

would have been attempted to. There is, therefore, no

substance in this contention. Since the fact that D.C.P.

Patel indeed went to the hospital, that PI Baria and

Zahira both went to the hospital, are not in dispute at

all, there is nothing unbelievable in the version that

D.C.P. Patel saw one of the 3 ladies, talking to PI

Baria in the hospital and Baria recording what she was

telling. When a fact has indeed happened, as is proved

from the evidence on record, why and how a contention

that D.C.P. Patel had not seen this happening at all, has

been advanced, is difficult to comprehend.

453. With respect to D.C.P. Patel's evidence in

examination-in-chief that he inquired about the condition

of the injured; and that he was told that most of them

were not conscious enough to speak, he was questioned

that this was 'important' as had they been conscious,

their statements could have been recorded. When he

answered in affirmative, he was questioned as to whether

he stated before PI Kanani regarding this. This is

apparently done to bring out a so called omission. I am

not at all impressed by this effort. First of all, what

was important was the condition of the injured, and

not making a record of that. This type of questioning

 274

and the arguments based on that, exhibit an unawareness

of the requirements of the investigation. I see no

reason for PI Kanani to have inquired with D.C.P. Patel

as to whether he had inquired about the condition of the

injured and what he was told, etc. I also do not see any

reason for D.C.P. Patel to state this, on his own, to PI

Kanani as if he was anticipating that a dispute on their

condition was likely to crop up and would hasten to make

a record of this fact immediately. Incidently, no

dispute about the condition of the injured, which anyway

can be gathered from the medical evidence, has been

actually raised.

454. D.C.P. Patel was confronted with his statement, made

by him before the Court at Vadodara that he had gone

to the S.S.G. Hospital before 12.00 noon. The relevant

portion has been duly marked as 'A/135' and it shows that

D.C.P. Patel indeed said so. However, this is obviously

a wrong statement even if he said it, in as much as, it

is clear that the process of admission of the injured in

the hospital was still going on by 12.00 noon. PI Baria

had gone to the S.S.G. Hospital after 12.35 noon. The

record of the E.P.R. and the entries made in the police

diary, regarding information received from the hospital,

clearly make it impossible that D.C.P. Patel had visited

the S.S.G. Hospital before 12.00 noon and had made

 275

inquiries with regard to the injured. Though D.C.P.

Patel was made to admit having made the statement, he was

not asked whether it was factually correct or not. As

such, it cannot constitute substantive evidence to

establish the time of his going to S.S.G. Hospital.

455. D.C.P. Piyush Patel [P.W.67] has denied the

suggestion put to him that no names at any time were

disclosed to him; and that he had come to know certain

names by 24/03/2002; and that he inserted those names in

his statement as if they were told to him on the spot.

456. The contention that this evidence of D.C.P. Patel is

false; and that this statement has been made 'to make

Zahira the first informant', is without any substance.

The motive suggested for making such false statement is

contrary to the reason and logic. The motive suggested

for making a false claim of having learnt about the names

of the accused, is that D.C.P. Patel – or the

investigating agency – 'wanted to make Zahira the first

informant'. Apparently, what is contended is that 'it

was intended to make a false claim later on, that

Zahira had lodged the F.I.R. and by anticipating that

this evidence of D.C.P. Patel would be useful when a

dispute in that regard would arise, Piyush Patel made a

false statement before PI Kanani'. How this is absolutely

 276

contrary to logic and reason shall be demonstrating by

considering various possibilities. This shows that the

investigating agency already knew that Zahira would

disown her statement. The question is, if all that the

investigating agency wanted was to frame some persons

falsely, why they would select a person who would not

support them in making such allegation. I am not

considering here whether the investigating agency was

acting honestly; but even assuming that the investigating

agency was acting dishonestly and wanted to implicate

certain persons falsely, why would they rely on a false

statement of a person who was not going to support them,

cannot be comprehended. If at all there was dishonesty

and false implication, it could be only at the instance

of or in collusion with Zahira, and not otherwise. If

Zahira was a party to such collusion, naturally, D.C.P.

Patel would not expect her to be hostile and would not be

arming the Investigating Officer with material to prove

that she had lodged the F.I.R. Hardly, in any case,

anyone, and more particularly any officer from the

investigating agency, would think of collecting material

for proving that the F.I.R. had been indeed lodged by a

person named as the first informant in the police record.

Secondly, if the desire to falsely implicate would be so

much prominent, a chit of paper could have been easily

created containing the names of some of the accused

 277

persons which are reflected in the F.I.R. [Ex.136] and

a claim would have been made that on the spot,

this information was recorded. If the investigating

agency has indeed gone to the extent of fabricating

the record, with the object of falsely implicating

the accused, why would they not be consistent in that

regard and achieve their objective, remains unanswered.

Lastly, for falsely implicating persons, why was it

necessary to make Zahira the first informant ? It has

been contended emphatically that statement of Raees

[P.W.27] had been the real F.I.R. and the manipulation to

involve the accused persons could have been done, even by

showing him as the first informant and recording all the

names in his statement. Thus, even before coming to the

conclusion about the evidence in respect of names having

been given to D.C.P. Patel on the spot to be true, it can

at once and easily be observed that the motive for such

false evidence, as suggested, is ridiculous and

unacceptable.

457. I have carefully considered the evidence of D.C.P.

Patel generally and more carefully with respect to

this aspect. I find that D.C.P. Patel is a truthful

witness and his evidence cannot be doubted. His presence

on the scene of offence cannot be doubted and has not

been disputed. While appreciating his evidence, it ought

 278

to be kept in mind that there is always some motive

behind giving false evidence. In this case, it is not

that the accused persons could not have been implicated

without this statement of D.C.P. Patel. In fact, they

have been named in the F.I.R.. It is only because Zahira

had turned hostile, the fact that she had given certain

names on the spot itself, has assumed importance.

Further, being the D.C.P., Piyush Patel was not under any

personal obligation or responsibility to collect material

supporting the charge, when PI Baria was present on the

scene of offence and was actually taking steps in

investigation. Therefore, there is no motive to avoid a

possible blame of negligence that would be

given to him, if he would not state about names of some

persons as culprits being given to him. I have no manner

of doubt that D.C.P. Patel's evidence in that regard can

be safely accepted and I hold that on the spot itself,

the names of certain persons as mentioned by D.C.P. Patel

in his evidence, were given by one of the 3 women. What

is the value to be attached to the facts which are said

to have been stated by one of the said 3 ladies is a

matter that would require separate discussion.

458. The evidence of PI Baria [P.W.72] on this aspect,

corroborates the version of PSI Rathod [P.W.63] and

D.C.P. Piyush Patel [P.W.67]. PI Baria also states about

 279

his going to the scene of offence, PSI Rathod already

being there, D.C.P. Patel coming there, his noticing 9

persons lying in a serious condition, etc. He also

speaks of 3 ladies coming with PSI Rathod and one of the

3 women stating that the assailants were from Hanuman

Tekdi locality and giving information about the incident.

PI Baria has also stated about the women giving the names

of certain persons as the assailants and has given those

names in the Court. PI Baria's evidence fully

corroborates the version of PSI Rathod and D.C.P. Patel

on this and there has been nothing in the cross-

examination, which makes me doubt this version.

459. I have no hesitation to conclude that the incident

of 3 women coming to D.C.P. Patel and other police

officers and one of them narrating about incident and

also giving the names of some persons as the culprits has

indeed taken place.

460. In my opinion, the statements about the happenings

of the incident and also the naming of some persons as

the culprits given by one of the three women to D.C.P.

Patel and PI Baria are substantive evidence. These

statements mention about the incident immediately and as

soon as it ended. The maker of the statements obviously,

had not come out of the shock of the incident. The

 280

statements made by one of the said three women about the

mob of Hindus having 'gheraoed' the building and also the

persons named by her as being in the mob of rioters,

about how the incident happened, how the victims were

assaulted, how the ladies were dragged towards the

bushes, etc., are so intricately connected with the

actual happenings of the incident, that they form a part

of the same transaction. It is immaterial for the

admissibility of these statements as substantive evidence

whether the maker of those statements has been

ascertained to be a specific or identified person.

It is the obvious corollary of the fact that the

statements are admissible in evidence without examining

the maker. This is also clear from the illustration (a)

to section 6 of the Evidence Act which refers to 'by-

standers'. The very reference as 'by-standers' indicates

that the persons whose statements are admitted under the

section are unascertained and unidentified persons. The

only requirement is that the 'by-standers' must have

knowledge of the event regarding which the statement is

made. If the by-standers are required to be examined as

witnesses, the illustration (a) would be redundant.

These statements are clearly admissible as substantive

evidence of the facts which they state under the

provisions of Section 6 of the Evidence Act. They can,

therefore, be taken into consideration as evidence of the

 281

facts stated therein.

461. To leave no manner of doubt regarding the type of

statements that can be admissible under Section 6 of the

Evidence Act and the use they can be put to on being

admitted, reference can be made to two reported decisions

of the Apex Court.

462. In Ratan Singh V/s. State of H.P., AIR 1997 Supreme

Court 768, on which reliance has been placed by the

Special Public Prosecutor, the Supreme Court of India had

occasion to discuss the scope of Section 6 of the

Evidence Act. The relevant facts of that case as found

from the reported Judgement are that in the night on a

particular date, the mother-in-law of Kanta Devi woke up

and heard cries of Kanta Devi, that the appellant was

standing there with a gun. This was followed by the

sound of a gun shot. Kanta Devi died, Prakram Chand –

brother-in-law of Kanta Devi - lodged F.I.R. One of

the questions that arose before the Supreme Court of

India was the admissibility of the statement uttered by

deceased immediately before she was fired at. The

Hon'ble Supreme Court of India, held that apart from

Section 32 (1) of the Evidence Act, the statement of

Kanta Devi to the effect that the appellant was standing

nearby with a gun, was admissible under Section 6 of the

 282

Evidence Act, on account of its proximity of time to the

act of murder. The Hon'ble Supreme Court also held that

whether admissible under section 32 (1) or under section

6 of the Evidence Act, such statement is substantive

evidence which can be acted upon with or without

corroboration.

463. In Sukhar Versus State of Uttar Pradesh, AIR 1999

S.C. 3883, the facts of the case as appearing from the

reported Judgement were that one Nakkal who had lodged

the F.I.R. implicating Sukhar – the accused – [appellant

before the Supreme Court] alleging that, that Sukhar had

caught hold of his back and fired pistol shots to him

causing injury to Nakkal, Nakkal died and could not be

examined as a witness. No attempt was made to show how

he died and there was no claim that his death was in any

way, connected with the injury sustained by him. There

was a witness who deposed that Nakkal had told him that

Sukhar had fired upon him. It was contended that the

evidence of the said witness about Nakkal's statement was

not admissible under section 6 of the Evidence Act; and

that it can not be said to have formed part of the same

transaction. The Supreme Court of India after

considering the aspect in depth and after referring,

inter-alia, to its previous decisions, including the

decision in Ratan Singh's Case [Supra] held that 'the

 283

statement of the witness indicating that Nakkal

had told him that Sukhar had fired at him was admissible

in evidence Under Section 6 of the Evidence Act'. This

statement was admitted as evidence of the fact which it

stated.

464. Thus, the statements made by one of the three women

about the incident including the names of some of the

persons as culprits given by her, are an independent

piece of substantive evidence, fully corroborating the

version of the supporting witnesses.

Video Cassette [Ex.283] and the objection to consider it

in evidence

465. Before proceeding further, I shall consider the

evidence in the form of the cassette [Ex.283]. It has

already been seen earlier that it very much shows Yasmin

present on the scene of the offence. The video cassette

[Ex.283] shows what was the scene of the offence and

what were the reactions of the victims and witnesses

immediately after the incident. The cassette gives an

accurate idea as to what was happening on the scene of

offence, after the police had arrived. It shows some of

the injured lying on the ground having serious injuries

on their respective person and groaning. It shows the

presence of policemen including Piyush Patel and Baria.

 284

It shows Zahira and Saherunnisa speaking to policemen.

It also shows Yasmin weeping by the side of one injured.

It shows the fire brigade personnel extinguishing the

fire, the dead bodies being brought down, the old woman

being brought down by a ladder. It also shows what the

women were speaking at that time. Certain sentences

uttered by them which can be heard when the cassette is

played, are significant. They are:

'Yeh sab idhar hi ke the !

[¡¸½ ¬¸•¸ ƒš¸£ ¹- ˆ½Å ˜¸½]

Iss se bandh ke rakha phir woh

jangal mein le jaa rahe the!

[ƒ¬¸ ¬¸½ •¸¸¿š¸ ˆ½Å £‰¸¸ ¹ûÅ£ ¨¸¸½ •¸¿Š¸¥¸ Ÿ¸½ ¥¸½ •¸¸ £-½ ˜¸½

Bandh bandh ke jalaye !

[•¸¸¿š¸ •¸¸¿š¸ ˆ½Å •¸¥¸¸¡¸½]

Inko pahle kya bahot maara...inhone!

[ƒ›¸ˆÅ¸½ œ¸-¥¸½ ˆ¡¸¸ •¸-¸½÷¸ Ÿ¸¸£¸ ƒ›-¸½›¸½]

Sab ko bandh ke rakha tha !

[[¬¸•¸ ˆÅ¸½ •¸¸¿š¸ ˆ½Å £‰¸¸ ˜¸¸]

Aur koi nahi baki sab jal gaye!

[AaEr ˆÅ¸½ƒÄ ›¸-ú •¸¸ˆÅú ¬¸•¸ •¸¥¸ Š¸¡¸½]

466. The utterances which were made by the persons

present on the scene of offence at that time, as have

 285

been recorded in the said cassette, some of which have

been reproduced above, are clearly admissible under

Section 6 of the Evidence Act. The provisions of Section

6 of the Evidence Act, have already been discussed

earlier in the light of the pronouncements of the Supreme

Court of India. The utterances reproduced above, lend

corroboration to the version of the prosecution

witnesses. The utterances: 'Yeh sab idhar hi ke the !

[¡¸½ ¬¸•¸ ƒš¸£ ¹- ˆ½Å ˜¸½], Iss se bandh ke rakha phir wo jangal mein

le jaa rahe the,

[ƒ¬¸ ¬¸½ •¸¸¿š¸ ˆ½Å £‰¸¸ ¹ûÅ£ ¨¸¸½ •¸¿Š¸¥¸ Ÿ¸½ ¥¸½ •¸¸ £-½ ˜¸½

] , Bandh bandh ke jalaye ,[•¸¸¿š¸ •¸¸¿š¸ ˆ½Å •¸¥¸¸¡¸½], Inko pahle kya

bahot maara...inhone,[ƒ›¸ˆÅ¸½ œ¸-¥¸½ ˆ¡¸¸ •¸-¸½÷¸ Ÿ¸¸£¸ ƒ›-¸½›¸½], Sab ko bandh

ke rakha tha, [¬¸•¸ ˆÅ¸½ •¸¸¿š¸ ˆ½Å £‰¸¸ ˜¸¸], Aur koi nahi baki sab jal

gaye, [--£ ˆÅ¸½ƒÄ ›¸-ú •¸¸ˆÅú ¬¸•¸ •¸¥¸ Š¸¡¸½], etc., speak for themselves.

Thus, not only the cassette establishes the presence of

Yasmin, it also corroborates various aspects of the

prosecution case, as spoken about by the witnesses. The

utterances reproduced above are substantive evidence of

the facts which can be gathered from them. These

utterances and sentences, by themselves and

independently, may not prove anything, but when

considered in the context of the evidence of the

occurrence witnesses, at once create an assurance and

lend support to their testimony.

 286

467. I shall now deal with the contentions challenging

the consideration of the cassette [Ex.283] in evidence.

Shri Shirodkar, the learned Senior Advocate, has

pointed out the evidence as to where and in what manner

the video cassette [Ex.283] had been kept before it came

to be tendered in evidence. PI Kanani's [P.W.74]

evidence to the effect that the video cassette [Ex.283]

was not seized under any panchanama, that it was lying in

unsealed condition, etc., was pointed out and

the submissions that are advanced in that regard are to

the effect that the claim of the prosecution as to when

it learnt about existence of the cassette, is false.

The contention is that on the basis of the false claim,

the prosecution succeeded in examining the videographer

without providing the video cassette [Ex.283] to the

defence. It is also contended that PI Kanani's evidence

that he forgot about the cassette till the last, cannot

be believed; and that the prosecution was well aware

about the existence of the video cassette [Ex.283]; but

as it did not support the prosecution case on several

aspects, it was not produced at all. In the view that I

am taking, it is not necessary to go deeper into these

contentions and I look at the matter by assuming that

the prosecution was aware of the existence of the video

cassette [Ex.283] before it was produced in the Court,

 287

or before a mention of it was made by Yasmin [P.W.29].

Still, when exactly the learned Spl.P.P. in-charge of the

matter learnt about it, is not clear. The substance of

the contentions advanced by Shri Shirodkar is that in

spite of being aware of it, the cassette was not included

in the charge-sheet; and that its production before the

Court, at a later stage, has prejudiced the accused.

468. I have carefully considered this aspect. On a

careful thinking, it is clear that the video cassette

[Ex.283] does not contain any facts regarding which

prosecution had not made a claim earlier and had not

adduced, or was not intending to adduce, evidence. For

instance, the video cassette [Ex.283] shows the Best

Bakery building burning, the injured lying, the fire

brigade attempting to extinguish the fire, the dead

bodies being brought down by the fire brigade staff, an

old woman trapped on the terrace of the building, etc.,

etc. However, the prosecution had witnesses to speak

about each and every of the above facts. The

importance of cassette, therefore, might not have been

felt by the prosecution earlier. It depicts only the

happenings after the incident and does not connect the

accused persons with the alleged offences. It is when

the defence took some specific contentions, that the

relevancy of the video cassette [Ex.283] might have

 288

occurred to the prosecution and it is thereafter that it

might have been seen carefully by somebody connected with

the prosecution and/or the learned Spl.P.P. For

instance, a point not within the knowledge of the accused

persons – viz. that Yasmin was not present at all on the

scene of offence, which also could not be gathered from

the chargesheet or other record – was not only taken up,

but was being blown out of proportion and therefore the

fact that Yasmin is seen in the video cassette [Ex.283],

became important. Similarly, that Zahira's [P.W.41] Nani

was not present at all during the incident, was a

contention taken up by the learned Advocates for the

accused, which was not borne out by anything on record

and regarding which the accused claimed to have had no

knowledge. It is not as if the video cassette [Ex.283]

shows something new which is not a part of the

prosecution case regarding which the accused had been

forewarned. It is not that the accused were required to

meet a new case on account of the cassette [Ex.283] being

tendered in evidence. The purpose of supplying of copies

of the documents on which prosecution relies, is to give

an opportunity to the accused to know what case they are

required to meet. It is not that Yasmin's presence, that

injured had suffered serious injuries, that the police

and fire-brigade came and rescued the victims, are

factors not spelt out from the chargesheet.

 289

469. The principles of Criminal Jurisprudence

require that the accused should not be taken by surprise;

and that they should be aware well in advance of the case

which they are required to meet. No new fact, not

initially forming part of the prosecution case, has been

introduced by the cassette [Ex.283]. Since the accused

had information from the police report that Yasmin was

present during the incident, there was no question of

they being 'taken by surprise' only because Yasmin's

presence is established by a visual record in the

cassette. Moreover, the copies of the cassette [Ex.283]

in the form of compact discs were given to the

learned Advocates for the accused before it was taken on

record, marked and exhibited. The statement of the

videographer Gautam Chauhan [P.W.69] was also recorded by

the Investigating Officer and a copy thereof was

furnished to the learned Advocates for the accused before

he was examined as a witness. Thus, the accused had been

given full opportunity to know the contents of the video

cassette [Ex.283] and the version of the person who did

the recording in question, before the relevant evidence

was introduced, and had been given an opportunity to

cross-examine the material witnesses in that regard. No

prejudice has been caused to the accused by introduction

of the said video cassette [Ex.283].

 290

470. It is contended that the delay in producing the

video cassette [Ex.283] was due to the fact that the

prosecution wanted to 'doctor' the video cassette

[Ex.283] suitably. There is no basis for this

contention. It could have been meaningfully advanced,

only if Gautam Chauhan [P.W.69] had been cross-examined

on the relevant aspects, for establishing that all that

was shot, is not seen in the video cassette [Ex.283], or

is not in the same order, etc., or that it has something

more than what he shot. Gautam Chauhan [P.W.69] who has,

in his evidence, clearly stated that he had done the

shooting contained in the video cassette [Ex.283], has

been asked a number of questions, but asking him whether

all that he shot was not seen or available in the video

cassette [Ex.283] when it was played over to him in the

Court, is avoided. Not even a suggestion that the video

cassette [Ex.283] does not contain the entire shooting

that was done by him with respect to the Best Bakery

incident and with respect to the scene of offence, has

been given to Gautam Chauhan [P.W.69]. In any case, in

the view that I am taking, it is not necessary to discuss

this aspect further. It is nobody's case that an

amalgamation of different shootings done at different

time and place exists in the video cassette [Ex.283], or

that any figures or objects are superimposed on the film

 291

which was shot. Thus, what remains is only the

possibility of certain part from it having been

removed. But this possibility, even if real and genuine,

would hardly be a ground to refuse to look into it and

ascertain what it contains. What it contains would be

relevant and material, irrespective of the fact that it

is not a full cassette or a full record of the shooting

done by Gautam Chauhan [P.W.69] on that day, at that

place. To illustrate this point, an example can be

given as follows. Suppose a photographer takes, say

about 4 or 5 photographs of the scene of offence one

after the other but after keeping some time gap. Suppose

some - say 2 to 3 - out of the said photographs are

either got destroyed or deliberately not produced, can

the remaining photographs be refused to be looked into,

or from being considered as evidence of what they would

show ? Suppose a photograph shows 'A' hitting 'B' with a

stick, can the photograph be refused to be admitted in

evidence, though relevant, on the ground that a

photograph taken prior to that showed 'B' in a posture

suggesting of his intention to assault 'A', is not

produced ? The answer has to be a 'No'. To illustrate

the point further, another example can be given. Suppose

a witness – X - on reaching a particular place, notices

'A' assaulting 'B', can his evidence be contended to be

inadmissible on the ground that 'before he came on the

 292

scene, 'B' had given filthy abuses to 'A' and had

provoked him; and that 'X' will not be able to disclose

what had happened before he came on the scene? Even if

it is held that the cassette is not a full record of the

shooting done on the occasion or that certain parts of it

have been removed, still, it is good evidence of what it

shows. If at all anything has been removed from the

original cassette or from out of the shooting done at

that place at that time, then what it was, is to be

decided on the basis of evidence and probabilities. That

the possibility of something having been deleted exists,

will not be lost sight of by the Court while appreciating

the cassette as a piece of evidence, but because of such

possibility, if the Court is called upon or expected to

just ignore what is seen, then that would be, clearly,

impermissible.

471. It is contended that the time line indicates that

the minutes change even before a count of 60 seconds; and

that this can be one more example of doctoring of the

video cassette [Ex.283]. I am not able to give any

importance to this. First of all, no such specific

instances have been brought on record by putting the same

to Gautam Chauhan [P.W.69], or any other witness.

Secondly, it is in the evidence itself that even if the

shooting would be stopped, the time line would continue

 293

to run and therefore, the change of minutes can occur

before a shooting of 60 seconds. Thus, that change of

minutes occurs before a shooting of 60 seconds, does not,

by itself, indicate 'doctoring'. In the absence of any

questioning in this regard to Gautam Chauhan, PI Baria

and PI Kanani, this contention is untenable.

472. In their attempt to discredit the evidence of the

cassette, a question is posed by the learned Advocates

for the accused as to 'why the footage of Best Bakery

episode is only of 12 to 13 minutes when there were no

restrictions on what to videograph and how long the

footage should be'. An answer to this question is

provided by them as that 'the rest of the footage which

falsified the case of the prosecution, had to be

eliminated by 'doctoring' the cassette. There is no

substance in this contention. 'Why is the footage of the

Best Bakery episode only of 12 to 13 minutes' has been

asked neither to Gautam Chauhan [P.W.69], nor to PI Baria

[P.W.72]. The argument which presupposes that actually

there was more footage, fails as not only this fact

itself is not established, but questioning any witness on

that, has also been scrupulously avoided by the learned

Advocates for the accused.

473. It is next contended that the inability of PI Baria

 294

[P.W.72] or PI Kanani [P.W.74] to prove how, with whom

and where the video cassette [Ex.283] was kept, is not in

fact an 'inability', but a deliberate suppression 'to

prevent the defence from establishing the doctoring and

to establish that the claim of the prosecution that

Zahira [P.W.41] and others disclosed names to the police,

is not concoction of evidence'. [Page 51 of the written

submissions of defence filed by Shri Shirodkar]. This is

without any substance. There is no case put to anyone -

much less there exists any evidence - that shooting in

respect of the names disclosed by Zahira [P.W.41] and/or

others or in respect of Zahira saying that she did not

know any of the rioters was done; and that the original

[undoctored] cassette contained such a recording.

474. It is next contended that the defence had suggested

that Yasmin was not present when the incident took place;

and that examining the videographer Gautam Chauhan

[P.W.69] belatedly and by permitting it to be done,

grave prejudice and irreparable damage has been caused to

the defence. There is no substance in this contention.

That Yasmin was not present, is a contention invented by

the learned Advocates for the accused themselves and

obviously, not from what was within the knowledge of the

accused. This is clear from the fact that none of the

accused, in their examination under Section 313 of the

 295

Code, has even claimed to have known Yasmin, or nobody

else of the victims, and for that matter, even the Best

Bakery itself. Merely because an unfounded contention is

demonstrated to be false in a more effective and obvious

manner, no grievance of prejudice having been caused, can

be made.

475. Though Shri Shirodkar, the learned Senior

Advocate, had filed a written arguments on behalf of the

entire defence, Shri Bichu, Advocate, on behalf of

accused nos.13, 14, 15 and 20, and Shri Pawar, Advocate,

on behalf of accused nos.16 to 19 and 21, have also

chosen to file separate written arguments. This has been

done, apparently to cover the points which though

initially not thought of, but the significance of which

was realized as the arguments progressed. It appears

that the significance of certain points or the necessity

to address to them was thought of by the learned

Advocates for the accused in view of the queries of the

Court and the discussion that took place pursuant to the

queries, during the lengthy arguments advanced by Shri

Shirodkar. Shri Pawar has, in his written arguments,

referred to the video cassette [Ex.283] as 'a key to

many truth'. Much reliance has been placed on the

video cassette [Ex.283] to contend that it proves the

prosecution case to be false. It cannot be helped

 296

observing that the various arguments advanced by the

learned Advocates for the accused contradict one another.

476. It is contended by Shri Mangesh Pawar, the learned

Advocate for accused nos.16 to 19 and 21, in support of

the contention that the video cassette [Ex.283] had been

seen by somebody who had tutored Yasmin about she being

seen in the video cassette [Ex.283], and that 'how else

would Yasmin know that she was filmed?' This argument,

which is absolutely without any merit, is rather

surprising. It presupposes that a person who is being

filmed, will not know about it unless he or she would be

told about it by someone who has seen the film. No

opinion is being expressed on whether Yasmin was told by

someone who had seen the video cassette [Ex.283] about

her presence being seen in the video cassette [Ex.283],

but that she knew that she was filmed, is not indicative

of that.

477. Based on the evidence that PI Kanani [P.W.74] claims

to have not seen the video cassette [Ex.283], that it not

being kept in a sealed condition, etc., an interesting

contention is put forth. An elaborate explanation as to

how this might have happened and what is the possible

truth behind it, is advanced. It is found in the written

arguments [Ex.523/A] filed by Shri Pawar [Clauses E & F

 297

on pages 63 and 64 of the written arguments] and is best

understood by reading the same. These contentions are

mere flights of imagination and without any basis. No

attempt has been made in the cross-examination of

various witnesses to obtain any evidence supporting at

least parts of this theory. It is not suggested to PSI

Rathod [P.W.63] that the witnesses told him that they did

not know the offenders, that they were outsiders or that

the witnesses could not see them, etc. In fact, the

suggestion given to PSI Rathod [P.W.63] is with respect

to the ladies telling that a mob of Hindu persons had

done it, without trying to bring on record that the mob

was of persons unknown to those ladies. 'Mob of Hindu

persons' does not mean 'mob of unknown persons'.

Further, no suggestion has been given to PI Baria

[P.W.72] or to PI Kanani [P.W.74] or to anybody else that

the duplicate video cassette was got prepared deleting

the portion favourable to the accused.

478. There is no substance at all in all these

contentions which are based on certain assumptions,

then further assumptions on the assumed facts, and then

further assumptions on those facts also; but apart

therefrom, what is most significant is that no attempt,

by cross- examining the relevant witnesses to support

this version in any manner, has been made.

 298

479. It was open for the accused to make an attempt to

show that something was, in all probability, deleted; and

that, what was deleted was in relation to the happening

of a particular event favourable to the accused. Without

questioning the videographer Gautam Chauhan [P.W.69], PI

Baria [P.W.72], Zahira [P.W.41] and Saherunnisa [P.W.40],

Yasmin [P.W.29] and/or others who figured in the

cassette, about the record not being genuine, and not of

the entire shooting done on that occasion, no inference

as desired by the learned Advocates for the accused can

be drawn.

480. As regards the contentions that the prosecution was

aware of the cassette prior to its being produced in the

Court on the ground that a C.D. from the cassette had

been prepared already on 19/09/2004; and that Zahira had

been questioned with respect to the happenings recorded

in the cassette even before it was produced, I do not

find it very significant. Here, when one speaks of

'prosecution' it is not clear that it refers to a

particular person or group of persons. It is possible

that the learned Spl.P.P. had an idea about the existence

of the cassette or the contents thereof also, but unless

and until the cassette would be received by her through

some official and authentic sources together with the

 299

relevant information as to the person doing the shooting,

etc. it would not be possible for her to make a claim of

the existence of the cassette, before the Court or seek

its production in evidence.

481. It is pointed out that the C.D. shows 19/09/2004 as

the date on which it came in existence. That it was

prepared on 19/09/2004 was not pointed out before the

concluding arguments and no explanation was sought from

the learned Spl.P.P. This contention/argument was kept

reserved, apparently in the belief that it could provide

a fatal blow to the prosecution's claim about the

cassette and/or C.D. It is contended by Shri Pawar, the

learned Advocate for accused nos.16 to 19 and 21, that

Section 4 of the Information Technology Act, 2000, proves

that the C.D. [Ex.283/3] was prepared on 19/09/2004 in

the absence of any evidence to prove the contrary. I

find that Section 4 of the Information Technology Act,

2000, has no relevance to this aspect. It deals with

meeting of a legal requirement to be in writing,

typewritten or in print with respect to any

information or any other matter, and provides that such

requirement shall be deemed to have been satisfied if

such information or matter is rendered or made available

in an electronic form and is accessible so as to be

useful for a subsequent reference. Thus, the Section is

 300

intended to bring information or matter rendered or

available in an electronic form on par with a matter

required to be in writing or printed form, etc. The

contention that the date seen in a C.D. as the date on

which it was created, should be concluded as correct,

without any evidence, cannot in any case, be advanced on

the basis of the said section.

482. According to [Link] Rao, the learned Spl.P.P.,

she had got prepared the C.D. [Ex.283/3] on a computer

which was not in use for a long time; and when and by

whom, the date and time setting was done, is not known to

her. I do not find it proper to come to a conclusion in

this regard - viz. when the C.D. was prepared, or got

prepared, without any evidence as to the computer on

which the said C.D. was got prepared, and without there

being any evidence as to whether and in what

circumstances, it is possible to have a date of creation

of the C.D., which is wrong. I do not think that the

date and time setting cannot manually be changed at any

time. However, even if it is held that the C.D. is

actually prepared from the cassette on 19/09/2004, still,

that would not affect the genuineness or the evidentiary

value of the cassette. It would only show that the

statement of the learned Spl.P.P., as to when it was

prepared, is wrong. Though this would be relevant in

 301

considering the possibility of the C.D. being available

to some persons earlier, it would not go, in any way,

towards affecting the genuineness, authenticity and

evidentiary value of the cassette itself. The

possibility of the C.D. being available to a witness,

prior to his giving evidence may affect the weight to be

attached to the evidence of such witness, on certain

aspects, and his evidence may not be weighed more by

reason of it 'being corroborated by the cassette

[Ex.283]'; but to claim or hold that this affects the

genuineness or value of the cassette would be incorrect.

483. It is contended by the learned Advocates for the

accused that the cassette has been useful to the

prosecution for a very limited purpose; and that it is

proved to be to the benefit of the defence and the truth.

In fact, it is repeatedly asserted in the written

arguments filed by Shri Mangesh Pawar, the Advocate for

the accused, where the cassette is not only described

'a key to many truths' [Page 61 of the written

arguments], but how it advances the version of the

defence is also elaborately mentioned [Pages-68-90].

Without going into the soundness of those contentions, it

may be observed that if this is indeed the belief of the

accused, then it is not possible for them to complain

prejudice on account of its production.

 302

484. A contention that the cassette contained shooting

done simultaneously on the rear side of the Best Bakery

Building as well as the front side of the Best Bakery

building by two different camera is combined into it by

editing, has been taken up. [Para Nos. e & f on Pages 68

& 69 of written arguments Ex.523/A]. This is also without

any substance. First and foremost, the possible

explanations of any facts are always so many and

therefore to make any reasonable claim of this nature,

it was a must to specifically question and confront

videographer Gautam Chauhan on this. This is the least,

but, in fact even PI Baria who claimed the

responsibility of the shooting, also ought to have been

questioned on this aspect. Without doing so, such

fanciful claims can not be advanced and at any rate, can

not be seriously accepted. Moreover, there is also a

simple explanation of what is claimed to be an indicator

of tampering and editing. It is in evidence that even if

the shooting is stopped, the time would keep on running

and when the shooting restarts, it may show the time when

it commences. Thus, if after doing shooting, for

sometime – say for 20 seconds – the shooting is stopped

and then, after some time – say 30 seconds – within which

time, the videographer has moved to a different location,

the shooting restarts, it would be not from 21 seconds

 303

onwards, but from 51 onwards. The change of minute

which has been referred in this specimen by Shri Pawar,

occurs not after 60 seconds and therefore there is

nothing to indicate that the shooting had not been

stopped during that period. In other words, where after

showing the rear side premises and doing the shooting,

the shooting is stopped and videographer then comes to

the front side and starts shooting there, such an

eventuality can take place and this was pointed out to

Shri Pawar when the C.D. [Ex.283/3] prepared from the

cassette [Ex.283] was played in the Court at the instance

of Shri Pawar. This highlights the necessity of

requiring the party interested in making a particular

point, to question the witness appropriately on those

aspects, without which no inference on a mere suggestion

of party can be drawn by a Court of Law. As already

observed, this only indicates how the possibilities are

rather too many. Perhaps, realizing that Gautam Chauhan

could have given a satisfactory explanation destroying

this claim of the defence, how this has happened, has not

been asked to him, in the cross-examination.

485. Again, a similar contention is advanced which is

worth rejecting outright and has to be taken a note, only

because it is put fourth in the written arguments [Clause

(g) Page 69]. It is contended that though the

 304

prosecution case was that hands and legs of 9 persons

were tied down by the culprits, the material used for

tying the limbs of 9 persons is not seen in the

cassette, which creates serious doubt about the story of

tying the limbs. This is ridiculous. Everything that was

available on the scene of offence was recorded is

nobody's case. That the entire ground surrounding the

Best Bakery was seen in the frame or that shooting

showing the entire ground was done, is also nobody's

case.

486. The cassette is not merely a document, but it is

more akin to 'real evidence'. The Court can take

cognizance of what is seen and heard when it is played,

by its own senses.

487. Thus, the cassette [Ex.283] is properly admitted in

evidence. It supports the evidence of the occurrence

witnesses. The objections raised against its admission

in evidence are without any merit. The contention that

part favourable to the accused has been removed from the

cassette, has also no substance. In the absence of any

attempt to question Gautam Chauhan and other material

witnesses in the cross-examination and elicit material to

suggest such an inference, no conclusion about any part

having been removed from the cassette, can be drawn.

 305

Moreover, the removed part, if any, could be either

favourable to the accused, or to the prosecution, or

partly favourable and/or unfavourable to both the

parties, or altogether irrelevant. In the absence of any

material to indicate by whom, when and under what

circumstances a part of the cassette was removed or got

deleted, no conclusion about whether it could be

favourable to the accused or to the prosecution can be

drawn. The avoidance of questioning Gautam Chauhan on

what else was shot, or that something that was shot was

missing, can also lead to an inference that the cross-

examiner thought it too risky. It may be observed in

this context that PI Baria categorically stated that

shooting in respect of the three women coming to him and

giving names of some of the offenders to Piyush Patel was

available in the cassette. After viewing the cassette,

he admitted that it did not contain such shooting.

The matter has been left at that by the parties and

therefore, may not be discussed any further; but the

point which I intend to make is different. The point is

simply that no inference can be drawn that anything that

was favourable to the accused had been shot and was

removed. That the learned Spl.P.P. disclosed the

availability of the cassette much later; and that this

was done deliberately, even if true, cannot affect value

to be attached to the cassette as a piece of evidence.

 306

No prejudice has been caused to the accused by

introducing the cassette [Ex.283] in evidence late.

Medical Evidence

488. I shall now refer to the medical evidence, as has

been adduced in this case, which fully corroborates

the version of the occurrence witnesses who have

supported the prosecution case. The medical evidence

however disproves the version of Nafitulla [P.W.31] and

Nasibulla [P.W.30], who are hostile, as regards the

manner in which they sustained the injuries in

question. The injuries sustained by Taufel, Raees,

Shehzad and Sailun have already been mentioned earlier.

The injuries sustained by Nafitulla and Nasibulla will be

mentioned later. Since the medical evidence is not in

dispute, it is not necessary to examine the same in

depth. The evidence of [Link]. Sutapa Basu [P.W.47]

clearly establishes that the cause of death of Ramesh is

'shock and haemorrhage following multiple chop wounds'.

The evidence of [Link] [Link] [P.W.48] clearly

establishes that the cause of death of Prakash is -

'craniocerebral trauma following multiple injuries over

head'. The evidence of [Link] [Link] [P.W.49]

clearly establishes that the cause of death of Baliram is

-'craneocerebral trauma after assaulted head injury'.

 307

This is supported by the entries made in notes of post-

mortem examinations in respect of the dead bodies, which

are duly proved [Ex.194, Ex.201 and Ex.208 respectively].

There is no dispute on this.

489. Firoz and Nasru had sustained the following injuries

as revealed by the evidence of [Link] G. Rathod

and from the notes of post-mortem examination [Ex.202 and

Ex.204 respectively] carried out on their dead bodies.

Injuries on the body of Firoz :-

i) A stab wound of size 1.5cm X 1cm X

muscle deep on right cheek, 2cms

below right eye. It was horizontal,

ii) A stab wound of size 2.5cms X 1cm X

muscle deep, horizontally

placed on the right sub mandibular

region, 3cms below angle of mouth,

iii) A stab wound of size 3cms X 1cm on

right and left upper lip through and

through,

iv) A stab wound of size 3cms X 1cm X

cavity deep on left axilla posterior

fold,

v) A perforated wound of size 0.5cm X

0.5cm X cavity deep in the midline

epigastric region, horizontally

 308

placed,

vi) A perforated wound, size 0.5cm X

0.5cm X muscle deep on the front of

the chest, midline, at the level of

4th intercostal space.

All these injuries were ante-mortem.

Injuries on the body of Nasru :-

i) A stab wound of size 2.5cms X 1cm X

cavity deep on left axilla,

posterior fold, horizontally placed,

ii) A stab wound of size 2.5cms X 1cm X

cavity deep, obliquely placed in the

9th intercostal space at the anterior

axillary line with a tailing of

4cms, lowered down,

iii) Incised Wound of size 3cms X 1cm X

muscle deep on left forearm, postero

laterally 6cms below elbow,

iv) Incised wound of size 6cms X 1cm X

muscle deep on the left shoulder

top,

v) Incised wound of size 2cms X 1cm on

right index finger, which is cut,

vi) Contusion of size 6cms X 2cms on the

left side of the front of the chest,

 309

brown in colour,

vii) Incised wound of size 6cms X 1cm X

bone deep on the left nape of the

neck behind left ear,

viii) Incised wound of size 3cms X 1cm X

muscle deep, obliquely placed on the

left parieto occipital region, 3cms

away from midline,

ix) Incised wound of size 3cms X 1cm X

muscle deep on the left frontal

region, 2cms lateral to midline.

All these injuries were ante-mortem.

Though there is not much to be discussed about the

medical evidence, in as much as, it is unchallenged, some

inconsistencies therein may be noticed. It has been

already observed that the injuries on Raees Khan were

described as C.L.W.s by Dr. Meena Robin [P.W.46], while

they were described as incised wounds by Dr. Dilip

Choksi[P.W.62]. Further, the injuries noted by Dr. Meena

Robin on the person of Baliram are totally different from

the injuries noted by Dr. K.P. Desai [P.W.49] in the

notes of post-mortem examination [Ex.208] on his dead

body. The injuries on the body of Nafitulla [P.W.31] also

have been differently mentioned by Dr. Meena Robin and

[Link] Choksi. All this may not be very material.

Since the doctors have not been questioned specifically

 310

about such variations, it is not possible to form any

opinion as to the exact cause of such difference, but an

inference, which seems reasonable, is that due to mass

casualty, the records were perhaps not properly made.

490. The evidence of Dr. Meena Robin and Dr. Dilip Choksi

needs discussion in a particular context. It may be

observed that the evidence of these two doctors as

regards their assessment of the seriousness of

the injuries suffered by the victims, and more

particularly Raees and Nafitulla, seems to be

unsatisfactory.

491. According to [Link] Robin [P.W.46], the injuries

sustained by Raees were 'simple if no complications'.

According to her, injuries sustained by Nafitulla were

also 'simple' According to [Link] Choksi [P.W.62] also,

the injuries suffered by Raees were 'simple'. As regards

the injuries suffered by Shehzad [P.W.28], initially,

[Link] said that the injuries suffered by him were

'simple', but later on, corrected himself and said that

they were 'grievous'. As regards the injuries

suffered by Nafitulla [P.W.31], interestingly, [Link]

says that they were 'grievous' at the time when he was

admitted, but turned out to be 'simple' after the

conclusion of the treatment. I have got a definite

 311

feeling that both these doctors have tried to project the

injuries as less serious than they actually were. I have

been quite slow in coming to this conclusion but after

carefully considering their evidence, I do conclude that

way.

492. It may be observed that in law the terms 'simple'

and 'grievous' are used not in relation to injuries, but

in relation to 'hurt'. 'Grievous hurt' is defined by

Section 320 of the I.P.C. which provides 8 kinds of hurt

that are designated as 'grievous'. Clause 'Eighthly' of

Section 320 of the I.P.C. however consists of a class of

hurts which can not be distinguished by a broad and

obvious line, from slight hurts, as in the case of hurts

contemplated by 7 previous Clauses. Emasculation,

fracture or dislocation of a bone, etc., would be obvious

and visible, but every injury which endangers life may

not have any visible or obvious line separating it from

the category of 'simple hurt'. Such injuries, though not

falling within any of the first 7 Clauses of Section 320

of the I.P.C., may, nevertheless, be very serious and may

cause intense pain and a lasting injury to the body

constitution. It appears to me that since the injuries

sustained by Raees and Nafitulla did not have any obvious

quality making it at once clear to be in the category of

'grievous hurt', the doctors have attempted to describe

 312

it as 'simple'. For instance, if a fracture would be

noticed, the doctors would not able to claim it to be

'simple hurt', though it may be a small fracture not even

remotely posing any threat to life.

493. In my opinion, the doctors are clearly wrong in

terming the injuries suffered by Raees and Nafitulla as

'simple'. It is an admitted position that the injuries

sustained by Raees and Nafitulla also like in case of

others were on vital parts of the body. Raees was

required to be hospitalized till 16/03/2002. The

injuries on such vital part of the body could not be

termed as 'simple' in my opinion. The very fact that a

qualification as 'if no complications' is noted before

terming them as 'simple' itself indicates that they are

not 'simple' to the knowledge of the Doctor, who at that

time itself saw a possibility of complications.

According to [Link], Nafitulla had sustained following

injuries:

i) I.W. from left side occipital to the

mandibular region, size 15cm X 2cm X

1cm,

ii) I.W. on occipital region, size 4cm X

2cm X 0.5cm,

iii) I.W. on right leg, size 3cm X 1cm X

0.5cm.
 313

The injuries were on the occipital region. X-rays of

skull and mandible were required to be taken. It appears

that the doctors have chosen to describe the injuries as

'simple' where there was no fracture. This is also clear

from the evidence of [Link], who initially described

the injuries sustained by Shehzad as 'simple', but later

on, after noticing that he had a fracture, stated that

the injury was 'grievous'. It is after noting that there

was a multiple linear fracture, he changed his opinion

about the seriousness or category of injuries. The

approach of the doctors is incorrect. Whether they are

ignorant or attempted to take advantage of the absence of

a broad defining line bringing the injuries suffered by

Raees and Nafitulla in other more obvious categories

provided by Section 320 of the I.P.C., is difficult to

understand. The concept that the injuries being 'serious

when admitted' and 'turning out to be simple later', as

introduced by [Link], is unheard of. The voluntary

statement made by him when his evidence was being

recorded to the effect 'there was no fracture' shows his

concept, which is obviously erroneous. Because of such

wrong conception, he admits that since in the ultimate

result, the patient survived, he terms the injuries in

question as 'simple'. Regarding Raees, he says that at

the end of the treatment, there were no complications and

as such, the injuries were 'simple'. Interestingly, he

 314

admits that if the injuries would lead to death, he would

call the very same injuries as 'grievous'.

494. It is apparent that the injuries suffered by all

these six persons were very dangerous, on vital parts of

the body and are necessarily required to be termed as

'grievous hurts'. That they were dangerous, have been

admitted by both these doctors. The only justification

for calling them 'simple' is given as absence of fracture

and that 'no complications arose at the end of the

treatment'. It is not possible to accept the theory of

'grievous hurt subsequently turning into simple hurt'.

Why this is elaborately mentioned is a doubt is felt

whether this is bonafide ignorance, or an attempt to

reduce the gravity of the injuries. This is particularly

so because [Link] was rather reluctant to admit that

head is a vital part of the body. He qualified it by

saying that it is so because brain is located in head.

Nobody had asked him why head was a vital part of the

body, but still, just in order to stick to his claim of

injuries sustained by Raees being simple, he attempted to

give a round-about answer.

495. In any case, the concepts 'simple hurt' and

'grievous hurt' are essentially legal. They are not

medical concepts. From the evidence of these doctors

 315

themselves, it can be safely concluded that the injuries

suffered by Raees and Nafitulla were also such, which

had, in fact, endangered their lives and ought to be

termed as 'grievous hurt'. Since it is a legal concept,

the Court is competent to give its own finding as to

whether the hurt in question is 'simple' or 'grievous'

and is not bound by the qualification made by a doctor.

It is sufficient to take into consideration the facts in

respect of nature of injury, as described by the doctor

for enabling the Court to come to its own conclusion in

that regard. The observations made by the Supreme Court

of India in its decision in State of West Bengal V/s.

Meer Mohammad Umar, A.I.R. 2000 SC 2998, [para 23]

indicate that it is open to the Session Judge himself

to deduce a particular injury to be 'grievous hurt' after

knowing the facts thereof described by a doctor. In this

case, as a matter of fact, the evidence of doctor does

indicate that the injuries sustained by even Raees and

Nafitulla were serious; and that they have simply omitted

to qualify them as 'grievous hurt' either because of some

misconception, or for any other reason.

496. The evidence of these doctors, anyway, shows that

the injuries sustained by the said six witnesses could be

caused by sharp cutting weapons.

 316

Evidence of witnesses from locality

A] [Link] Bhatt [P.W.43]

497. Before examining the evidence of Zahira and others

from Habibulla family, the evidence of [Link]

Bhatt [P.W.43], Kanchanbhai Mali [P.W.44] and Veersinh

Zala [P.W.45], who are the residents of the Hanuman Tekdi

locality, may be examined. All these witnesses were

declared hostile. They were examined in the original

trial also and in that trial also, they had been declared

hostile. However, the evidence of Jyotsnaben Bhatt and

Kanchan Mali establishes the happening of the incident

almost in the same manner, as is claimed by the

supporting eye witnesses.

498. Jyotsnaben states that on 01/03/2002, riots had

taken place at Hanuman Tekdi; and that those were

communal riots; and that at about 8.30. p.m. to 9.00 p.m.

the mob was near the Hanuman Temple. Jyotsnaben also

speaks of the noise of the mob and shouts like 'maro'

'maro'. The size of the mob is given by her as of about

1000 to 1200 persons. From the attitude of

Jyotsnaben, as reflected from her evidence, it is clear

that she did not want to disclose anything in the matter

and had decided to say that when the riots started she

went inside and had not seen anything. However, pursuant

to the permission to put questions in the nature of

 317

cross-examination, as granted, the learned Spl.P.P. has

been successful in securing evidence from Jyotsnaben,

supporting several aspects of the prosecution case.

Thus, after confronting Jyostnaben with her previous

deposition [X-75 for identification] recorded during the

original trial, Jyotsnaben has admitted that she heard

the noise and shouts; and that they were to the effect

'mari nako' 'salgavi do'. Jyotsnaben also admitted that

the mob was of Hindu persons; and that the persons in the

mob were holding weapons - i.e. swords, 'guptis' and

sticks. She also stated that the persons in the mob

were having cans of petrol and kerosene with them.

Jyotsnaben also states that the mob was there throughout

the night; and that the persons in the mob were moving

around the bakery building. Jyotsnaben has also stated

that she did state about it during the original trial.

Jyotsnaben admits having stated during the previous trial

that when the persons in the Best Bakery building had

climbed down, the persons in the mob had attacked them

and also admits that this fact is true. Jyotsnaben also

states that when the police arrived in the morning the

Best Bakery building was burning; and that the persons

from the fire brigade were attempting to extinguish the

fire by spraying water. Jyotsnaben also states about

burnt dead bodies of small children, men and women, as

also the injured persons being put in the ambulance and

 318

taken to the hospital.

499. It is apparent from the evidence of this witness

that she was certainly not inclined to depose in favour

of the prosecution, but still, had to admit basic facts

of the prosecution case, barring - of course - the

connection of the accused with the alleged offences. It

is also clear that she did not want to say before this

Court even as much as she said during the previous trial

and it is only after being confronted with the record of

her deposition in that trial, she admitted certain

things. Even then, she tried to qualify her statements by

saying that she had not seen those happening herself, but

had heard that they had taken place. Since the house of

this witness is situated extremely close to and right in

front of the Best Bakery building, it is clear that she

must have heard, seen and known much more than what she

states.

500. The deposition of this witness during previous trial

having been marked and exhibited by consent as Ex.158,

the same can be read. It makes an interesting reading.

Jyotsnaben had claimed in the previous trial about it

being dark, though she had described the incident. The

darkness did not prevent her from seeing the incident,

but it prevented her from describing the persons in the

 319

mob. Before that Court and before this Court also, she

does not dispute the morning incident. Moreover, even

though she claimed in her deposition [Ex.158] in the

previous trial that there was dark, she is positive that

the mob was of persons who had come from 'outside'. In

the cross-examination before that Court, it was got

elicited from her that the mob was of strangers; and that

the persons who were produced as accused in the Court

were the persons of her 'mohalla'. She has repeated in

her previous deposition at another place also about the

accused being from her 'mohalla' and having saved the

Muslim families in their area. Here, before this Court,

Jyotsnaben has not said anything about the accused having

saved lives of any Muslim families in the area.

Jyotsnaben can not be considered as truthful witness and

her bias against the prosecution is apparent. However,

even she does not dispute the happening of the incident –

also of the happening of the morning incident. What also

requires to be noted is that she was reluctant during

this trial to say even as much as, she had said earlier.

B] KANCHAN MALI [P.W.44]

501. Kanchan Mali [P.W.44] states that the Best Bakery

building is situated at a distance of about 40 feet from

his house. He also speaks of the riots; and that on

 320

01/03/2002 at about 8.30 p.m. to 9.00 p.m. a mob of

persons had assembled near Hanuman Temple; and that those

persons were slowly moving towards the bakery and were

shouting to the effect 'maro' 'todo', 'bakery jalao',

etc. The witness initially wanted to avoid saying

anything further and therefore stated that on noticing

this, he was frightened and closed the door of his house

and remained inside. Obviously, as his evidence reveals,

this was stated with the object of avoiding any further

questions and answers about the incident. A curious

aspect of the evidence of this witness is that he

deposes about the happenings and then suddenly says that

'it had indeed happened that way, but he had not seen

it'. Ultimately, what he admits is interesting. That he

had seen the members of mob that had gathered at Hanuman

Tekdi; and that they were having sticks and stones.

When confronted with his deposition [X-77 for

identification] in the Court at Vadodara, he admitted

having said there about the rioters being armed with

'guptis' also, but claimed that he might have stated so

because he had heard it. He also admits having stated so

during the previous trial. Thus, he does indeed support

the prosecution, but then suddenly withdraws and states

that all this had happened is true, but he had not seen

it. It is obvious that he is not willing to disclose all

that he knows. Though much can be said about his

 321

evidence, it would not be of a much use in the ultimate

analysis and therefore, I would concentrate on what he

ultimately admits as personally experienced and seen by

him.

502. He does speak that he had seen the mob of rioters.

According to him, some persons from the locality had come

in the morning for helping the inmates of the

Best Bakery building. Kanchan Mali says he himself saw

the happening on the rear side of the Best Bakery

building; and that those persons were trying to help the

inmates of the Best Bakery building from the rear side.

Thus, according to him, the persons who had gathered

there in the morning were not the assailants, but the

persons assembled for helping the inmates. He also

says that he saw a ladder. He also states that help was

being given by those persons to the inmates of the Best

Bakery building, by putting up something like ladder.

However, curiously, he states that when the police came,

those persons, whom he refers to as 'hamarewale' ran

away. He has clarified that by 'hamarewale' he meant

'Hindu'. He said that he could not say who were those

Hindu people; and that he did not know their names. He

was therefore questioned as to how then he understood

them to be 'Hindus', to which he has replied that

'because in that locality, only Hindus were residing'.

 322

After prolonged questioning, apparently the witness was

anxious and worried over the answers which he was giving

and then gave, deliberately confusing, inconsistent and

rather foolish appearing answers. His idea seems to be to

make his evidence absolutely incomprehensible.

503. He admits having said to the police that the persons

in the mob were having sharp weapons like swords and

'guptis' and also petrol, kerosene 'kaarba', but claims

that it was stated on the basis of what he had heard. He

however, admits that he did not state before the police

that what he was telling them was based on what he had

heard. He stated before the police, as if, he had seen

those things himself. He adds that it was his mistake not

to have stated to the police that the facts which

he was stating to them were not seen by him, but were

heard by him. This is how he tries to resile from what

he has stated. At the same time, he states that in the

Court at Vadodara, he stated only the facts which he had

personally seen or observed. He agrees that it did

happen that the mob of Hindus had ransacked the Best

Bakery building; and that they had set on fire the Best

Bakery building and the house adjoining the bakery

building. After having said so, he takes a pause and

volunteers as follows: This had happened certainly, but

I had not seen it' This is ridiculous and this is what

 323

the attempt of the witness appears to be viz:- to make it

appear that the evidence given by him is ridiculous so

that it can be excluded from consideration.

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

false evidence.

505. What he, however, admits as having seen himself is

that people from Best Bakery building were getting

down, that they were being attacked by the mob as soon as

they get down, that the ladies were being dragged; and

that when the men tried to run away, the persons in the

mob tied their hands and legs and set them on fire. He

confirms that on seeing this sorrowful scene ['dardnaak

drishya'] and since he was not able to bear it he went to

his house [Page 1654, Para 31 of the Notes of Evidence].

Thus, this, he himself has actually seen. It was got

clarified from him as to what was the 'sorrowful scene'

which he was unable to see when he answered as “woh jo

maar-jhod kar rahe the”. He admitted again, that the

persons were beaten and blows were being given to them.

He however, made an obvious attempt to dilute the same by

saying that the assault was by 'sticks'. This is

inconsistent with the injuries sustained by the concerned

persons who were obviously the inmates of the Best Bakery

building.
 324

506. Apparently, the witness himself was unable to think

of an explanation regarding the absurdity in his evidence

viz: mentioning of certain facts as having happened and

then adding that he had not seen or perceived the said

facts.

507. Shri Shirodkar, the learned Senior Advocate in the

cross-examination supplied some explanation to this

witness of his evidence which the witness gladly

accepted. Thus, it was asked to the witness that the

police were asking him something whether it had happened

in particular way and he saying 'Yes', to which naturally

the witness has agreed, having found out a way of

explaining how facts not seen by him are appearing in his

evidence and the statement before the police. A reason

for his going on answering in affirmative to the

questions put by the police is also supplied. Thereafter,

the theory of darkness is introduced which also, is

accepted by this witness. Unfortunately for the accused,

it could not be suggested that it was dark in the morning

also and as such, the evidence regarding the incident in

the morning as given by Kanchan Mali could not be

established to be false, though Kanchan Mali would have

been certainly willing to indicate the same, had he got

any suggestion as to how it could be done.

 325

508. If at all, any doubt, about Kanchan Mali's

determination not to support the prosecution and about

his falsehood remained, the same is removed from the

questions put to him, in the cross-examination and the

answers given by him to those questions.

C] Veersingh Zala [P.W.45]

509. Veersingh Zala [P.W.45] is also a resident of Daboi

Road locality. Though he claims that Hanuman Tekdi is

situated at a distance of about 1/2 kilometer from his

house, the same does not appear to be correct. He is

supposed to have witnessed the incident, but in his

testimony before the Court, denied any knowledge about

the same. He was declared hostile during the previous

trial also. He was contradicted with certain portions

from the record of his statement [X-78 for

identification] recorded by the police during

investigation. These contradictions are duly proved and

have been marked as Ex.438 to Ex.444 respectively.

However, even after confronting him with the relevant

portions, this witness did not admit the truth or

correctness thereof, or even the fact of having stated

so. His evidence is therefore of no assistance to the

prosecution. According to him, he does not know the

 326

accused or any of them. He however admits that the

accused in this case, are from his locality and from

nearby locality.

510. A consideration of the evidence of [Link]

Bhatt [P.W.43] and Kanchan Mali [P.W.44] shows that both

of them were clearly unwilling to depose in favour of the

prosecution. The reluctance was more than was in the

previous trial. Though, these witnesses were declared

hostile and though I have held that they have given false

evidence, it is not that their evidence is to be totally

excluded, from consideration. The part of their evidence

which is found to be true, can be accepted. The

evidence favourable to the prosecution, as obtained from

these witnesses is of great value, coming as it is, from

witnesses unwilling to support the prosecution.

HOSTILE WITNESSES [VICTIMS] FROM THE FAMILY OF

HABIBULLA SHAIKH

511. I shall now consider the evidence of the other

occurrence witnesses who had, all, turned hostile. These

are Zahira [P.W.41] - the first informant - and her

brothers Nafitulla [P.W.31], Nasibulla [P.W.30], her

sister Saherabanu [P.W.35] and her mother Saherunnisa

[P.W.40].
 327

512. Hostility is not uncommon in criminal courts. In

fact, jurists have recognized that there exists a problem

of hostility of witnesses which problem has assumed great

proportion in recent years posing a threat to

administration of justice. However, I may observe that

the hostility of these witnesses in this case is rather

unique. An analysis of their evidence leaves no manner

of doubt that they are interested not only in denying the

connection of the accused persons with the alleged

offences, but have tried their best to deny the happening

of the incident itself; and where it became impossible,

to try to reduce the enormity of the offences. Zahira's

evidence gives a clear impression that she was keen on

disputing one factor – viz. that she had made any

complaint to any authority, or publicly, about the

improper conduct of previous trial, or had asked for a

retrial at any time.

513. Much discussion on the evidence of these witnesses

is not necessary for adjudication of the guilt or

otherwise of the accused persons. However, as these

witnesses have attempted to make a mockery of the whole

system of administration of justice, the matter can not

be ignored altogether and the discussion should not be

curtailed. These witnesses appear to have turned hostile

 328

at the instance of some persons and tutored not with the

limited object of ensuring the acquittal of the accused,

but for much broader objects. There was an attempt to

show through these witnesses that there was a conspiracy

of a particular community or of a group of people to make

false allegations for getting an order of retrial. All

this is required to be exposed, when the issues in

question have been put forth for consideration by this

Court.

A] EVIDENCE OF NASIBULLA [P.W..30]

514. It would be convenient to discuss the evidence of

Nasibulla [P.W.30] first as he was the one who was

examined first out of these 5 witnesses.

515. It is not in dispute that Nasibulla himself was

injured in the incident. On examination, [Link]

Robin [P.W.46] found patient Nasibulla to be unconscious.

He had a head injury. Three I.W.s on left occipital

parietal region were noticed, as follows.

i) Size – 15cm X 2cm X scalp deep,

ii) Size – 10cm X 2cm X scalp deep,

iii) Size - 8cm X 2cm X scalp deep,

Nasibulla had burn injuries on both lower limbs.

 329

516. Nasibulla does speak about the riots and also admits

that he sustained an injury on his head and also burn

injuries on his leg. He also states that the head injury

and the burn injuries were suffered by him on one and the

same day; and that he was taken to S.S.G. Hospital. He

also states that the whereabouts of his maternal uncle

Kausarali, who was looking after the bakery business

after the death of Habibulla, could not be ascertained

after the riots.

517. Interestingly, though Nasibulla speaks of the riots

having started at about 9.00 p.m., he states that he does

not know till what time they continued; and the reason

which he gives for the same, is that, after sustaining an

injury on the head at about 11.00 p.m., he had lost

consciousness and what happened thereafter, he does not

know. Thus, according to him, he sustained the head

injury while he was on terrace. As shall be discussed

later at an appropriate place, this part of his evidence

– viz. that he had sustained an injury on the

head in the night while he was on terrace and had lost

consciousness thereafter, which he regained only in the

hospital – is false and cannot be accepted at all. At

this stage, it may only be noticed that this is a feeble

attempt to suppress the morning incident.

 330

518. Though the witness has exhibited a reluctance to

give the information regarding the incident, [Link]

Rao, the learned Spl.P.P. has been able to get sufficient

material on record through him which confirms the

happening of the incident in the night. Nasibulla does

speak of rioters setting fire to Lal Mohammad's wakhar,

then to Aslam's room and to the Best Bakery building.

The Spl.P.P. has been able to wrest evidence supporting

the story of the rioters coming in big number, they

occupying the entire area surrounding their house,

setting fire, throwing stones and burning glass bottles

over the terrace, etc., from him.

519. He claims not to know whether any persons known to

him were among the mob of rioters and the absence of this

knowledge, he attributes to smoke and darkness. He has

volunteered to state, after having spoken about stone

throwing, that they [he and others] pulled the mattresses

over their heads so that the stones would not hit them.

It is interesting, however, that he still sustained an

injury on head. He also volunteered that it was dark and

there was smoke. He was keen on expressing at the

earliest opportunity, the impossibility to see anything

and at any rate, to make it clear that he had not seen

anything.
 331

520. Consistently with the story that he lost

consciousness in the night itself and while he was on the

terrace, and of his regaining consciousness only after he

was taken to the S.S.G. Hospital, he states, naturally,

that he did not know how he got down from the terrace.

He himself makes it clear that it is obvious that

somebody might have got him down as otherwise, he would

not have reached the hospital. This is significant in

the context of the fact that the police, or the fire

brigade, have definitely not brought him down from the

terrace. There is sufficient evidence, as discussed

earlier, to indicate how the incident came to an end and

how the inmates were rescued. Nasibulla was reluctant

even to admit that the bakery had caught fire and came to

learn it only through newspaper 'Gujarat Samachar' on the

next day.

521. Nasibulla claimed that he did not know any of

the accused before the Court and denied having

seen any of the accused in the mob of rioters. Nasibulla

has been contradicted with his statement [X-23 for

identification] recorded during investigation. The

contradictory version has been properly proved through

PI Baria [P.W.72] which shows that Nasibulla had

claimed in his statement recorded by the police about his

having seen certain persons known to him in the mob of

 332

rioters and had given the names of some of them. The

contradictory versions of Nasibulla, duly proved through

[Link], establish that he had also claimed that

besides those named by him, there were others whom he

could identify if he would see them. The version which

he gave before the police disclosed the morning incident

also - i.e. that he claimed that he was attacked,

assaulted and injured in the morning; and that while the

assault was going on, the police arrived and saved him

and others. Even after having confronted with the

relevant portions in his statement, Nasibulla claimed

that he never stated so; and that the happenings, as

recorded in the relevant portions [Ex.319, Ex.320,

Ex.321, Ex.322 and Ex.323], never took place. His

version [Ex.324] about one Nasru Pathan residing in the

bakery, is also brought on record in order to contradict

him. Nasibulla maintained that he never stated anything,

as is reflected in the portions marked Ex.319 to Ex.324,

to the police; and that he could not say why it was so

recorded by the police.

522. That Nasibulla and even the other hostile witnesses

were tutored, is very obvious from the way they have

deposed. After the commencement of the retrial,

Zahira, it may be recalled, had gone to Vadodara and

held a press conference making statements contrary

 333

to what she was supposed to have stated earlier.

Nasibulla was questioned in the examination-in-chief

regarding the said press conference and it would be

appropriate to reproduce the said question and answer

here.

'Ques.-The press conference was called

by whom ?

Ans.- 'Gunda' Raees Khan – a man of Teesta

Setalvad- was troubling us by coming

to our house. To explain that,

Zaheera had called the press

conference.'

One can clearly see that Nasibulla was anxious to

disclose the cause of holding the press conference and

since that had not been asked, though he was in the

witness box for quite some time, he decided to disclose

the same on his own.

523. The cross-examination of Nasibulla shows that he had

been completely won over and was quick to admit

everything that would destroy the prosecution case. The

attempt in the cross-examination was to make him stick to

the evidence which he gave in the Court at Vadodara,

which was obviously in favour of the accused. To the

contention advanced on behalf of the accused, that the

witnesses Taufel [P.W.26], Raees [P.W.27], Shehzad

 334

[P.W.28] and Sailun [P.W.32] were actually not sitting on

the cot when the mob of rioters came, support was

attempted to be derived from Nasibulla but it has not

been very successful. Nasibulla was asked in the cross-

examination whether it was correct that the servants

were, from the beginning only, on the terrace. Nasibulla

replied that the servants used to sleep on the terrace

and further told to the Court that they were not on the

terrace from the beginning. Naturally, on further

questioning, Nasibulla realized what answer is required

by the defence and agreed to the suggestion that on that

day also, they were on the terrace, but added that they

were 'sleeping' on the terrace. Ultimately, the

following precise question was required to be put to him

which was precisely answered by him.

'Ques.- When the mob came, the servants

were already on the terrace.

Is it correct ?

Ans. - Yes. They were on terrace.'

This entire questioning and answering on this topic

clearly shows that Nasibulla changed his version on being

aware of what is required or expected of him by the

cross-examiner and duly obliged him by giving the

required answer.

524. The collusion between the defence and Nasibulla is

 335

obvious and can be pointed out inter alia from the

following. A question was asked to him in the cross-

examination 'whether he stated in his evidence before the

Court at Vadodara that the police had obtained his

signature on his statement'. Nasibulla stated that he

did not state so. The purpose of this question was not

realized and therefore it was thought rather curious. The

object behind that is revealed to be, to come out of what

Nasibulla had stated before the Court at Vadodara. The

record of Nasibulla's deposition in that Court shows that

Nasibulla had stated that 'he had not stated who were in

the incident with which weapons and instruments they were

armed and what they had done; and that police had just

obtained his signature.' Though not much turns on this,

it exhibits clear collusion between the defence and this

witness. Ironically, Shri Adhik Shirodkar, the learned

Senior Advocate, who was very vehement in suggesting the

witness to be audacious, in addition to be a liar,

whenever any witness supporting the prosecution tried to

deviate even a little from the record of the previous

trial [and though was willing to explain or speak about

supposed inconsistency or contradiction,] does not mind

such a drastically opposite statement made by Nasibulla.

Rather, he invites such a statement, leaving aside his

views about the sternness with which such a witness - who

implies the Court record to be false - should be dealt

 336

with, as expressed by him during the cross-examination of

some other witnesses, and emphatically put forth during

arguments.

525. After the video cassette [Ex.283] was introduced in

evidence, Nasibulla was recalled and further examined by

the learned Spl.P.P. The C.D. [Ex.283/3] equivalent to

the relevant part of the cassette [Ex.283] was played

over to him. Nasibulla has admitted the shooting to be

of his house at Hanuman Tekdi; and that it being in

respect of the fire that had been caught to their bakery.

He has also admitted the shooting to be of 2nd March.

526. His further examination by the learned Spl.P.P.

reveals that certain amounts have been credited to his

and Zahira's account in Syndicate Bank. There seems to

be no proper explanation of how and from where these

amounts were got deposited in the relevant bank accounts.

527. Nasibulla's evidence shows that he is hostile,

that he has been tutored and is obviously lying on

several material aspects.

EVIDENCE OF NAFITULLA [P.W.31]

528. Nafitulla [P.W.31], though hostile, undoubtedly and

 337

admittedly sustained injuries in the incident and was

required to be admitted into hospital. The injuries

sustained by him have already been mentioned earlier.

529. Nafitulla does speak about the riots that took

place on 01/03/2002, and also states that the riots took

place in the entire State of Gujarat; and that they took

place because of the incident of train burning at Godhra.

He speaks of the bakery of his father and their house

situated at Hanuman Tekdi. He also gives the details of

the persons working in the bakery as Sailun, Shehzad,

Taufel, Raees, Prakash, Baliram, and Rajesh, etc. He

speaks of the house of Aslam being situated by the side

of his house. Nafitulla also states that Kausarmama was

also living in their house when the riots started. What

he disputes is the presence of Yasmin.

530. Nafitulla states that the bakery was burnt on

01/03/2002, by a mob of about 1000 people. He also

states that while he and other members of his family,

together with the servants, were on the terrace, one of

his sisters - Sabira - was on the first floor in one of

the rooms along with members of Aslam's family.

531. The hostility of Nafitulla is manifest and visible

from the fact that though he says that Sabira died in

 338

riots, he is not ready to say that she was burnt to

death. To a question, 'how did she die' he gives an

evasive answer to the effect that 'those people had

closed the door from the inside; and that therefore he

did not know what had happened thereafter'.

532. Nafitulla states that they all were hiding on the

terrace. Nafitulla states that he was admitted into the

hospital, but it is remarkable that without any

questioning, he volunteers '”but how I went there, I do

not know” [Pages 587-588 Notes of Evidence]. This anxiety

seems to be for the purpose of avoiding disclosure of the

incident that took place in the morning, or avoid

questions which would be put regarding that.

533. Nafitulla states that he was admitted in the

hospital on the next day - i.e. on 02/03/2002;- and that

he was admitted therein for about 8 days. Nafitulla

admits having sustained injuries on his head and neck.

He also claimed to be not aware of the whereabouts of

Kausarmama.

534. Interestingly, after answering in reply to a

question, that they had gone to the terrace at 9.00 p.

m. Nafitulla volunteers “there was no light and there

was much smoke”. This shows that Nafitulla, like

 339

Nasibulla, had been tutored to say certain things which

were expected to come up, in the examination-in-chief,

but probably having been aware of the hostility of the

witnesses, the learned Spl.P.P. adopted a different line

of questioning whereby such straight questions were not

forthcoming. It is apparent that therefore, Nafitulla

decided to volunteer to state as was tutored or as, at

any rate, had been already decided by him to state.

535. Nafitulla also adopts the theory of losing

consciousness on the terrace itself, on being hurt by the

stones and bottles that were being thrown. As discussed

earlier while discussing with evidence of Nasibulla,

there exists an anxiety on the part of these witnesses to

claim that they lost consciousness in the night itself

and therefore, did not know what happened thereafter, as

they regained consciousness only in the hospital. This

is obviously because of the desire to avoid speaking

about or being questioned, regarding morning incident.

Both Nafitulla and Nasibulla are undoubtedly lying about

their having lost consciousness in the night on the

terrace itself and about the injuries that were sustained

by them being caused to them in the night itself. It is

clear that, in that case, they could not have got down

from the terrace on their own. Neither Zahira, nor

Sahera, nor Saherunnisa, nor any of the supporting

witnesses claimed that they brought Nafitulla and

 340

Nasibulla down from the terrace, which even otherwise

seems to be rather impossible, considering the fact that

all these persons got down from a bamboo ladder and the

extent of injuries sustained by Nafitulla and Nasibulla.

536. Nafitulla has given the reason for his going to

Vadodara after the commencement of the re-trial as the

threats given to them by Teesta's Raees Khan and other

'Gundas'. The theory of the threats given by [Link]

Setalvad and 'her Gundas' shall be discussed later, to

show how improper and unbelievable the story of these

witnesses is. At this stage, what needs to be observed

is that Nafitulla is anxious to disclose what were the

threats and therefore without asking, volunteers to say

'that the threats were to the effect that false statement

will have to be made; and that it was a matter of the

community'.

537. The evidence of Nafitulla and Zahira reveals that

these witnesses are assisted by one 'Jan Aadhikar Samiti'

which is said to be consisting of only person – viz.

Tushar Vyas - who is an Advocate. At any rate, nobody

else from such Samiti is known to either Nafitulla or

Zahira. Nafitulla states that the expenses of the Press

Conference which was held by Zahira after secretly going

to Vadodara from Mira Road-Bhayander [which was after the

 341

commencement of this trial] were born by 'Jan Adhikar

Samiti'. The services of Advocate Atul Mistry also were

provided by 'Jan Adhikar Samiti' only. The role of 'Jan

Adhikar Samiti' and Advocate Atul Mistry, can be

discussed more conveniently while discussing Zahira's

evidence.

538. Nafitulla had appeared before the Court after the

commencement of the re-trial. He was lodged at the

'Visava Guest House' where arrangements had been made for

the stay of the witnesses in this case. However, he

disappeared from the 'Visava Guest House' without

informing anyone and with Zahira and others went to

Vadodara. He left his second wife - Heena @ Kailash -

and his child at the Guest House itself. Thereafter, a

press conference came to be held by Zahira at Vadodara

which, as aforesaid, was financed by 'Jan Adhikar

Samiti'. In the Press Conference, Zahira made statements

contrary to what she had or supposed to have stated in

the Supreme Court of India. Nafitulla has admitted that

he was aware of the fact that a retrial of the 'Best

Bakery Case' to be held in Maharashtra, was ordered by

the Hon'ble Supreme Court of India; and that he had come

to know before going to Vadodara that the retrial had

been started. The learned Spl.P.P. has specifically

questioned Nafitulla as to what he stated before the

 342

Television could have been stated by him before the

Court, and Nafitulla has agreed that he could do so.

539. Nafitulla was unable to explain the injury on his

neck and has stated that it must have been suffered by

him, on account of bottles, which were being thrown on

the terrace from below on 01/03/2002. He claims that the

said injury was caused to him after he had lost

consciousness; and that therefore, he could not say in

what manner and by which weapon or object the injury on

his neck was caused.

540. Nafitulla, however, admits that a mob of about 1000

to 1200 persons had come to the 'Best Bakery building on

01/03/2002 at about 9.00 p.m.; and that the persons in

the mob were shouting 'jalao', 'jalao' and 'bakery

jalao'.

541. Nafitulla further admits that the mob surrounded

their house; and that they burnt the house and bakery.

Interestingly, when asked as to whether the mob consisted

of certain persons named in the question, Nafitulla

answered in the negative. It is worth reproducing

question and answer here:

Ques.- Did it happen that among the mob

that had assembled there, social

 343

worker Thakkar from your

zopadpatti area, Jayanti tea

vendor, Jayanti's nephew – Mahesh

-, Munno and Pratap, Jayanti's

son, Mahesh's friend – Kiran -,

and Lalo, as well as Painter –

residing in front of Sindhi's shop

-, and Jitu - who resides opposite

your lane -, were playing major

role and leading the mob?

Ans.- No. They were not there.

542. Now, this negative answer, suggests two things –

first that these persons were known to him and second,

that he could see the persons in the mob. A question as

to whether he knew those persons was therefore asked to

Nafitulla by the Court when Nafitulla replied that 'he

did not know any of these persons whose names were

mentioned in the question' and on further questioning

replied that what he wanted to say was that 'he did not

know any of those persons and not that they were not in

the mob'.

543. Nafitulla has been contradicted by the statements

made by him to the police during the investigation on a

number of aspects. These contradictions are duly proved,

 344

marked and exhibited. It is not necessary to refer to

all these contradictions separately, but it is sufficient

to state that Nafitulla having stated about Nasru Pathan,

about he having given the name of certain persons as

present in the mob and leading the same and moreover

about the morning incident is proved. The version of

Nafitulla in the statement [X-25 for identification]

recorded by the police, dated 04/03/2002, to the effect

that the persons in the mob tied the limbs of Nafitulla

and Nasibulla as well as the employees working in the

bakery after all of them had got down from the terrace in

the morning; and that the persons in the mob thereafter,

assaulted them by sharp edged weapons like swords knives

etc. has been brought on record for contradicting him.

Nafitulla's version 'that the persons in the mob

inflicted blows on him, his brother Sailun, Taufel,

Raees, Shehzad'; and that 'the blows were inflicted with

sharp weapons' and that; 'the injuries were caused by the

persons from the mob' has also been brought on record.

The contradictory versions of Nafitulla in his subsequent

statement recorded on 10/03/2002 and on 01/04/2002 have

also been brought on record and duly proved.

544. The evidence of Nafitulla about losing consciousness

in the night and while on the terrace itself, leaves many

questions unanswered and if the version before the police

 345

is taken into consideration, it provides answers to those

questions. Unfortunately, even if the Court comes to

the conclusion that the version of Nafitulla and

Nasibulla as appearing in the statements recorded during

investigation is true, and their version before the Court

is false, no use of the version as appearing in the

statements recorded during investigation can be made by

way of evidence. Apart from the prohibition imposed by

Section 162 of the Code, it is elementary that pre-trial

statements can not constitute evidence, save and except

those made admissible by some provisions in the Evidence

Act. It is only the statements made by the witnesses

before the Court that are evidence and the previous

version of a witness, even if duly proved, can be used

only for the purpose of corroborating or contradicting a

witness with regard to his testimony in the Court. Since

these statements have been recorded during investigation,

keeping in mind the prohibition imposed by Section 162 of

the Code, they can be used only for contradicting him

which has been done. The version of Nafitulla as found

in those statements even though duly proved, can not be

made use of as evidence. Ironically, had Nafitulla died

on account of injuries sustained by him, the statements

of Nafitulla would have been admissible in evidence as

his dying declaration. The same would be true with

respect to the contradictory version of Nasibulla also.

 346

Both of them had sustained injuries which endangered

their life and in the event of their death, certain

statements made by them before the police would have been

substantive evidence and could be acted upon. Though the

Court is empowered and competent to come to the

conclusion that version of Nafitulla and Nasibulla as

given by them before the police represents a rather

accurate, though not full picture of the happenings, no

use of those statements as and by way of evidence can be

made, because Nafitulla and Nasibulla both survived to

turn hostile and disown their own statements.

545. That Nafitulla had been fully won over and was out

to destroy the prosecution case, is clear from many

facets of his testimony, one of which can be given here

by way of an example. Nafitulla stated during his

examination-in-chief that in this case F.I.R. was lodged

by Zahira. He further stated that he learnt it about

after about one and half months from the date on which

she had lodged it, though he did not come to know what

was written in the F.I.R. Nafitulla further confirmed

these aspects. In further questioning he states that he

had a talk with Zahira in which she told him that she had

lodged the F.I.R., in this case. As shall be discussed

later, it has been attempted to project that no F.I.R.

had been lodged at all by Zahira and no report had been

 347

made at all, by her. In order to show that, it was the

order for retrial was fraudulently secured, it was

essential to make a claim that Zahira had not lodged any

'F.I.R.' at all; and that the whole case was a creation

of some interested elements. When this requirement of

the defence was realized by Nafitulla, he tried to do

what could be done maximum, to resile from the statement

to the effect Zahira having lodged the F.I.R. In the

cross-examination, he stated that he did not know what is

'F.I.R'; and that he did not know the meaning of this

term. This can not, at all, be believed in view of his

previous evidence. If he did not know what is 'F.I.R.',

he would have never said that in this case 'F.I.R.' was

lodged by Zahira, that he did not know what was written

in the 'F.I.R.', that he learnt about Zahira having

lodged it after one and half months, etc.

546. Though Nafitulla was fully hostile, he was, still,

cross-examined at length, by the Advocates for the

accused, in an attempt to discredit the testimony of the

supporting witnesses on certain points such as place

where the supporting eye witnesses were sitting, when the

rioters came, etc. The reliable testimony of the

supporting witnesses can not be discredited by answers

obtained from a hostile witness who is utterly unworthy

of credit and a positive liar; and that too, by putting

 348

him leading questions. As shall be discussed later, the

claim of there being an 'improvement' as to the place of

sitting, as made, has failed.

547. It has been elicited from Nafitulla by putting

leading questions to him in the cross-examination that

when he and others were hiding themselves on terrace

there was thick smoke, no light and nothing could be

seen. It is further got confirmed from him that due to

smoke and darkness, who were setting fire to the bakery

below, could not be seen by him; and that it was so

stated by him before the Court at Vadodara. No importance

to such statements of a patently hostile witness, can be

given and certainly not to discredit the evidence of

other witnesses who are found to be trustworthy. Even

otherwise, the theory itself is absurd and in the zeal to

get admissions from Nafitulla, it has been lost sight of

that the question of smoke would arise after fire and

therefore, who were setting fire to the bakery would not

be impossible to see on account of the smoke which would

not be there at that time.

548. Several false admissions from Nafitulla such as he

did not know how the injury on his neck below left ear

was caused; and that he had not seen the persons who set

the fire and did other acts; and that he had not seen
 349

anyone taking away the articles in their bakery; and that

he had not seen anyone setting fire to the vehicles have

been obtained on behalf of the accused. All these

statements are sought to be confirmed and corroborated by

his admission of having stated so in the previous trial

also. These admissions are contrary to be probabilities

of the case, apart from being totally in conflict with

the weight of evidence on record. It is one thing to say

that he had not seen any person known to him or that he

could not identify any of the persons who set fire or

took away the articles, etc., but it is quite another to

say that he had not seen anybody at all, in spite of

having seen the mob.

549. Nafitulla has filed a complaint against Madhu

Shrivastava on 27/09/2003. According to him, he was

falsely made to make that complaint by Mohammad Vora,

Munna Malik and Arif Malik. That complaint has nothing

to do with the involvement or otherwise of the accused in

the present case or more particularly with the offences

in question. Nafitulla not having supported the

prosecution in this case, whether the complaint lodged by

him against Madhu Shrivastava was false or not would not

be relevant and the aspects, whether it was likely to be

true or not, whether it had not been written by him,

would not be relevant at all. The relevancy thereof

 350

would have arisen, had Nafitulla supported the

prosecution case here. In that case, he would have been

challenged with reference to his claim in the nature of

explanation of why he gave false evidence in the previous

trial.

550. The subject of the organization of Smt. Teesta

Setalvad spending money on Nafitulla and his family

members - i.e. towards their ration, etc. - was taken in

the cross-examination and it was got clarified from the

Nafitulla that Teesta Setalvad and Raees Khan and other

'Gundas' used to say that false statements will have to

be made in the Court at Mumbai.

551. The following questions and answers are worth

reproducing before they are commented upon.

Ques.- Did they also tell you what false

statements you will have to make

before the Court in Mumbai ?

Ans.- They said that I will have to make

false statements as would be tutored

by them.

Ques.- They also told you that you will have

to identify the accused persons in

the Court, as would be told by them

to you. Is it correct ?

Ans.- Yes.
 351

Ques.- In what manner, they had said, you will

have to identify the accused persons ?

Ans.- They said that they would show the

photographs of the accused persons to

me.

552. A story offering an elaborate explanation as to how

and in what manner false allegations of previous trial

having been unfair were made, how the Supreme Court of

India was misled, how Zahira was deceived or forced to

make false statements, how, after a re-trial was ordered,

she was being threatened to make false statements and how

all this was the act of the N.G.O. - Citizens for Justice

and Peace - and [Link] Setalvad, the Secretary of the

said organization; was attempted to be developed and

emphasized by the defence as a possible and plausible

explanation of the unbelievable happenings. It was

emphasized that the evidence needs to be appreciated in

the context of these facts. These aspects can be

conveniently and more effectively dealt with after

discussing Zahira's evidence. At this stage, and in the

light of the questions and answers reproduced above, it

may only be observed that Nafitulla has been completely

won over, not only with the object that the charge

against the accused should not be proved, but with the

object of suggesting a great conspiracy of a particular

 352

community to falsely use the machinery for administration

of justice. Interestingly, the answers do not reveal

that any tutoring was actually done as to what false

statement Nafitulla was supposed to make. The answer to

the first question reproduced above, shows that actually

nothing was tutored to Nafitulla and the stage of

tutoring was yet to come. The next question reproduced

above is rather interesting and one can not help

observing that it has been a marked feature of the cross-

examination to confront only a favourable witness with

the aspects desired to be brought on record. In order to

offer an explanation which was apparently thought

necessary by the learned Advocates for the accused as to

how supporting witnesses who had been earlier examined

had identified the accused persons in the Court, the

story of [Link] Setalvad and others telling Nafitulla

that they would show the photographs of the accused

persons to him, has been introduced. There is no wonder

that Nafitulla who was too ready to oblige the defence

has accepted this suggestion, but what is curious is that

the witnesses who have identified the accused persons –

though have been cross-examined with respect to the

question of tutoring - have not been suggested of being

told that they would be shown photographs of the accused

persons or being actually shown the photographs, etc. It

is indeed ironical that Natifulla who does not identify

 353

anyone has been asked to 'expose' the attempts made to

make him identify the accused persons falsely, but those

who have identified the accused persons actually, have

not been asked about the photographs of the accused

persons shown to them. The powerful weapon for discovery

of truth – the cross examination – is used against those

whose evidence was not adverse to the accused at all, but

no use of this weapon was made to elicit from the

supporting witnesses, the alleged fact of photographs of

the accused having been shown to them. No value

therefore, to such statement of Nafitulla can be given.

Moreover, even according to Nafitulla, no photographs of

the accused persons were actually shown to him. All that

he says is that [Link] Setalvad and others had at all

said that the photographs 'would be shown' to him.

553. The cross-examination of Nafitulla by Shri

Jambaulikar is rather interesting and all that the

defence wanted was systematically put to him one by one

and Nafitulla went on admitting all that was so put, as

correct. Thus, he admitted that the lights in the house

were switched off, the door of the room on the first

floor was closed from inside, that no outsider was in a

position to enter inside, that on the road in front of

bakery there was no electricity, no lights; and that

there was complete darkness, etc. He accepted as correct

 354

the suggestions that there was no light either on the

left side or rear side of the Best Bakery or that there

is no electricity pole in that area, that there was total

darkness in that area, that it was not possible due to

the darkness to see who was or were there, etc. etc. It

was put to him that when the mob of rioters came the

servants were not sitting on a cot outside the bakery,

which Nafitulla readily accepted. No reliance can be

placed on these admissions of Nafitulla as they are

patently false, as can be judged from the other evidence

on record. That Nafitulla is totally unworthy of credit,

has lied on several material points and has been clearly

won over to depose against the prosecution is well

established. These statements of Nafitulla intended to

discredit the version of the supporting witnesses have no

value whatsoever, in my opinion.

554. What is remarkable is that in the cross-examination,

minute details - not based on any information disclosed

from the record or not supposed to be known to the

accused - have been put to Nafitulla. There is a clear

indication of collusion between the accused or somebody

interested in affecting the prosecution case on one hand

and Nafitulla and the other hostile witnesses on the

other hand.
 355

555. Mohammed Vora, Munna Malik and Arif Malik are named

by Nafitulla as the 'persons from his community' who used

to visit him in the hospital and tell him that in order

to get compensation, he should do what they would be

telling him to do. By this statement Nafitulla has paved

a way for explaining his future conduct in making

allegations against the accused.

556. Nafitulla was recalled for further examination by

the learned Spl.P.P. after the cassette [Ex.389/A]

containing the record of statements made by Nafitulla

during his interview taken on 18/04/2002, by Pankaj

Shankar [P.W.73], was tendered in evidence. Nafitulla was

confronted with the relevant part of the interview. I

shall consider the contentions and objections raised with

respect to the testimony of Pankaj Shankar and as to the

date on which the Nafitulla is said to have made the

statements separately. It is however, a fact that when

confronted with the record of his interview Nafitulla

does admit that this is a record of his interview; and

does admit having said, what is heard as being said by

him. The only explanation of his, is that he was saying

what was tutored to him. He also agrees that the

statement that were made by him in the said interview

related to the Best Bakery incident. He admits having

made various statements implicating the accused during

 356

the interview, but states that it is because Teesta had

tutored him, to say so. Each and every statement that

was put to him he admits having been made by him, but

only states that it was said by him as tutored by Teesta

and others. All this can not be accepted if the date of

the said interview as '18/04/2002', as given by Pankaj

Shankar, is accepted. I wish to discuss this aspect

separately while dealing with the evidence of Pankaj

Shankar, as it is relevant from the point of view of and

in the context of the evidence of other hostile witnesses

– including Zahira – also.

Saherabanu [P.W.35]

557. The next hostile witness is [Link] Habibulla

Shaikh [P.W.35], sister of Zahira Shaikh [P.W.41]. She

is also an occurrence witness and she is also extremely

hostile. Without wasting much time on the discussion of

her evidence, the extent of her hostility may be

illustrated by giving a few examples.

A] That Sabira – Saherabanu's and Zahira's sister –

died in the riots; and that she was burnt in the fire

that was set by the rioters to the Best Bakery house, is

not in dispute at all. In fact, such an admission does

not even remotely implicate the accused or connect any of

them with the alleged offences. In spite of this, what

 357

is the attitude of Sahera [P.W.35] on this, can be best

illustrated by the following questions and answers, from

the notes of her evidence.

'Ques- How did Sabira die ?

Ans.- That I do not know.

Ques.- When did she die ?

Ans.- When we were residing at Hanuman

Tekdi.

Ques.- Do you know what had happened to her

Ans.- I do not know.' [pg.799 of Notes of

Evidence]

This speaks for itself.

558. After some further questioning, Sahera was further

questioned on this subject and the notes of her evidence

that are being reproduced below, make an interesting

reading.

'Ques.- How do you know that Sabira has

died?

[Court Note :- Witness takes some time

and then states, “I do not remember”.

She is explained as to what is the

question and the question is repeated

again].

Ans.- When my father was alive, we

all were staying together.

 358

[The same question is repeated again].

Ans.- Sabira had not died. She was

studying in school.

[The same question is repeated again].

Ans. - Sabira's death occurred in

the riots that had taken

place.'

B] The witness displayed such an attitude that to bring

her to the point, questions were, on certain occasions,

required to be put to her by the Court itself. The

evidence reproduced above clearly indicates that the

witness was avoiding, as far as possible, to say even

that Sabira's death occurred in the riots. It is only

after repeated efforts and after cornering her in that

regard, she had to admit that Sabira's death occurred in

the riots that had taken place. Though Sahera has denied

it when asked by the Court, it is obvious that she did

not even want to refer to the riots to say that Sabira

died in the riots and this speaks volumes of the frame of

mind of this witness.

559. Instead of saying that the wakhar opposite their

house was set on fire, when questioned as to what

happened after the shouts and noise were heard, Sahera

used the expression as 'wakhar opposite their house was

 359

burning'. Further, instead of saying that fire was set

to the wood that had been kept at the ground floor of

their building, she says 'the wood was burnt'.

C] When Sahera stated that she had come for telling the

truth in connection with the 'bakery case', she was asked

a question by the Court as to 'what was the bakery case

about?' The answer given by her is very interesting and

worth reproducing below.

'Regarding the damage caused; the wood was

burnt, other articles were burnt, vehicles

were burnt.'

Now, there is no dispute that in the incident of Best

Bakery, which the witness is referring to as 'bakery

case', several persons died, but Sahera has scrupulously

avoided saying this. She poses as if the whole case is

about the damage to the property and not about the loss

of several lives.

560. Interestingly, Sahera had admitted many more things

in the previous trial than in the present trial. Here,

she said that she did not know the names of any of the

workers working in the bakery and whether any relative of

her was working therein. When questioned, after being

declared as hostile, she denied having given names of any

servants in the Court at Vadodara. She also denied

 360

having given names of neighbours in the Court during the

first trial, when she was questioned in that regard in

view of her statement before this Court that she did not

know their names. She was confronted with the relevant

portions - i.e. portions marked 'JJJ', 'KKK' and 'MMM' -

appearing in her original deposition [X-36 for

identification] in the Court at Vadodara but in spite of

such confrontation, she denied having said so. The

denial of Sahera in that regard cannot be accepted,

firstly, because the record of the Court cannot be

lightly disbelieved and secondly, because the facts which

she denies as having stated before that Court, are such

that ordinarily, she was expected to know those facts.

Not to know the names of the persons working in their

bakery, or not to know the names of the neighbours, would

be rather extraordinary and cannot be believed.

561. The witness is so discrepant and inconsistent that

that she is telling lies, or at any rate not telling the

truth, is apparent. In fact, there are discrepancies on

every aspect about which she has spoken, or was made to

speak. A number of questions were put to her by

[Link] Rao, the learned Spl.P.P., to show that her

claim of not having made any grievance about the previous

trial, or for that matter, of not having said to the

police about the relevant incident at all, was false.

 361

Much examination of this witness was directed towards

establishing that her claims of not having sought any

retrial were false. These aspects are collateral aspects

and as such, I do not propose to discuss the evidence in

that regard in depth. What needs to be observed in

brief, as in the case of other hostile witnesses, is that

there is a reluctance to state about the incident itself,

and not merely regarding the involvement or

otherwise of the accused persons. There is an

express and clear desire not to let the details of

the incident made known, to project it as an incident in

which damage to the property was caused, rather than an

incident in which several lives were lost. Unfortunately

for this witness, and also for the other hostile

witnesses, they had taken several steps after the

previous trial had ended in acquittal, by approaching

various authorities and by making grievances at various

levels. Obviously, Sahera, as also the others, required

explanation of their actions when they made a claim

before this Court as if nothing had happened and out of a

blue moon, they are suddenly again called to give

evidence in this Court. The stories advanced by Sahera,

similar to the stories advanced by the other hostile

witnesses, are inherently improbable, weak and contrary

to reason. They are to be rejected forthwith.

 362

562. Sahera [P.W.35] has tried to avoid stating about the

injuries sustained by her brothers also supposedly while

they were on the terrace. Nafitulla and Nasibulla have

stated that both of them lost consciousness in the night

itself while they were on the terrace and at that time,

they had sustained injuries by the objects that were

thrown on the terrace by the rioters. Sahera however

does not know whether any of them had sustained any

injury. She has found out a convenient way of avoiding

any answer on several material aspects by saying that she

was frightened; and that she was 'bebhaan', or in some

cases, that she does not remember. There has been no

point in the lengthy examination of Sahera taken by the

learned Spl.P.P. because even after eliciting a clear and

unambiguous admission, Sahera would not hesitate to make

a drastically contrary statement thereafter. Apparently,

these witnesses, or those at whose instance they have

turned hostile, have realized that there would be no

point in saying that nothing had been done at all by them

by approaching any authority in the matter. They have,

therefore, found out a way of explaining their actions -

viz. that they were doing it for compensation. However,

all this is clearly false, in as much as, Sahera has

admitted that she knew about the case in the Vadodara

Court and of the acquittal of the accused. The words in

Hindi used by her in this regard are 'aaropiyon ko sazaa

 363

nahin hui”.

563. Sahera's statements were recorded during

investigation on 04/03/2002 and on 12/03/2002. The

versions in those statements, as are contrary to the

statements made by her in her deposition before this

Court, have been duly brought on record and they show

that Sahera had given information about Nasru whom she

claims, in her deposition, not to know. It is also

established that she stated before the police about

Kausarali having gone downstairs to persuade the members

of the mob; and that they did not listen to him, etc.

That she had stated before the police about the presence

of her 'Nani' at the time of the incident, whose presence

she denied during evidence, is also established. That

she stated before the police as to how the incident

happened, that she had seen certain persons known to her

in the mob; and that she had given the names of some of

such persons, is also satisfactorily proved. That the

persons in the mob dragged Kausarali and Lulla and threw

both of them in the burning wood, is also proved to have

been stated by her in her statement recorded on

04/03/2002 by PI Baria [P.W.72]. That the women were

being dragged towards the bushes by the rioters; and that

the police came at that time, is also established to have

been said by her to PI Baria. All these contradictions

 364

have been proved and exhibited as Ex.345 to Ex.354. Her

evidence is unworthy of any credit.

Saherunnisa [P.W.40]

564. The next hostile witness [Link] Habibulla

Shaikh [P.W.40], it may be recalled, is the mother of

Zahira [P.W.41]. During the investigation, her three

statements were recorded - first on 04/03/20002 [X-45 for

identification], second on 10/03/2002 [X-54 for

identification] and the third on 12/03/2002 [X-59 for

identification]. While the first two statements were

recorded by PI Baria [P.W.72], the third one was recorded

by PI Kanani [P.W.74].

565. A number of common features of the evidence of the

hostile witnesses have been discussed earlier and I do

not find it necessary to discuss the same aspects again

with respect to Saherunnisa's evidence also.

Saherunnisa, like other hostile witnesses, has proved to

be a liar of the highest degree. She also exhibits an

anxiety to suppress, or at least reduce, the severity of

the incident. She also is unwilling to speak about the

incident itself. It has taken a great deal of trouble

for [Link] Rao, the learned Spl.P.P., to get

elicited from this witness primary and undisputed facts

such as the riots having taken place, the rioters setting

 365

on fire the Best Bakery building and other buildings,

several persons dying in the fire, etc. She pretended

not to know how her house had caught fire. She refuses

to admit that the others, apart from Sabira, died because

of burns in her house and claims that they died in their

house which was adjacent to Saherunnisa's house - i.e.

Best Bakery building. She denies the presence of her

mother at the time of the incident. She, however, does

speak of rioters giving and shouting as 'jalao, maro,

kato', etc. Though Saherunnisa is hostile and determined

not to support the prosecution, she has disclosed certain

facts during her evidence which support the prosecution

case in certain respects. The signs of tutoring were

however very apparent. She exhibited hatred and bias for

[Link] Setalvad.

566. In spite of happening of such a serious communal

incident in which her house and bakery were burnt, the

witness volunteered to state during her evidence as 'we

would now carry on our business from there'. The learned

Spl.P.P. is right in contending, in my opinion, that this

showed that already there had been some sort of an

understanding between her and the persons at whose

instance she and other witnesses have turned hostile.

The learned Spl.P.P.'s contention that apparently, the

witness had received some assurance in that regard, is

 366

quite acceptable. That she was tutored and asked to say

all sorts of bad things about [Link] Setalvad and her

conduct with Zahira, is apparent. She has volunteered to

state in her deposition, suggesting that [Link]

Setalvad had kept Zahira in captivity; and that she

escaped from her place and came to Saherunnisa crying;

and that she had been badly treated by [Link]

Setalvad, etc. This is falsified by the evidence of

Zahira who has said about [Link] Setalvad having

looked after her well.

567. Saherunnisa's evidence also reveals several shocking

things about the role of 'Jan Adhikar Samiti' in the

matter, the nature of the financial assistance given by

them to Saherunnisa and others, the role played by

Advocate Atul Mistry and his conduct, which shall be

discussed later.

568. [Link], the learned Spl.P.P., had drawn my

attention to some part of the evidence of this witness

and contended that this has brought out the truth of the

matter. It is contended by [Link] that why the

witnesses were turning hostile and what were the facts

could easily be grasped if this evidence of Saherunnisa

[P.W.40] is studied. It is also pointed out by [Link]

that this particular evidence has not been challenged at

 367

all on behalf of the accused. I find great force in the

submissions of [Link] in this regard. The relevant

evidence therefore needs to be dealt with and discussed

in a somewhat detailed manner.

569. Saherunnisa, as is the feature of her evidence,

criticized one Mohammad Vora and stated about his having

forced to say what was tutored by him before a

representative of channel 'Aaj Tak'. Apparently, all

these witnesses have found no other way of explaining the

statements made by them previously of which electronic

record was available in visual and electronic form.

Since some of the 'tutored statements' were made by them

before they had met [Link] Setalvad, the original

zeal and enthusiasm for putting the entire blame of the

so called 'conspiracy' on [Link] Setalvad was given

up, but keeping that aside, what is important is what

Saherunnisa said on this topic. According to her,

Mohammad Vora started teaching her as to what was to be

said before the representative of the channel; and that

he made a gesture which she showed to the Court and which

was as indicative of 'cutting the neck'. Thereafter,

Saherunnisa volunteered to make a statement as follows.

'zabaan palte na, uske baare mein bol raha

tha'. [•¸•¸¸›¸ œ¸¥¸’½ ›¸¸, „¬¸ˆ½Å •¸¸£½ Ÿ¸½ •¸¸½¥¸ £-¸ ˜¸¸

] [page 1063 of Notes of Evidence].

 368

Saherunnisa then told him that she had no strength for

fighting.

'mere me ladne ki taaqat nahin hai, mere

koi aage peeche nahin hai, mereko case

mein matlab nahin hai.'

[page 1063 of Notes of Evidence].

Her grievance is that Mohammad Vora still insisted that

she would have to fight; and that she would have to fight

for the community. When she was questioned by [Link],

Saherunnissa has admitted that her family had changed

the testimony. She also very clearly admitted that she

was talking about 'changing the testimony' in the Court

at Vadodara. A question was asked, thereafter, to

Saherunnisa by the Court and it would be most appropriate

to reproduce the question and answer here.

Question by the Court :- That means you have

changed your testimony in the

Vadodara Court [“Matlab Vadodara

Court mein aapne apni zabaani palti

thi?].

Ans.- What else could be done ? “Mere

aage peechhe koi nahin tha. Mera

aadmi nahin tha, ladki nahin thi.

Jab kamaanewala nahin tha, to kya

case karen, kis par case karen?”

Saherunnisa, of course, did not accept the suggestion of

 369

the learned Spl.P.P. which followed this question and

answer, to the effect that she changed her testimony out

of 'fear'. However, she voluntarily addressed to the

Court as follows.

“Judgesahab, jab wahin rahena tha to dushmani

kya leni kisi se ?”

It was got verified by the learned Spl.P.P. as to with

whom she did not want enmity, to which a remarkable

answer, as follows, was given by Saherunnissa.

'I did not want enmity with anyone; neither

with 'Gujaratwalas' nor with 'Mumbaiwalas'.'

570. This is significant. It is clear that Saherunnisa

admits as 'zabaan palte'. Since she speaks about

'changing the testimony' in the Court at Vadodara, it can

only mean that earlier what was intended to be stated,

was changed. There is no doubt about the meaning of this

phrase 'zabaan palte'. This throws light on all the

relevant aspects of the matter. Not only that she

maintains that she did change the testimony, but also

gives a plausible explanation for the same which is

reflected in the question and answer reproduced above.

It is also significant, as reflected from the last answer

reproduced above, as to how the matter is perceived by

Saherunnissa. It is not perceived as an ordinary

criminal case where the State is interested in

 370

prosecuting and proving the guilt of the accused and the

accused are interested in showing that there is no

evidence to support the allegation levelled against them.

Saherunnisa views the case as a fight between two groups.

Obviously, she is referring to those who are interested

in showing that nothing had happened, that there was

nothing wrong with the previous trial; and that some

mischievous elements are making a false claim of an

unfair trial, improper investigation, witnesses being

threatened, etc., as one group and to those who are

interested in showing how unfair the trial was, how

insecure the minorities were, how the investigating

agency had been partial and had displayed partisan

attitude, etc, as the other. Saherunnisa also admits

that after the riots, she and her family members were

running 'here and there' out of fear; and that the fear

was caused on account of the riots that had taken place

and because what had happened during the riots.

571. In my opinion, this reflects the truth of the

matter. This throws light on the attitude of these

hostile witnesses. It nevertheless makes it clear that

they did initially complain about the incident; and that

there is no substance in their claim that they had not

made any complaint. It is clear that their claim that

whatever allegations were made by them, were so made on

 371

being tutored, etc., is false.

572. After the video cassette [Ex.283] was tendered in

evidence, Saherunnisa was recalled at the instance of

[Link] Rao, the learned Spl.P.P., for further

examination. After being confronted with the relevant

part of the video cassette [Ex.283], as contained in the

C.D. [Ex.283/3], Saherunnisa was most evasive but it

could no more be suppressed by her that the video

cassette [Ex.283] did relate to the shooting of the place

of offences, done on the next day morning when the police

came there.

573. Saherunnisa [P.W.40] had earlier stated that on the

next day and after the arrival of the police, she had got

down from the terrace by the cement staircase inside the

building. After having seen the relevant part of the

video cassette [Ex.283], she said that she got down from

the ladder which was behind; and that she and others were

made to get down from there. Undoubtedly, she does add

that the ladder had been brought by the police, which

cannot at all be accepted. The police had no reason to

falsely suppress the fact of having brought a ladder. In

any case, this is because viewing the relevant part of

the video cassette [Ex.283] made Saherunnisa realize that

when so much fire had been caught, it was not possible to

 372

come down by the cement staircase inside the building.

ZAHIRA SHAIKH [P.W.41]

574. The last and most important among the hostile

witnesses is Zahira Shaikh [P.W.41] - the first

informant. It is she, on the basis of whose grievances,

or at least supposed grievances, that the re-trial was

ordered. That Zahira should turn hostile again during

this retrial is indeed shocking, in as much as, Zahira

had given several press statements, had approached

various authorities, had filed a petition in the Supreme

Court of India, filed certain affidavits before the

statutory authorities after the incident and even after

the trial ended in acquittal, raising several grievances

against investigation and the machinery for

administration of justice. In spite of that, she did

show the courage of turning hostile. Naturally, she was

confronted with the records of her previous statements,

contrary to what she deposed before this Court and had

therefore to give certain explanations regarding having

made those statements, as shall be discussed at an

appropriate place.

575. Zahira [P.W.41], when caught in such an awkward

situation, initially attempted to deny having made the

previous conflicting and contradictory statements, but

 373

when confronted with some record of that and when it

would be thought of as impossible to deny having made

statements, attempted to attribute it to the tutoring and

threats given by [Link] Setalvad and others.

Unfortunately, even this has not helped always, as some

of the statements related to the period prior to Zahira

coming in contact with [Link] Setalvad. Zahira, in

such situations, had to find out different names of

different persons as the persons who had tutored her to

say those previous conflicting statements.

576. Though the evidential value of Zahira's evidence in

the matter of adjudication of the guilt or innocence of

the accused would be very limited in this case, her

evidence, nevertheless, is required to be discussed in

some depth. It is because the situation that has been

created by Zahira amounts to making a mockery of the

system of the administration of justice. It is my

opinion, after going through the entire evidence of

Zahira [P.W.41], Saherunnisa [P.W.40] and other hostile

witnesses that they have fallen in the hands of such

people who have made them speak lies, not only with

respect to the involvement or otherwise of the accused

persons, but with the object of indicating that there was

nothing wrong in previous trial; that they never thought

of making any prayer for retrial; and that the order of

 374

retrial had been falsely obtained by [Link] Setalvad

and her organization. Repeated and emphatic claims were

made by Shri Shirodkar, the learned Senior Advocate, that

the accused would prove that a blunder had been committed

by the Supreme Court of India, in ordering the retrial.

577. Before proceeding to discuss the evidence of Zahira

further, it may be noticed that in spite of such a

tremendous hostility, ultimately, Zahira has been made to

admit the happenings of the incident almost in the same

manner in which the prosecution has alleged it having

taken place. Barring the connection of the accused with

the alleged offences, Zahira has admitted almost every

part of the prosecution case.

578. Zahira, thus, does not dispute that there were 12

servants working in their bakery. She has also admitted

the knowledge of the names of some of them as Prakash,

Rajesh, Baliram, Taufel, Shehzad and Sailun. That Taufel

was the brother-in-law of her maternal uncle Kausarali,

has also been admitted by her. About their house being

adjacent to the Best Bakery; and that after it was

constructed she and her family started residing there, is

also not in dispute. Zahira also admits that the riots

took place on 01/03/2002; and that stone throwing and

bottle throwing was going on throughout the night.

 375

Zahira does state about the stones being thrown on the

terrace from all four sides, about the 'wakhar' in front

of their house being burnt, the wood kept in the

downstair portion in their house having caught fire, etc.

She also admits that she got down from the terrace in the

morning; and that it was after the police and fire-

brigade had come, who according to her, made her – and

others also - to get down.

579. It can at once be seen, that there is not much

distinction between Zahira's version of the incident and

of the supporting witnesses or the prosecution case as

revealed by the police report and accompanying

documents. The incident of riots did take place. Stone

throwing, bottle throwing, fire taking place, Best Bakery

building being set on fire, the inmates and victims of

the incident being rescued in the morning, indicative of

the fact that the riots went on till then and till the

arrival of the police, are facts which have not been – or

rather could not be - disputed by Zahira and even by

other hostile witnesses for that matter. What is

significant is that there is a methodical insistence to

stick to the version of the injured having been brought

down on the next day morning by the fire brigade. As

already observed, while discussing the evidence of other

witnesses there is a concerted effort, obviously as a

 376

result of tutoring, to hide or suppress the morning

incident.

580. According to Zahira, her brothers were injured in

the night itself, because of throwing of the bottles,

etc. and even the servants had been injured in the night

itself. This is consistent with the stand that all of

them came down from the terrace only after the police and

fire brigade came. Fortunately, no story of an attack by

some persons after the police had already arrived on the

scene and had rescued these persons is devised. The

injuries sustained by Nafitulla [P.W.31] and Nasibulla

[P.W.30] and the other injured witnesses however, can

not, at all, be accepted to have been caused by throwing

of bottles. That this is a lie, is already clear from

the earlier discussion and also from the evidence of the

supporting witnesses, but what should be emphasized in

this context, is the anxiety felt by the hostile

witnesses to avoid speaking anything about the morning

incident. This is remarkable, in as much as, it is a

clear indication of they having been tutored in that

regard. The persons tutoring them are obviously those at

whose instance they have turned hostile. The difficulty

that would be created for the accused, if the morning

incident were to be admitted, has been rightly realized

by those persons. The factors creating the alleged

 377

impossibility or difficulty in observing – viz. smoke,

darkness, distance, etc. - could not be brought in aid

for the morning incident when the assailants and victims

had faced each other.

581. Like other hostile witnesses from her family, Zahira

has also volunteered to make a statement that it was dark

and there was smoke; and that it was not possible to see

who were throwing stones and soda water bottles. The

volunteering of this statement shows an anxiety to

introduce this aspect, rather than waiting for being

questioned as to the reasons for not knowing who were the

offenders.

582. It is indeed a sad commentary on human nature, that

Zahira even does not wish to admit clearly that Sabira

had died in the riots and due to the fire, that was set

to the Best Bakery building. Zahira stated about Sabira

being in one of the rooms on the first floor and when

questioned as to what had happened to her, stated that

she did not know what had happened to her. Zahira claims

to have learnt only in the hospital that Sabira had died.

Like other hostile witnesses Zahira also uses very mild

expressions as 'due to heat' and 'as there was smoke' as

the reasons for the death of Sabira, instead of saying

that she died due to the burn injuries suffered on

 378

account of the fire. Again, while describing the

condition of the dead body of Sabira, Zahira said that

her face 'had become dark because of the smoke'. It is

remarkable that the use of the word 'fire' or 'burn' is

very methodically avoided by this witness, obviously in

an anxiety and in the false hope to make things appear

less gruesome. There is no conceivable reason,

otherwise, for not using expressions such as 'fire',

'burns', 'burnt' etc., when speaking of a person who had

died due to fire and burn injuries and using the

expression 'smoke', instead, frequently.

583. The most shocking aspect of the matter is that

Zahira refuses having lodged the F.I.R. itself. To the

question whether police made inquiries with her at any

time, Zahira replied that when she was in the hospital,

after two days a policeman had come; and that he took her

signature on a paper and went away. Looking to the

question and the manner in which the above answer came,

it becomes clear that Zahira had been tutored, or was at

least aware, that she would have to pass through the

hurdle of the F.I.R. signed by her, being in existence.

584. According to Zahira, after coming down from the

terrace she was immediately taken to the hospital; and

that she did not wait on the spot after getting down for
 379

any time; and that no inquiries were made with her, at

any time. This is obviously false, in view of the record

contained in the cassette [Ex.283]. An interesting aspect

can be noticed properly by first reproducing the

following question and answer from Zahira's evidence.

'Que.- That, that was your bakery, that it

was burnt, your name, your father's

name, etc. - when this information

was given to the police by you ?

Ans. - When I went to the hospital,

after 2-3 days, a policeman had

come and he took my signature on the

paper brought by him.' [Page 1141

of Notes of Evidence].

585. This is remarkable. This shows that not only Zahira

is aware of there being an F.I.R containing her

signature, but is also aware of what it contains. There

was no reference in the question to any statement and

there was no occasion to connect the question of

information given by Zahira to the incident of a

policeman taking her signature on a paper, unless Zahira

would know that in that particular paper, the information

referred to in the question was available.

586. Zahira admits that the F.I.R. [Ex.136] is the

 380

document on which her signature was obtained by the

policeman in the hospital; and that her signature had

been obtained by a policeman only on one paper. The

question and answer reproduced above clearly indicates

that Zahira does know what is written in the document

[Ex.136].

587. Curiously, the record of the deposition of Zahira as

given by her during the previous trial does show that

Zahira did state before that Court, that she had talked

to the police about the incident. Zahira was confronted

with the portion [Ex.137 and Ex.137/A] in her original

deposition [X-60 for identification] before that Court

which reads as 'I had talked to the police about this

incident' and the 'police had obtained my signature on my

statement', but still denied having made the statement.

Zahira was also confronted with the other portion

[Ex.137/B] in her original deposition, which shows that

Zahira admitted in that Court that the F.I.R. bore her

signature; and that it was recorded in Sayaji Hospital,

but Zahira denied even having said so. This denial can

not, at all, be accepted. There is nothing to show that

this particular record of the Court is not accurate. The

facts stated in those portions are natural and probable

and the denial of the fact that she lodged F.I.R., is,

what is actually unbelievable and unnatural.

 381

588. Why Zahira is hostile to such an extent and what are

the reasons for her making statements which are obviously

false and which one is ordinarily expected to realize, as

would not be believed, is a matter difficult to

understand and requires deep probe. Though ultimately

Zahira does not dispute the incident, it has taken a

great deal of efforts to get the facts from her. By way

of illustration, the following may be taken into

consideration.

589. Zahira was not willing to admit that after the

rioters had assembled around the Best Bakery building,

there was danger in coming outside their house. Zahira

was questioned as to why, when the house was burnt, she

and others did not try to go out and why she did not try

to escape from the rear side of their house. To avoid

admitting the fact that it was not possible to escape as

the bakery had been surrounded by a mob of rioters who

were violent, Zahira gives the reason as 'her mother was

observing iddat and therefore, they did not try to escape

therefrom'. Again, she said that 'since it was the time

of ishaan namaaz, they did not try to go out of the

house'. When made to admit that the time of ishaan

Namaaz was 10.00 p.m., Zahira gave the reason of not

going out of the house as 'because curfew had been

 382

ordered'. Thereafter, when specifically questioned

whether it was on account of the curfew that they did not

try to go out of the house, Zahira answered as follows,

'How could we go ? Stones were being thrown,

bottles were being thrown.'

It is after long and persistent questioning, Zahira

ultimately admitted as follows,

'It is correct that we did not try to go out

of our house and save ourselves because there

was danger outside.'

The evidence preceding that [from page 1160 onwards in

the notes of evidence] shows the attitude of the witness.

It is not that the witness only wants to refuse to say

anything about the connection of the accused with the

alleged offences. Whether the accused are the culprits

or offenders or not and what Zahira says in that regard

would be a different matter, but even after admitting

that riots had taken place and also admitting in what

manner they had taken place and how serious the incident

was, she is not ready to say that there was a danger to

their lives. This makes it clear that the interests of

those at whose instance she is speaking lies, are totally

different and much larger than merely protecting the

accused. This, as contended by the learned Spl.P.P,

might be a sign of the pressure that is in the mind of

the witness, apart from the possibility which clearly

 383

exists that she has secured monetary benefit from the

interested persons to depose in the manner in which she

has. It is further remarkable that even after admitting

that there was danger outside, to the very next question

as to 'from whom was the danger', Zahira was not ready to

say that it was from the rioters. The Court note in that

regard [on page 1164 of the notes of evidence] records

that Zahira gave irrelevant answers to the effect that

throwing of stones and bottles was going on, curfew was

there and after much time was spent, Zahira stated that

she did not know from whom the danger was. Obviously,

the idea is again to emphasize that she did not know who

were the rioters, but this is rather unusual. At that

stage, nobody expected her to say who were the rioters

and a person who would not be determined to tell lies at

all costs and to shake the basic version of the

prosecution case on the basis of his or her own

statements only, would have certainly said that the

danger was from the rioters. In fact, the previous

answer given by her does say so; and that outside there

was danger, had been said by Zahira with respect to the

rioting going on outside only, but still, she is not

ready to utter the simple words that 'there was danger

from rioters'. That she does not know the rioters is

eagerly and before waiting for that subject to be

touched, said by her. Anyway, Zahira did admit, after

 384

persistent questioning, that it is due to the fact that

the riots were going on outside, she and her family did

not come outside her house for saving their lives. In

spite of her refusing to clearly admit that there was

danger to their lives from the rioters, or at least they

felt so, this is clearly established because, that though

there was danger to their lives by remaining in the

house, still they did not come out of the house. The

only conclusion therefrom is that the danger that was -

or was so perceived by them - outside, was more than the

danger in remaining inside the house. Even thereafter,

Zahira was not ready to admit the simple undisputed and

already spoken fact by her that because of the riots,

they were in danger till the police arrived in the

morning. The questions and answers in that regard are

worth reproducing to give a correct idea of the attitude

of this witness.

'Ques- Because of the riots, you were in

danger till the police arrived in

the morning ?

Ans.- At that time, we were frightened and

were therefore unable to understand

anything.

[Court Note :- The question is again

repeated].

Ans.- That time, we were injured also, we

 385

were frightened also and that is

why, throughout the night, we were

on the terrace only.

Ques.- You and your family were in danger

throughout the night and till the

police arrived in the morning ?

Ans. - We were so much frightened that we

did not understand anything.

Ques.- Whether the reason for your

being so much frightened was that

you felt danger to you and your

family ?

Ans.- At that time, even the servants were

injured and also my brothers were

injured and therefore, we were

unable to understand.' [Page 1166 of

Notes of Evidence].

The object of reproducing this is to highlight how

serious the matter is from the point of view of

administration of justice. The witness, it seems, is

determined to make a mockery of the whole system of

administration of justice.

590. As to why Zahira and the others went to Vadodara

from Mumbai after the retrial had started, Zahira has

given the reason that 'gundas' started coming to their

 386

house and threatening them that they would have to give

evidence as the 'gundas' would say; and that they would

have to do as the 'gundas' would tell. According to

Zahira, she and others refused by telling that they would

tell the truth. The 'gundas' then said that they would

shoot them dead. Thereafter, Zahira and others decided

to go to Vadodara. This story was revealed when the

question, as to when the decision to go to Vadodara was

taken, was asked. This story did not provide an answer

to what was asked - viz. 'when'. The question was

repeated and the opportunity to speak further and give

the names of certain persons as 'gundas' - i.e. Raees

Khan, Mohammad Vora - was seized by Zahira. Zahira

mentioned about [Link] Setalvad also coming to their

house and telling them that they would have to do as she

would say. It is obvious that this all is a tutored

version of the original stand of the persons who had

tutored Zahira and other hostile witnesses. Obviously,

this tutoring was thought by them as necessary to

explain the happenings leading up to the retrial.

Considering the background in which the retrial came to

be ordered, considering the various statements made by

Zahira and others- not only before media but before

statutory authorities as well - before and after the

first trial, turning hostile and disowning everything

that had transpired before the retrial, was not easy.

 387

The only story could be of being abducted to Mumbai, kept

in confinement, tutored and threatened and then when the

retrial was about to start, ultimately escaping from the

clutches, going to Vadodara, feeling secured thereafter

and telling the truth. As discussed at various places

and as shall be dealt with more specifically later, this

story cannot be accepted at all. It is so incredible, so

improper, so contrary to reason and logic that it must

have taken a great deal of courage to put forth such an

improbable story. What is further surprising is the

estimate of Zahira and those who tutored her, about the

degree of credulity that the Court may possess.

591. A tendency on the part of Zahira not to give

straight answers to the questions put by the learned

Spl.P.P., to introduce certain matters which apparently

were already decided as to be said, was noticed and

therefore she was allowed to narrate her version. Zahira

then narrated all the events from the riots till she,

along with others, went to Vadodara after the retrial had

started, contacted Advocate Atul Mistry and demanded help

from 'Jan Adhikar Samiti'. This narration [from page

nos.1170 to 1178 of Notes of Evidence] is what Zahira's

initial version before this Court is. [Link] Rao,

the learned Spl.P.P., has immediately, after the said

narration was recorded, got it confirmed from Zahira that

 388

it has been accurately recorded. It is with reference to

this story that the various different stands taken by

Zahira are to be examined. It would be therefore

appropriate to reproduce the entire narration here.

'Question by the Court:- Tell us what

happened since 01/03/2002 and from

the time you were on terrace and

when the stone throwing, bottle

throwing, shouting, etc., was going

on ?

Ans. - When the riots took place in the

year 2002, we were in our house. At

about 8.00 p.m. to 8.30 p.m., Lal

Mohammad's 'Wakhar' was burnt.

Thereafter, the wood which was kept

downstairs in our house, caught

fire. Then somebody said that fire

had caught and so we went to the

terrace. Then, bottles, stones,

etc., were being thrown in the night

on the terrace and there was fire

and smoke and there was no light

also. There was noise of shouting

and of beating of 'thalis'. On

account of the stone throwing and

 389

bottle throwing, our servants and my

brothers were injured. We were very

much frightened. We were sitting on

one side of the terrace in the hope

that if we would get the help of

police, in the morning, then we

would be able to escape. In the

morning, police came. The ambulance

and fire-brigade also came there.

The police and fire-brigade made us

get down. They took us to the

hospital. 2-3 days after we had

gone to the hospital, one policeman

came and took my signature. I was

shown the dead bodies of Sabira and

our servants in the hospital. After

all this happened, my evidence was

recorded in the Court at Vadodara.

There, I took the oath in the name

of almighty and spoke the truth.

Thereafter, the verdict was given by

the Court and I went to my native

place. When I came back to

Vadodara, within 2-3 days, Mohammad

Vora, Arif Malik and Munna Malik

came to our house and forcibly took

 390

us – i.e. I and Nafitulla – to

Mumbai. Teesta Madam then explained

that she will see that we are

compensated for the loss caused to

us and that she would restore our

bakery and house and that we would

have to do as she would say. After

about 5 to 6 days, those persons got

a press conference held [“press

conference karaya tha woh logo ne”].

Then she kept me with her for one

month. Then I was kept with Ishag.

There, my sister – Sahera – and her

husband came to meet me.

Thereafter, they had given address

to me and had left. They did not

talk much. She only asked whether I

wanted to come home, when I said

that I was unable to come home.

Thereafter, papers, blank papers,

stamp papers, computer papers were

being brought to me [Expression

used is, 'mere paas late the']. I

was told that the bakery was to be

transferred in the name of my

mother. My signatures on several

 391

papers were obtained. They used to

politely tell us that they were

doing so much for us. This way,

four months passed. I then asked

Teesta Madam, “Aunty, why are you

taking my signatures on so many

papers ?”. She said, 'Jo korat mein

dala tha paper, uski arji nahin hui,

ab doosra dalna padega'. Then I

said, I would not make any more

signatures. When I was residing

with Ishag, Teesta Madam had taken

me to Delhi. After I had refused to

make more signatures, Teesta and

Raees Khan started pressurizing me

saying that I would have to make

more signatures. They made several

attempts to pressurize me. Then I

came to my mother's house. There

also, Raees Khan came and troubled

us. He said that I would have to do

everything for the community.

Before 'Dasara' and after 'Dasara',

Raees Khan and Teesta came to our

house. They started quarreling with

my mother. They were saying,

 392

“Zahira ko humko deo. Hum usse

Court mein jhoothi zabaani dilwana

chahate hain”. We refused saying

that we will not do any such false

thing. Thereafter my brother –

Nasibulla – was returning from his

place of work when 'gundas' of Raees

Khan caught hold of him and put him

forcibly in a vehicle. One person

who was there, came to my mother and

told her that her son was being put

in a vehicle, by force. My mother

then went to that spot. When those

persons were making my brother sit

in the vehicle, by force, my mother

reached there. At that place, some

'Magajmari' took place. Raees Khan

gave a push to my mother, started

the vehicle and went away.

Question by the Court :- And you kept

observing?

Ans. - No. I was in the house. Then my

mother went to lodge the complaint

['fariyad'] at the police station.

However, Raees Khan reached there

also.
 393

Question by the Court :- You said that Raees

Khan had left. Did he still reach

the police station?

Ans. - My mother had gone to the police

station for lodging the complaint on

the next day. The police did not

record any complaint and therefore,

we were forced to go to Vadodara.

We went to Vadodara by a car.

There also, Mohammad Vora and others

were searching for us. I and

Nafitulla met 'Vakeelsaab'. It was

in the Court. The name of that

'Vakeelsaab' is Atul Mistry. We

narrated the things to him. He

wrote it down and prepared an

affidavit. I then demanded help

from 'Jan Adhikari'. This is what I

have to say.'

The salient features of the initial version of

Zahira before this Court are as follows.

a) That the riots indeed took place. Their

building and some other premises had caught

fire. Rioters were throwing stones and bottles

due to which her brother and the servants were

 394

injured.

b) In the morning, police, ambulance and fire-

brigade came and made Zahira and others get down

and took them to the hospital.

c) Two to three days after going to the hospital,

one policeman came and took her signature.

d) Zahira was shown dead bodies of Sabira and their

servants in the hospital.

e) Her evidence was recorded in the Court of

Vadodara which she gave on oath and spoke the

truth.

f) After the verdict was given by the Court, she

went to her native place.

g) When she came back, Mohammad Vora, Arif Malik

and Munna Malik came to her house and forcibly

took Zahira and Nafitulla to Mumbai.

h) At Mumbai, Zahira met Teesta Madam who explained

that she would see to it that Zahira and her

family were compensated for the loss caused to

them, that she would restore their bakery and

house; and that they would have to do as she

would say.

i) [Link] Setalvad held a press conference

thereafter and kept Zahira initially with her

for a month and then with one Ishaq, her

relative.
 395

j) Papers, blank papers, stamp papers, computer

papers were being brought to Zahira. Zahira was

told that the bakery was to be transferred in

the name of her mother and her signatures on

several papers were obtained. This way, four

months passed.

k) At one point thereafter, Zahira asked Teesta

Madam why her signatures were being taken on so

many papers. [Link] Setalvad gave an answer

suggesting that they were required for some

proceeding in the Court. Zahira refused to make

any more signatures.

l) Earlier, Zahira had been taken to Delhi by

[Link] Setalvad.

m) After Zahira's refusal to make more signatures,

[Link] Setalvad and Raees Khan started

pressurizing her.

n) Zahira then came to her mother's house, but

there also Raees Khan came and troubled Zahira

and others.

o) Raees Khan said that Zahira would have to do

everything for the community.

p) A few days before Zahira went to Vadodara,

[Link] Setalvad and Raees Khan came to

Zahira's mother's house and quarreled with her

mother. They wanted to have Zahira with them

 396

for making her give false evidence in the Court.

q) Zahira and others refused to do such a false

thing.

r) Thereafter, Nasibulla was caught by the 'gundas'

of Raees Khan and was being forcibly taken

somewhere in a vehicle.

s) Zahira's mother rescued Nasibulla but when she

went to lodge a 'fariyad' at the police station,

Raees Khan reached there also. The police did

not record any complaint and therefore Zahira

and others were forced to go to Vadodara.

t) Even after they went to Vadodara, Mohammad Vora

and others were searching for them.

u) Zahira and Nafitulla met 'Vakilsaab' Atul Mistry

in the Court and narrated the things to him.

Advocate Atul Mistry wrote it down and prepared

an affidavit.

v) Zahira then demanded help from 'Jan Adhikar

Samiti' [which is frequently referred to by the

hostile witnesses as 'Jan Adhikari' and stated

to be a person by name Tushar Vyas].

592. The story would be put to test during the discussion

on Zahira's evidence, but what is significant and must be

noted at this stage is that as per this version, which is

the basic version sought to be advanced by Zahira, she

 397

never made any statements about this case or did not make

mention to anybody about this case either before or after

the previous trial. At the most, the suggestion is that

after the previous trial, some written complaints

purporting to be of Zahira, might have been made by

[Link] Setalvad on the basis of Zahira's signatures

obtained by her on various papers. This is to be kept in

mind because the later examination of Zahira reveals that

almost everything that led to the retrial was stated by

Zahira to various authorities and on various occasions

and this included even the names of the accused persons

in this case and it is after she was forced to admit

having made the statements, a theory of she having made

the statements as tutored, has been advanced. In this

original narration, there is no mention of her being made

to say certain things. Apart from there being no express

mention, the story is consistent enough to indicate the

absence of any such mentioning on the part of Zahira.

From this, Zahira appears to be a very truthful person

and the moment she suspects some foul play, she refused

to make signatures and the moment she was told that she

will have to speak lies, she refused and escaped from

that place and went to Vadodara. Interestingly, even

when forced to admit having made some statements

concerning this case contrary to what she is now telling

to the Court, the initial attempt was to attribute those

 398

statements to the tutoring of [Link] Setalvad only.

However, when caught in a situation where the period of

having made those statements was indicated as prior to

Zahira's meeting [Link] Setalvad, the tutoring came

to be attributed to various others - i.e. local people

from Vadodara. Why this has been dealt with in depth by

reproducing the entire version, is because it is

necessary to expose the conspiracy behind advancing such

version and by highlighting improbabilities contained

therein. This is necessary to be done because this is an

attempt to show that retrial has been wrongly ordered and

in fact, such arguments were advanced on behalf of the

accused.

593. Shri Adhik Shirodkar, the learned Senior Advocate,

repeatedly contended that Zahira is telling the truth;

and that it would be revealed to the Court at the end of

the trial, that it was 'blunder' to order a retrial.

Much was spoken about the conspiracy behind getting a

retrial ordered, but after going through the entire

evidence and considering all the relevant matters, it

appears to me that there was, perhaps a conspiracy to

make a fiasco of the retrial, by whatsoever means.

594. Zahira went to the extent of denying that she lodged

the F.I.R. This is clearly falsified by the evidence of

 399

PI Baria [P.W.72]. First of all, that the F.I.R. bears

the signature of Zahira is not in dispute at all. There

are various entries in the station house diary showing

that the F.I.R. was lodged at 1515 hours on 02/03/2002;

and that it was lodged by Zahira. The time of making

these entries could not be manipulated beyond a

particular limit. Moreover, PI Baria had no conceivable

reason to make a false claim of Zahira having lodged the

F.I.R. Apart from this, there is a clear indication that

Zahira's denial in that regard is false by what has been

got elicited from her by [Link] Rao, the learned

Spl.P.P.

595. Zahira was questioned about burning of four vehicles

belonging to them in the riots and she claimed that she

had learnt about it from her brother later. [Link]

asked her whether that the vehicles were burnt was told

by her to anyone, when Zahira stated that she had told it

in the fariyad to the police. However, immediately

realizing that she is not to admit having lodged the

F.I.R., Zahira hesitated and continued the answer to the

effect that they had asked and it was told; and that

whatever was asked, was told. The word 'fariyad' was

used by Zahira only [and not by the Spl.P.P.] while

replying that the burning of the vehicles was told to the

police. Zahira certainly knows what is the fariyad

 400

because in connection with the incident allegedly taken

place between Raees Khan and Nasibulla, Zahira speaks of

her mother going to Mira Road Police Station for lodging

the report [“fariyad likhane ke liye”] [page 1181 of the

notes of evidence]. Thus, not only Zahira does know what

is 'fariyad', but it is also clear that PI Baria's

evidence that she had lodged it, is true.

596. PI Baria's evidence clearly shows that copy of the

F.I.R. was also given to Zahira and her acknowledge in

that regard was obtained.

597. Zahira admits that she knows what was the result of

the case in the Vadodara Court and what was the decision

of that Court. It is remarkable that when asked as to

what was the decision which she claimed to have heard

from somebody, she states that she heard about the

decision as 'whatever was true had happened'. She is

however unable to explain what was the so called truth.

This indicates that she merely saying something that is

tutored. She claimed that she did not know, till the

date she was giving evidence, as to what had happened to

the case after it was over in the Court at Vadodara; and

that she did not know why case is now being tried in

Mumbai. Thus, what she wants to claim is total

unawareness of the grievances about the previous trial,

 401

the proceedings before the Gujarat High Court and the

Supreme Court and the order for retrial made by the

Supreme Court. However, this stand which is consistent

with what was the original tutoring to Zahira does not

stand to scrutiny. Zahira was forced to admit, as a

result of further questioning, that she knew what was

going on; and that she had made certain statements,

though on being tutored by [Link] Setalvad and

others. Thus, expressing total ignorance as to what had

happened in the Court at Vadodara and thereafter leading

to the present retrial is absolutely false.

598. Document marked [X-51 for identification] was

produced by the prosecution through [Link] Setalvad.

This document purports to be a letter written by Zahira

in her own handwriting. Zahira when confronted with this

document denied it to be written by her. She denied that

it was in her handwriting. However, she did admit

signature thereon, as her. Zahira tried to explain this

by saying that her signatures were obtained on several

blank papers. I am not inclined to believe Zahira on

this at all. Ordinarily, when a person admits his

signature on a document it would be rather difficult for

him or her to dispute the authorship or the contents

thereof. The document has been produced by [Link]

Setavad to whom it purports to have been addressed.

 402

Now, when the signature is admitted by Zahira and the

document is produced by [Link] Setalvad there are

only two reasonable possibilities in that regard. The

first is that the letter is indeed written by Zahira and

the other is that it is forged by [Link] Setalvad. I

have considered this aspect. Zahira was made to write

certain matter while in the witness box itself in

accordance with the provisions of Section 73 of the

Evidence Act, in order to enable the Court to compare her

handwriting with the handwriting of the document [X-51

for identification]. These writings obtained from Zahira

under section 73 have been marked as Ex.140, Ex.141 and

Ex.142. Upon a careful consideration of all the

handwriting in Ex.140, Ex.141 and Ex.142, with the

handwritings in X-51, together with the fact that the

signature thereon is admitted to have been made by

Zahira, I have no doubt whatsoever that the letter [X-51

for identification] has been written by Zahira only.

Though, ordinarily, a Court would not undertake upon

itself to get decided the authorship of a disputed

handwriting and would ordinarily depend on opinion of

experts on it, nothing prevents the Court from forming

any opinion on its own in that regard.

599. The observations made by the Supreme Court of India

in Murarilal Versus State of M.P. AIR 1980 Supreme Court

 403

531, leave no manner of doubt, in respect of this

position. The Supreme Court observed that:

“The argument that the Court should not

venture to compare writings itself, as it

would thereby assume to itself the role of an

expert is entirely without force. Section 73

of the Evidence Act expressly enables the

Court to compare disputed writings with

admitted or proved writings to ascertain

whether a writing is that of the person by

whom it purports to have been written. If it

is hazardous to do so, as sometimes said, we

are afraid it is one of the hazards to which

judge and litigant must expose themselves

whenever it becomes necessary.” [para.12]

[Emphasis supplied].

600. The Supreme Court of India, went on to observe that

it becomes the plain duty of the Court to compare the

writings and come to its own conclusion whether or not

experts have been called and examined. It was observed

as follows :

“The duty cannot be avoided by recourse to

the statement that the Court is no expert”.

[Para.12]
 404

601. Further, here the opinion is not being based only on

the comparison of handwriting, but upon considering the

entire facts including the one that the signature on the

letter is admittedly of Zahira.

602. Moreover, the other possibility would only be the

possibility of forgery having been committed by

[Link] Setalvad [or somebody on her behalf] after

obtaining signature of Zahira on a blank paper. Now,

every forgery has some motive. It is done with some

object. In order to ascertain the authorship of the

document, contents thereof can certainly be looked into,

though not as evidence of the facts stated therein or as

to the truth of the contents. Thus, the document [X-51

for identification] only speaks of Zahira's intention to

fight her case from the beginning and explaining how

she had changed her statement in the Court due to

threats. Now if [Link] Setalvad wanted to forge a

letter by taking advantage of the signature of Zahira on

a blank paper, she could have written much more damaging

matter in this letter. It may be recalled that the

motive attributed to [Link] Setalvad is to malign the

Government of Gujarat for ulterior motives. It is not

alleged that she has any personal enmity or ill-will

against the accused. What is alleged is that she wanted

to show that the previous trial was tainted, that it was

 405

designed to ensure the acquittal of the accused, that the

investigation had been faulty, that the State did not

take any interest in punishing the culprits and protect

the minority. If at all forgery was to be committed, in

the circumstances, many more damaging things could have

been written, instead of a plain letter merely expressing

desire to fight the matter all over again and attributing

the previous testimony to the threats.

603. In the circumstances, I have no manner of doubt that

the document [X-51 for identification] has been written

by Zahira only and her denial in that regard is false.

604. Zahira has admitted that while she was residing at

the house of Iqbal Ansari [P.W.39] after the incident and

thereafter at Madar Mohalla reporters and persons used to

talk to her and make inquiries with her. However, when

questioned further as to in what connection they used to

come to her and talk to her and take her photographs,

etc., Zahira realizes that if she would give the answer

as 'regarding the Best Bakery incident', then some

previous statements were, in fact, made by her on the

subject, might be established; and therefore answers as

'whether she had received compensation'.

605. There is much to be discussed about Zahira's

 406

evidence if that what she speaks are total lies, is to be

emphasized. Almost everything that she states is

contradictory, inconsistent and incredible. It is easy

to understand that this is happening because the story

which she wants to advance and which she narrated as

referred to earlier is itself absurd and improbable. To

resile from the statements, after going much ahead and to

explain the allegations and assertions made before

various competent and statutory authorities, before the

media, would indeed be a difficult task; and in an

attempt to do so by reason of fear felt or on account of

having been offered monetary inducement, or by both, it

is no wonder that Zahira's evidence has rendered itself

visibly unreliable and false. I shall therefore deal

only with certain aspects of the matter which are more

relevant from the point of view of the present trial

instead of touching numerous other examples of the

falsehoods and lies, which she has resorted to.

606. Zahira has admitted that she had been before the

Manav Adhikar Ayog when she was residing in the house of

Iqbal Ansari i.e. immediately after the incident and

within a period of one month thereafter. She states that

she was taken there by Mohammad Vora and Munna Malik and

was tutored to say certain things which she did. This she

states was done by her on 2-3 occasions. She wants to

 407

suppress the fact that she had made a grievance before

Manav Adhikar Ayog and therefore states that she does not

remember what she told but that whatever was told was as

was tutored to her. It may be incidentally be observed

that this any way demolishes the theory of Zahira being

tutored by [Link] Setalvad, as admittedly, [Link]

Setalvad was not in picture at all before the previous

trial had ended.

607. When an attempt was being made to confront Zahira

with certain document purporting to contain a record of

statement previously made by her, all sorts of objections

were raised by the Advocates for the accused, which

objections were without any substance.

608. As discussed earlier, the persons at whose instance

Zahira and others from her family had turned hostile,

obviously appear to have a desire to attribute all the

allegations made by Zahira about the improper conduct of

the previous trial, regarding her demand for retrial,

etc., to the fraud played upon her by [Link]

Setalvad. The narration of Zahira reproduced earlier

indicates what was the initial attempt – as if Zahira

knows nothing. This has not succeeded as discussed

aforesaid, in as much as, there is ample evidence on

record - even of Zahira herself - that she did, in fact,

 408

make certain statements and that was before she had met

[Link] Setalvad. It is after realizing that she

could not implicate [Link] Setalvad in the matter of

having made those supposedly false statements, that

Zahira started saying about the tutoring and pressurizing

by Mohammad Vora, Munna Malik and Arif Malik, etc., from

Vadodara.

609. Thus, the initial theory was that Zahira had not

made any statements at all. Then the theory – when

having made statements could no more be denied - was

changed to the effect that statements were made, but on

being tutored or pressurized by [Link] Setalvad.

Thereafter, the theory is further changed - because of

the realization that at that point of time, [Link]

Setalvad could not be brought into picture - and the

tutoring is attributed to the persons from her community.

The theory of pressure by [Link] Setalvad which was

thought to be a solution to all the questions that would

crop up in any reasonable mind, after Zahira would turn

hostile again in the retrial, has, any way, miserably

failed. This needs to be further highlighted by pointing

out from Zahira's evidence itself that the claim of

[Link] Setalvad having abducted Zahira, being kept

her in confinement etc., is false. Zahira was questioned

as to how were her and her family's relations with

 409

[Link] Setalvad when she was residing at Yari Road,

and Zahira Said that at that time her relations and also

of her mother, her brothers and her sister with

[Link] Setalvad and her children were good. Zahira

has admitted that [Link] Setalvad used to treat her

very well and behave very well with her. Zahira has

categorically stated that she used to maintain and look

after Zahira properly, though has added that [Link]

Setalvad might be getting help. But there has been no

denial of the fact that Zahira was being looked after

properly by [Link] Setalvad, [in the words of Zahira,

'achhe se rakhti thi'] [Pages 1278-1279 of the Notes of

Evidence]. This has been repeated by her during her

evidence. [pages 1508-1509 of the Notes of Evidence]

610. It is contended by [Link] Rao, the learned

Spl.P.P., that Zahira has claimed as having approached

Advocate Atul Mistry for help, because of the threats

that were being given to her, but she has not been able

to give any proper answer for not going to Gujarat Police

before that. How ridiculous and how shameless the

attempt to avoid a precise answer to the simple question

was, can be best explained by reproducing the question

and answer in that regard.

'Que.- Can you tell why you did not go to

the Gujarat Police for

 410

help/assistance ?

Ans.- Because Mohammad Vora, Munna Malik

and Arif Malik were giving threats

to us.

[Court Note :- Question is repeated after explaining

what the question is].

Ans.- I had given an application to the

Collector and further things were to

be decided by the Collector.

Ques.- That is after meeting Advocate Atul

Mistry. The question is why did you

not go to Gujarat Police before

meeting Advocate Atul Mistry ?

Ans.- Because we were hiding ourselves.

[Court Note :-Question is repeated again].

Ans. - Because we were hiding ourselves.

Raees Khan, Mohammad Vora were

searching for us.'

It is only thereafter, and when the question was again

repeated Zahira said that she thought it necessary to

take the opinion of an Advocate. However, she had to

admit that even after taking the opinion of the Advocate

she did not lodge any complaint at any police station.

[Link] is certainly right in contending that this shows

that Zahira was unable to explain her conduct. However,

what is significant, in my opinion, is quite different.

 411

A more pertinent aspect of the matter is why did she not

go to the police, or to any Advocate, earlier - i.e. when

the first trial was to be held. It is because according

to Zahira, persons from her community were pressurizing

and threatening her at that time. The question is how

and why she did not bother about the threats from the

people at that time? Would the Gujarat Police have not

given her protection from the threats that were being

given by Mohammed Vora, Arif Malik and Munna Malik to

tell lies in the Court? Why Zahira did not consult any

Advocate at that time even assuming that she did not want

to go to police for some reasons at that time is not

capable of being explained. Moreover, interestingly, she

did not pay any heed to the threats and was not scared of

the same persons at that time. She proceeded to speak

'the truth' during the first trial without bothering

about the threats by the persons from her community.

Thus, by pressure, she used to make the 'tutored

statements' before media, various authorities, etc.; but

when the trial took place, the pressure disappeared.

She spoke the truth. When the trial was over, again

pressure mounted to speak the lies. She succumbed to

that but when the retrial started, again the pressure

disappeared. Thus, the pressure works on all occasions,

except when the stage of trial comes. This may be left

at that only, without making any further comments.

 412

611. The witness having earlier admitted, [on Page 1166

of the Notes of Evidence] that when the police came in

the morning [of 02/03/2002] she felt that the danger was

no more there ['khatra tal gaya'], she was asked by

[Link], the Special Public Prosecutor, as to why she

felt so when Zahira said that the danger was no more

there as the police came. However, when attempted to get

from Zahira that 'had the police not come there at that

time, there was danger to the lives of her family

members', Zahira denied that there was any danger to

their lives in the morning.

612. [Link] contended during the course of arguments

that the collusion between the hostile witnesses and the

accused was apparent; and that the Advocates for the

accused have resorted, deliberately, to taking frivolous

and baseless objections at such times when they

apprehended that an answer favourable to the prosecution

could be elicited from the witness. It is contended by

[Link] that rather than the own Advocates of the

witnesses, the Advocates for the accused have been

zealous in guarding the rights of those witnesses under

the garb of protecting the rights of the accused.

613. In the facts and circumstances, I do not wish to go

 413

deeper into this matter, the same not being necessary.

It is however a fact that many of the objections raised

by the defence during the recording of evidence seem to

be utterly baseless, as elaborately held in the relevant

Court notes.

614. Ultimately, Zahira has admitted that in a press

conference held previously she had stated before the

media that due to fear Zahira and her family members did

not speak the truth before the Court at Vadodara. She

certainly qualifies it by saying that she had stated so

on being tutored by [Link] Setalvad, but does not

deny having stated so.

615. Zahira has said about [Link] Setalvad tutoring

her and also about [Link] telling her that she would

call for the photographs from Gujarat and Zahira would

have to identify the photographs. However, according to

Zahira, she did not actually see the photographs. She

refused to see them. Though Zahira wanted to offer an

explanation of her previous statements and to attribute

the same to tutoring, one fact has been clearly revealed

from whatever she stated that she does admit that she

gave the names of the prisoners in the 'Best Bakery

Case'. Though initially she denied this, later on, she

admitted having given the names, though - off course -

 414

on being tutored by 'persons from her community'. She

has also admitted that she had given the names of the

prisoners in the 'Best Bakery Case' before giving

evidence in the Court at Vadodara. Zahira has admitted

having given the names of the prisoners in the Best

Bakery Case, to National Human Rights Commission,

Election Commission [though, of course, on being

tutored]. This completely destroys the contention which

is emphatically put by the defence that a false case has

been cooked up at the instance of [Link] Setalvad.

What emerges from Zahira's evidence is that she had

undoubtedly given the names of certain prisoners as the

culprits in this case, though she says that she does not

remember those names now and though the names were given

on being tutored by 'persons from her community'. It

also emerges that these names were given by her even

before the previous trial. It is however remarkable,

that in spite of admitting this, Zahira was categorical

in maintaining that she had not given the names of anyone

to the police. Her denial of not having given the names

to the police can not be accepted. If she had gone to so

many authorities, there was no reason for her not giving

the names to the police. If the persons from her

community were tutoring her to name certain persons as

culprits before statutory authorities, there was no

reason for them not to make Zahira give those names to

 415

the police. In fact, giving the names to the police

would have been more important, and would have fetched

the desired results. Zahira's explanation in that regard

[Page 1535 of the Notes of Evidence] that the names were

not given to the police as the police did not come to

her, can not be accepted.

616. Zahira also admits having stated before the media

that she had not spoken the truth in the Vadodara Court,

due to fear.

617. [Link], the learned Spl.P.P., has rightly, in my

opinion, got it confirmed again from Zahira that she did

state before this Court that she had given the names of

the prisoners in the 'Best Bakery Case' to various

authorities [although on the persons from her community

having tutored her to that effect].

618. Zahira has admitted that neither Mohammed Vora, nor

Munna Malik nor Arif Malik were residing in Hanuman Tekdi

locality. I agree with the contention advanced by the

Special Public Prosecutor in this regard that this is

important from the point of view, as to the likelihood of

the witness having been tutored the names by the persons

residing outside the locality. The contention of the

learned Spl.P.P. is that the accused are undoubtedly from

 416

the locality [which aspect shall be discussed and dealt

with latter] and since Mohammed Vora, Munna Malik and

Arif Malik are not the residents of the same locality, it

was highly unlikely that they knew the names of the

persons residing in Zahira's locality.

619. In my opinion, that Zahira might have forgotten to

state the fact of tutoring, cannot be accepted. It is

crystal clear that had the fact been true, it being such

an important aspect, Zahira would never have forgotten to

mention about it. It is clear that community people

approaching her, her going to various authorities, making

allegations, giving statements, would have been an aspect

ultimately leading to the stage when a retrial came to be

ordered and in narrating the happenings till then, no one

would omit this most important aspect. It is clear from

Zahira's evidence that the initial trend was towards

denying the happenings itself. There was a definite a

claim of not having stated or alleged anything at all.

The trend was towards indicating that no culprits or

offenders were seen at all, no complaint had been made at

all and that there was no question of having any

grievance about the previous trial at all, there was no

question of having demanded a retrial at all, etc., etc.

However, the steps taken by Zahira were so many and as

the record of many of them was available in some form or

 417

the other, it could no longer be denied by her, as the

examination by the learned Spl.P.P. progressed, that she

had made certain statements. In this regard also, the

admissions have developed slowly; firstly about having

complained about the incident, then gradually developing

and finally coming up to a stage where even the admission

of having given the names of the 'prisoners of the Best

Bakery case', has been made. It is when the admissions

regarding the previous statements, contrary to what is

now being stated by her became unavoidable, a theory of

tutoring was simultaneously introduced.

620. Zahira claimed that in the papers filed before the

Supreme Court of India, whatever had not happened was

wrongly written by [Link] Setalvad. Zahira claimed

that no photographer or videographer had come to the

place of the Best Bakery along with the police in the

morning of 02/03/2002, which is obviously wrong and

incorrect in view of the clear evidence of not only

Gautam Chauhan [P.W.69], but also of PI Baria [P.W.72]

and the video cassette [Ex.283] itself.

621. The video cassette [Ex.389] which has been produced

by Pankaj Shankar [P.W.73] contains a record of the

interviews of Zahira [P.W.41], Nafitulla [P.W.31],

Nasibulla [P.W.30] and Saherunnisa [P.W.40] taken by

 418

Pankaj Shankar. According to Pankaj Shankar, these

interviews were taken by him on 18/04/2002. Much

criticism of the evidence of Pankaj Shankar is made by

Shri Shirodkar, the learned Senior Advocate. The first

contention that is advanced with respect to his evidence

is that he is a highly interested witness. It is

contended that his bias in favour of [Link] Setalvad

is too obvious.

622. It appears from the cross-examination of this

witness that he has, indeed, concluded that Smt. Teesta

Setalvad is right; and that Zahira [P.W.41] was doing

injustice to [Link] Setalvad by changing her version

and accusing [Link] Setalvad. The witness has not

made any attempt to hide his feelings and suppress his

opinion in that regard. He has specifically stated that

his idea was to show that Zahira lacks credibility.

623. However, the question is whether on that ground, the

witness can be disbelieved. I am not able to hold so. It

is clear that the case arises out of communal violence

and it has created, unfortunately, factions in the

society. It is apparent that some section of society is

interested in helping the accused by providing all the

necessary help to the hostile witnesses to give them

strength and the courage to turn hostile and maintain the

 419

hostility, regardless of the consequences. If, in this

background, somebody would think of exposing the falsity

of the claims of the hostile witnesses and to show that

the allegations against Smt. Teesta Setalvad were

motivated and false, there is nothing wrong in it. Much

has been said about his abilities, his status etc., but I

do not find it very material, looking to the limited

value his evidence has. The only question is whether the

record of the interviews taken by him is fabricated or

bogus. In ascertaining this, his bias in favour of

[Link] Setalvad will be kept in mind, but only on

that basis he has fabricated the record can not be

accepted. The record is clearly not fabricated, in as

much as, Zahira [P.W.41] and Nafitulla [P.W.31] have,

both, admitted having given the interviews in question

and having made the statements in question. Their claim

is only that the said statements were made by them on

being tutored; and that they were not true.

624. That Zahira, Nafitulla and other hostile witnesses

were indeed making statements contrary to what they have

now deposed before the Court, has been duly proved by

voluminous evidence and record, and the video cassette

[Ex.389] is only a part of such record. The contentions

advanced by the learned Spl.P.P., to treat the statements

of Zahira, Nafitulla and others, as recorded in the video

 420

cassette [Ex.389] as substantive evidence, can not be

accepted, the same being legally impermissible. These

statements can not be stated as statements made before

the Court, so as to be the evidence of the facts which

they state. They are also not admissible under any

provisions of the Evidence Act, as substantive evidence.

Zahira and Nafitulla having admitted the record of the

interview to be genuine, it becomes immaterial whether

the witness has a keen desire to help [Link]

Setalvad.

625. The only dispute about the genuineness of the record

is with respect to the date on which the interviews were

taken. This aspect is being dealt with, but for the

present, so far as the criticism of the evidence of

Pankaj Shankar is concerned, I do not think it justified,

except that he has an obvious bias in favour of

[Link] Setalvad. It is also possible that he had

taken legal advice before approaching the Court for

giving evidence. The attempt to show that he had

committed an impropriety by coming to this Court is not,

at all justified. It is ironical that Pankaj Shankar's

action of coming before this Court and introducing the

cassette in evidence is considered as 'interfering' with

the Court's proceedings, but Zahira's making public

statements just before the trial, contradicting her

 421

version before the Supreme Court of India, apart from

several other authorities including the police, is sought

to be justified by saying that she is telling the truth.

626. According to Pankaj Shankar [P.W.73], the interviews

were taken on 18/04/2002 and this date, month and year is

reflected in the cassette itself. The hostile witnesses

have claimed that the interviews were not taken on

18/04/2002, but were taken much after - i.e. after the

previous trial was over and after Zahira was abducted and

brought to Mumbai. Pankaj Shankar has been questioned

about the possibility of manipulating the time setting a

video camera, and he has admitted that it exists.

However, there is no possibility in my opinion of the

interviews having been taken after the first trial, for a

number of reasons.

627. After the video cassette [Ex.389] containing

Zahira's interview taken by Pankaj Shankar was tendered

in evidence, Zahira was recalled for the purpose of

further examination. [Link], the learned Spl.P.P.,

confronted her with Pankaj Shankar by bringing him in the

Court hall. Zahira denied having seen Pankaj Shankar at

any time before that. Zahira was then asked as to

whether while she was residing in the house of Iqbal

Ansari, a number of persons such as photographers,

 422

cameramen, etc., used to meet her, when Zahira answered

in affirmative and added that Iqbal Ansari used to bring

those persons. It is at that stage, she first introduced

the theory of Iqbal Ansari having tutored her to make

certain statements. This is particularly surprising

because the aspect of tutoring was off and on being

repeated during the lengthy examination of Zahira which

had preceded before this and not even once during such

lengthy examination-in-chief, Zahira had indicated any

tutoring done by Iqbal Ansari. In my opinion, this

requires serious consideration whether this goes to

support the claim of Pankaj Shankar that the interview of

Zahira and others recorded in the video cassette [Ex.389]

was taken by him on 18/04/2002 - i.e. the time when

Zahira was, in all probability, staying that Iqbal Ansari

- going by the evidence on record. It is difficult to

accept that Zahira coming across Pankaj Shankar and the

interview recorded by him and disclosing tutoring by

Iqbal Ansari at the same time, was an accident.

628. Interestingly, Zahira states that during the

relevant period, several persons used to come to the

place of Iqbal Ansari, take photographs, interviews, etc.

629. Zahira does not dispute the fact that she and others

are indeed seen speaking what is recorded in the video

 423

cassette [Ex.389] and there is no dispute that she and

others indeed said so. What she claims is that she and

others were speaking what was tutored to them by

[Link] Setalvad. Going by the date to which the

interview came to be recorded as 18/04/2002, it is not

possible to accept that at that time, Zahira and others

had been tutored by [Link] Setalvad, it being an

admitted position that at on that day, [Link]

Setalvad was not in picture at all. The remedy in that

regard is found to be in the claim that the interviews

were not taken on 18/04/2002 at all, but that they were

taken after Zahira and others were brought to Mumbai

after the first trial was over. It can be safely

concluded that the interviews recorded in this video

cassette [Ex.389] could not have been given by Zahira and

others after they came to Mumbai. The statements in the

interview themselves indicate that they were being made

soon after the incident. The contents of the interviews

recorded in the video cassette [Ex.389] belie the theory

of they having been recorded after Zahira and others came

to Mumbai - i.e. much after the previous trial was over.

Though no such claim is to put forward, I have considered

the possibility of the interviews having been recorded

after the first trial but falsely shown as having

recorded earlier - i.e. before the first trial. However,

this also does not seem to be likely at all. The reason

 424

is obvious. First of all, [Link] Setalvad would have

had no reason to record the interview as if it was of a

previous date and it would have served her alleged

purpose well to show it as of the day on which it was

really taken. In fact, that would have been more

advantageous. In that case, she could have also

introduced the statements of having received threats

during the previous trial, about involvement of local

leaders, etc., etc., in which she is allegedly

interested. Secondly, if at all there was some purpose

in making the interviews ante-dated, so many more

damaging matters could have been introduced.

630. Further, the injuries on the person of Nasibulla are

seen to be fresh, indicating that the interviews were

taken soon after the incident. Shri Shirodkar has

conceded this, by saying that the record of Nasibulla's

interview is genuine. The contents of the interview are

such that the possibility of having been taken later on

and shown as if they were taken earlier, does not exist

at all. Thus, indeed, it is a fact that Zahira and

others have made statements that are recorded during

those interviews. It is a different matter that they may

not be treated as substantive evidence and would merely

qualify to be introduced as previous and pre-trial

statements.
 425

631. Shri Shirodkar, the learned Senior Advocate, has

contended that the interviews recorded in the video

cassette [Ex.389] were the result of tutoring, as stated

by Zahira and Nafitulla. He submitted that there were

intrinsic elements indicating that the statement

contained in the interview were as a result of tutoring.

632. Before dealing with the contentions raised by Shri

Shirodkar, it must be observed that Zahira and Nafitulla

have both admitted the interviews to be genuine. It is

not that they have disputed having made those statements.

What is disputed by them is that those statements were

not made voluntarily on their own by them; and that they

were not true. According to them, they made those

statements as were tutored. Thus, what is in dispute is

the truth of the statements made by them and not that the

statements were in fact made.

633. I shall now examine the grounds on which Shri

Shirodkar contends that the statements made by Zahira and

Nafitulla in the interviews themselves indicate that they

were made as a result of tutoring. Shri Shirodkar has

elaborately discussed this aspect in the written

arguments [Ex.521/A] filed by him [at pages 117, 118 and

119 of written arguments (Ex.521/A)]]. Shri Shirodkar

 426

has referred to various statements made by Nafitulla,

Saherunnisa and Zahira in their respective interviews

recorded in cassette [Ex.389], which statements are

patently false, according to him. It is not necessary to

discuss and comment on each and every sentence reproduced

by Shri Shirodkar, the learned Senior Advocate, as a

false statement from out of the interviews. It may only

be observed that the contention that those statements

were false, can not be accepted. For instance,

Nafitulla's statements as 'nau log jo neeche the unhen

bhi jala diya' and 'andar petrol daal rahe the' are

contended to be false and this falsity is contended to be

indicative of 'tutoring'. I fail to understand how the

statement that 9 persons who were below were burnt is

false, if Kausar and Lulla are included in those 9

persons. Further the basis for saying that the statement

that 'ander petrol dal rahe the' is false, seems to be

only that no residues of petrol were found on chemical

analysis of the relevant samples. Absence of petroleum

hydrocarbon traces does not rule out the possibility of

petrol or inflammable substance having been used. The

evidence of Maheshchandra Champaneria [P.W.21] makes this

position clear. As such, to claim that this is proved

to be a false statement is rather strange. Similarly,

the statement of Nafitulla in the cassette as 'sab

pariwar ke hi the sab' is also claimed to be a false

 427

statement, on the ground that Aslam and Firoz were not

belonging to their family. I am not impressed by this.

It is certainly not unknown or uncommon to describe the

persons with whom family relations are existing for years

and who reside in the neighbourhood to be described and

treated, as if members of family. It is not unknown to

refer such persons as 'chacha' 'nana' 'bade abba', etc.

Saherunnisa's statement to the effect of her 'devrani'

'jethani' being they are among those who were burnt,

Zahira's statement that her 'do chachia' were among those

who were burnt, are also claimed to be false. As

aforesaid, I do not agree with this. On the contrary, it

explains in my opinion, the statement of Nafitulla that

'sab pariwar ke hi the sab'. It shows how close the

family of Aslam was to the family of Zahira.

634. Without wasting further time in this discussion, I

come to a more relevant aspect of the matter. Assuming

that the statements are false, I fail to understand how

that would indicate tutoring. It would indicate that the

witnesses were lying, but it would not necessarily

indicate that they had been told by somebody to lie.

635. When Zahira [P.W.41] was confronted with the C.D.

[Ex.283/3 equivalent to the relevant part of the video

cassette (Ex.283)], she admitted that the shooting was

 428

relating to their house and of the morning of 02/03/2002.

In spite of previously denying the presence of Yasmin and

after having seen Yasmin present on the scene recorded in

the C.D., Zahira did not express any surprise.

Ultimately, in the process of questioning and answering

Zahira has admitted that at the time of the incident she

had seen that Yasmin was sitting. Thus, ultimately,

Zahira has admitted the presence of Yasmin. Further,

Zahira has again confirmed the presence of Yasmin by

saying that when the police and the fire brigade came

they - i.e. she, her mother and her sister-in-law - were

on the terrace, though that they were on the terrace at

that time is obviously false as disclosed earlier. It is

pertinent to note that Yasmin's presence on that day

along with Zahira and others has not been denied by

Zahira and the previous denials in that regard were given

up when confronted with the relevant part of the

cassette.

636. After her lengthy examination, Zahira was asked

certain questions by the Court. Zahira admitted that

she, her mother, her brothers and servants were brought

down by a ladder put on the rear side of the house,

though of course she claimed that the ladder was put by

the fire-brigade. The initial story of having got down

from the staircase has been given up after realizing that

 429

a viewing of the relevant part of the cassette would

convince anyone by looking at the fire that had caught to

the 'Best Bakery building, that from inside the building

it was not possible to come down. Thus, even that part

of the prosecution story - viz. that all the victims got

down by the ladder - is also ultimately admitted and the

dispute merely remains on the aspect whether the ladder

had been brought by the rioters before the police and

fire-brigade arrived or whether it was a ladder brought

by police and fire brigade. As already observed, the

story of Zahira and others including her brothers and

servants coming down after the arrival of the police, is

patently false.

637. Thus, the following aspects are admitted even by

them [or such of them as are concerned with respect to a

particular aspect].

i) The incident of a mob of rioters setting

fire to Best Bakery building and other

premises such as Lal Mohammad's 'wakhar'

and Aslam's house indeed took place.

ii) The mob was of Hindu persons and was

giving slogans to the effect 'maro' 'kato'

'bakery jalao' 'har har mahadeo' etc.

That in the fire that was set, immovable

and movable property of considerably huge

 430

amount was damaged and destroyed.

iii) That seven persons died in an as a result

of burn injuries sustained by them, due to

fire that had been set to the Best Bakery

building.

iv) That Nafitulla and Nasibulla were injured

in the riots.

v) That the rioting was going on throughout

the night; and that the mob was throwing

stones, bricks, soda water bottles and

bulbs filled with kerosene on the terrace

of the Best Bakery building.

vi) After the police and fire-brigade came,

the injured including Nafitulla, Nasibulla

and also Zahira, Saherunnisa, Sahera and

Yasmin were taken to S.S.G. Hospital.

vii) Zahira appeared before the various

authorities, such as Human Rights

Commission, Election Commission, etc., and

narrated the incident. She also named

certain persons as the culprits.

viii)Zahira did give the names of the prisoners

of the Best Bakery Case as the culprits

before certain authorities, though not to

police.

ix) In the hospital, police had come and

 431

obtained Zahira's signature on a paper

which paper is admitted to be the document

[Ex.136 (F.I.R.)].

638. Thus, almost everything relating to the prosecution

case has been admitted by Zahira and the other hostile

witnesses. What is not admitted is the connection of the

accused, though even the fact that some names - and that

too of the prisoners of the 'Best Bakery Case' - were

being given by Zahira from time to time to various

authorities is admitted. The dispute is only about

having given names to the police. In the ultimate

analysis, the claim is not that the names of some persons

as the culprits were not given at all by Zahira at any

time to any authorities, but the claim is that they were

given on being tutored; and that presently she does not

know or remember what were those names. The alleged

tutoring also has been done not only by [Link]

Setalvad, as originally suggested, but by various

different persons at different periods of time.

639. There is a conscious effort, as already observed, to

avoid disclosing the morning incident as deposed to by

the supporting witnesses. There is, therefore, an

assertion on the part of these witnesses that those who

were injured including Nafitulla and Nasibulla were

 432

injured in the night itself and had lost consciousness.

These hostile witnesses claim that they and even the

others came down, or were brought down from the terrace

only after the police had arrived. Therefore, if this

is true, Sailun, Baliram, Prakash, Rajesh, Raees and

Taufel all sustained injuries in the night itself. Apart

from the fact that the injuries sustained by them,

including those by Nafitulla and Nasibulla, are not such

which can be caused by throwing of stones, bottles or

bulbs etc., the absurdity of this claim is exposed by the

fact that none of the women who were on the terrace were

injured on account of the stone throwing and bottle

throwing etc. In the at random stone throwing and bottle

throwing which was going on throughout the night only the

men would sustain so severe injuries, without even one of

the women sustaining any serious injuries, can not be

believed by any sensible person. The story of the

hostile witnesses of the police coming and rescuing them

therefore, leaves this aspect - viz. how the men were so

badly injured and how the women were not injured,

unanswered. This theory is explained only if the morning

incident as deposed to by the witnesses is true.

640. In the ultimate analysis, therefore, the evidence of

the hostile witnesses supports the prosecution case to a

large extent and in spite of the initial extreme stand

 433

taken by them, they ultimately admitted a substantially

large part of the prosecution case, except the part

relating to establishing the connection of the accused

persons with the alleged offences.

641. The examination of the hostile witnesses has

revealed certain disturbing aspects. These witnesses who

are hostile and who are obviously speaking lies, as amply

demonstrated by a discussion of their evidence, have been

actively assisted and supported by some person or persons

from Vadodara, by looking after all their financial needs

and by providing for the expenses of their Advocate. It

emerges from their evidence, that Advocate Atul Mistry

used to come along with these witnesses and used to

remain present in the Court during their examination.

Nasibulla states that he did not know Advocate Atul

Mistry at all; and that he was introduced to him by his

brother. All his fees are paid not by anyone of these

hostiles witnesses, but by 'Jan Adhikar Samiti'.

According to Nafitulla, 'Jan Adhikar Samiti' provided the

services of Advocate Atul Mistry to him and others.

According to Nafitulla, he and Zahira met Advocate Atul

Mistry only on the day on which the press conference was

held by Zahira after going to Vadodara. It was after the

retrial had started.

 434

642. Sahera [P.W.35], though knows Atul Mistry to be her

Advocate, claims that she has never met him. What is

interesting is that Sahera was not able to state what was

the necessity for her to engage an Advocate. In spite of

repeated questions, she was unable to give an answer as

to what was the requirement of an Advocate. Advocate

Atul Mistry is the one who told Sahera to appear before

this Court - atleast Sahera states so. The evidence of

Sahera [P.W.35] shows that Advocate Atul Mistry had given

a vehicle to her by which she and 3 policemen travelled

up to Mumbai. Sahera did not pay any money for the

petrol, which was already filled in, in the vehicle. She

also did not pay any money to the driver.

643. Saherunnisa [P.W.40] speaks of Atul Mistry being her

Advocate. Her evidence shows that when she came for

giving evidence, she came by the police vehicle, and that

three policemen, one women police constable and her

Advocate also travelled by the same police vehicle.

644. When Sahera was being examined, it was noticed that

she had been given police protection. A number of

irregularities which were shocking and surprising were

noticed in the matter of giving police protection.

Curiously, Sahera and these witnesses did not want

protection from Mumbai Police.

 435

645. Sahera was not accompanied by any woman constable.

Male police constables had been sent with her, supposedly

for her protection in an irregular manner. No order

requiring them to accompany her to Mumbai was produced.

Sahera, however, had no complaint or grievance and there

was nothing to indicate that she was under any threat or

fear, etc.

646. The evidence of Saherunnisa [P.W.40] shows that

Advocate Atul Mistry used to do reservations in the

lodge, reservation of vehicles and also used to take

decisions as to where the witness would be staying etc.

The Government of Maharashtra had made available

accommodation to the witnesses in the government guest

house, but the hostile witnesses preferred to stay at

different places with their Advocate. 'Jan Adhikari',

though was helping these witnesses financially, was not

giving any money directly to them. The money was being

given to Advocate Atul Mistry and the details of the

payment were not being disclosed to these witnesses.

Saherunnisa was unable to explain what help was being

given to them by the 'Jan Adhikari'. 'Jan Adhikari' is

understood to be a person by Saherunnisa and even the

other witnesses.
 436

647. How Zahira met Advocate Atul Mistry is an

interesting story. When Zahira and others went to

Vadodara by a car after the commencement of the retrial,

she and Nafitulla met Atul Mistry in the Court. When she

went to the Court of Vadodara and told one Advocate that

she wanted to engage an Advocate, that Advocate pointed

out to Advocate Atul Mistry and said that they [Zahira

and Nafitulla] should talk to him. Zahira had never met

Advocate Atul Mistry at any time, prior to that and she

asked the first mentioned Advocate whether he would take

up her case. According to Zahira, the Advocate

previously contacted by her in the Court told her by

pointing out towards Advocate Atul Mistry 'woh wale vakil

ke paas jao'. According to Zahira, she herself found out

Advocate Atul Mistry by going to the Court and nobody

recommended or introduced him to her. This is a cock and

bull story, which the Court is expected to believe.

According to Zahira, they narrated things to Advocate

Atul Mistry and he wrote them down and prepared an

affidavit. That then Zahira demanded help from 'Jan

Adhikari'. Interestingly, Nafitulla [P.W.31] says that he

met Advocate Atul Mistry at the time of the press

conference and not in the Court as spoken by Zahira.

Nafitulla categorically states that he had met him only

on the day, on which the press conference was held.

Zahira's evidence on the contrary, says that she first

 437

met Atul Mistry and then she approached 'Jan Adhikari',

and it is thereafter that a press conference was held.

According to Zahira, it was about 5 to 6 days prior to

the holding of the press conference. According to Zahira

also, 'Jan Adhikari' is a person by name 'Tushar Vyas'.

Coming to the payment of fees, Zahira states that she has

not paid any fees to any of her Advocates including Atul

Mistry. Advocate Atul Mistry had even gone along with

Zahira to Gandhinagar. The booking of the room where

Zahira stayed at Gandhinagar was done by Atul Mistry.

Zahira apparently had gone for meeting 'Mahila Ayog'.

There was no occasion to bring 'Mahila Ayog' in picture

in this case, as Zahira's grievances, if any, in respect

of this case were not connected with she being a woman

and it is difficult to understand what was expected to be

done by the' Mahila Ayog'. Reason given by Zahira in

that regard is that 'only a woman could understand the

difficulties of a woman'; but it is obvious that this

statement does not make any sense and has been said by

Zahira as tutored. There were no problems of women in

this case, requiring cognizance to be taken by 'Mahila

Ayog'.

648. Interestingly,during the evidence when the question

of production of her pass-book arose, Zahira said that

she would make inquiries with her mother who was at

 438

Vadodara at that time,regarding [Link] she appeared

before the Court on the next day,she did produce the

relevant pass [Link] said that she had contacted her

mother on telephone. She said that the telephone call was

made by her from the mobile telephone of Advocate Atul

Mistry. However, on which telephone that call was made,

could not be told by her. Zahira was asked as to who gave

her telephone number on which she spoke to her mother, to

which she replied that she did not know and she even did

not know whether Advocate Atul Mistry knew the telephone

number of her [Link] Atul Mistry apparently knew

the telephone number on which Zahira's mother Saherunnisa

could be contacted, but who gave him that number, Zahira

does not know. Though according to Zahira, appointment of

Advocate Atul Mistry has nothing to do with the 'Jan

Adhikar Samiti', she says that she would talk to the

persons from 'Jan Adhikar Samiti',if required,through

Advocate Atul Mistry. However, by people from 'Jan

Adhikari' she was meaning Tushar [Link], 'Jan

Adhikar' or 'Jan Adhikar Samiti' is treated and

understood as one person Shri Tushar Vyas - by Zahira and

other witnesses and it is only when the Special Public

Prosecutor would refer to it as 'Jan Adhikar Samiti' they

would speak of 'Jan Adhikar Samiti'otherwise it would be

referred to as 'Jan Adhikari'.Thus, Advocate Atul Mistry

apparently was accompanying Zahira and others,

 439

everywhere. He used to sit in the Court while the

evidence was being recorded and though what legal

services he was rendering to them is not clear, the fact

that he was doing all other chores for them, is clear.

He was looking after their comforts in booking vehicles,

arranging for lodge, even dialing telephone numbers for

them, etc. 'Jan Adhikar Samiti' had put so much trust in

him that though he was introduced to them by Zahira,

instead of giving any money to Zahira and others, they

used to hand over the money to Advocate Atul Mistry only,

who would not be required to give any accounts thereof to

Zahira and others. It is also remarkable that no

receipts are taken from Zahira or the others regarding

the financial assistance given to them, by the 'Jan

Adhikari'.

649. The role played by 'Jan Adhikar Samiti' in the whole

matter is also very interesting. What are the aims and

objects of this 'samiti', if at all, it is a 'samiti',

has not been brought on record except that they help the

weak and needy. Why they have chosen Zahira and others

as 'needy persons' and what is the understanding between

them, is not clear. Why Zahira requires facilities for

attending the Court and requiring payment of her

Advocate's fees etc., is difficult to understand, when

all that she has to say is that she did not lodge any
 440

report, she did not make any complaint, that she did not

make any complaint about improper trial held in the

Vadodara Court, she never asked for re-trial, she never

approached the Hon'ble Supreme Court of India; and she

does not know who are the culprits. 'Jan Adhikari' Shri

Tushar Vyas, appears to have done a lot for Zahira and

her family. The expenses of travelling not only to

Mumbai, but also to Delhi, the expenses of Advocates are

all paid by 'Jan Adhikari' or 'Jan Adhikar Samiti'. The

arrangements for the stay of these witnesses in the

hotels, not only when they visited the Court, but even

otherwise have been made by this 'samiti' through

Advocate Atul Mistry and the entire financial burden is

taken by this committee. Why the rent or expenses of the

place where these witnesses were staying, were being

borne by 'Jan Adhikar Samiti', can not be understood as

all that Zahira speaks is that she wanted financial

assistance from them, only for coming to the Court and

going back. It is a matter of record that Zahira was

earlier bitterly complaining about injustice done to her,

about improper investigation, about the threats having

been received by her etc. At that time, 'Jan Adhikar

Samiti' did not assist her. Undoubtedly, it can be said

that Zahira did not approach them at that time, but what

is significant is that Zahira approached them at a time

when she decided to resile from what she had been stated
 441

before several authorities, as admitted by herself

[though on being tutored]. Thus, the help of 'Jan

Ahikari' was sought only when Zahira decided to advance a

particular version of the incident. Even ignoring

whether the version Zahira intended to advance was true

or not, it is fact that, it is only when that version was

to be advanced, 'Jan Adhikari' was approached and

assistance was sought and obtained.

650. Since 'Jan Adhikari' is not before the Court, I do

not wish to make any further observations on this. The

version which Zahira is now advancing before the Court,

has been proved to be false in several respects and

barring that the accused are the offenders, almost

everything has been wrested from her by the learned

Spl.P.P.

651. The hostility of Zahira and others is a condition

difficult to understand and/or explain. There can be no

doubt that they are the victims of the offences in

question. There can also be no doubt that Zahira had

lodged a report with the police on the basis of which,

the crime came to be registered. There is also no doubt

that Zahira and the others turned hostile during the

first trial, but after the acquittal of the accused,

complained that they had been forced to speak lies due to

 442

threats and pressure. After a retrial was ordered, they

again turned hostile. To suppress that they had made

allegations in respect of the previous trial, they tried

to attribute to [Link] Setalvad and her organization

several wrongs. They suggested that the persons from

their community – i.e. Muslims – were attempting to force

them to speak lies during the trial, supposedly for the

benefit of their community. In other words, they wanted

to show that persons from Muslim community are interested

in causing harm to the accused in the supposed interest

of Muslim community. Their evidence elaborately

discussed above, leaves no manner of doubt that they are

lying in several respects and have been tutored. It also

appears that they have been given monetary inducement.

652. Saherunnisa's [P.W.40] evidence discussed above

gives me an impression that somehow these witnesses have

not felt assured of their safety and security. Having no

trust in the society and the system of administration of

justice, they probably thought that their interests lie

in avoiding confrontation. Apparently, the best bargain,

under the circumstances, as thought by them, was to make

some monetary gains to make their future life somewhat

better. The hostility of these witnesses is a matter

which may be of interest to psychologists and

sociologists.
 443

653. In my opinion, whatever may be the mental condition

of these witnesses and the cause behind their attitude,

the wrongs committed by them cannot be overlooked.

Whether those at whose instance these witnesses have lied

with impunity, would ever be brought to book or would be

made to pay for their misdeeds, is doubtful; but the

conduct of Zahira, Nafitulla, Nasibulla, Saherabanu and

Saherunnisa cannot be condoned. If, in spite of speaking

lies persistently, no action is taken against them, an

impression would be created that the system of

administration of justice takes the lies spoken on oath

before the Court of law lightly. In my opinion, Zahira,

Nafitulla, Nasibulla, Saherabanu and Saherunnisa have

knowingly given false evidence. It is necessary and

expedient in the interest of justice that they should be

tried summarily for giving false evidence.

654. The aforesaid discussion gives an idea as to the

evidence in the case. As while narrating the prosecution

case in the earlier part of this Judgement, the entire

evidence has been marshalled and time sequencing of the

facts has been done, it is not necessary to discuss the

evidence of each and every witnesses, particularly when

there is no controversy about such evidence. There is

circumstantial evidence in the nature of recoveries of

 444

certain articles/objects at the instance of some of the

accused persons, which can be conveniently discussed

while considering the case against each such accused.

655. However, I propose to refer to the evidence of PI

Baria and PI Kanani who are the Investigating Officers,

before proceeding further and examining the various

contentions raised generally about the prosecution case.

656. PI Baria [P.W.72] is the person who has recorded the

initial statements of the occurrence witnesses and as

such, his evidence is material and relevant in the

context of the alleged omissions and contradictions in

the statements of the occurrence witnesses. It cannot be

helped observing that much of the cross-examination of PI

Baria has been rendered rather unnecessary, in as much

as, the points that were intended to be made out from

such cross-examination have ultimately been given up

during the arguments.

657. A number of shortcomings in the investigation that

was carried out by PI Baria have been brought on record.

I indeed find that the investigation carried out by PI

Baria was unsatisfactory. Baria has not taken charge of

the clothes of the injured. Baria has also not taken

charge of the coir ropes with which the injured had been
 445

tied. According to [Link], the learned Spl.P.P., these

lapses in the investigation have occurred because of the

difficult law and order situation. It is submitted by

[Link] that considering the law and order situation, as

also the number of crimes that were being reported to

Panigate Police Station, it was not possible for Baria to

coolly and methodically investigate into the matter as

he would have done under ordinary circumstances. I have

considered the matter. Even after giving due allowance

for the difficulties faced by Baria, it is not possible

to hold that he carried out the investigation properly.

It appears that Baria was not serious about the

investigation and did not try to do his best to collect

evidence. However, the shortcomings in the investigation

have not prejudiced the accused in any manner. The

perfunctory manner in which PI Baria carried out the

investigation, does not appear to have been done with the

object of implicating the accused.

658. The learned Advocates for the accused were probably

more comfortable in questioning PI Baria in the cross-

examination, than PI Kanani, as otherwise, the aspects

which actually Kanani was competent to deal with, would

not have been put to Baria. For instance, the accused

No.2 has been arrested on the basis that he is 'Mahendra

Langado' [who was believed to be involved in the

 446

incident]. According to the Advocates for the accused,

he is not lame – i.e. Langado - and that there is another

'Mahendra Langado' in that locality. Baria was

questioned in the cross-examination as to whether the

accused no.2 was Langado and Baria readily admitted that

he did not consider the accused no.2 as Langado.

Interestingly, it is not Baria who has arrested accused

no.2 as 'Mahendra Langado'. It is PI Kanani [P.W.74] who

has arrested him as 'Mahendra Langado'. Since a

'Mahendra Langado' was to be arrested and since PI Kanani

arrested accused no.2 as Mahendra Langado, it would have

been more appropriate to make the demonstration that was

made before Baria making accused no.2 walk, hop, jump,

etc., before PI Kanani and to invite Kanani's comments on

that. The procedure, as adopted by Shri Adhik Shirodkar,

the learned Senior Advocate, has led to this result –

viz. Baria who never claimed that accused no.2 is

Langado, is made to admit that he is not Langado, but

Kanani who arrested him on the basis that he is Mahendra

Langado, is not asked whether the accused no.2 was

Langado.

659. The evidence of PI Kanani [P.W.74] in the context of

the details of investigation, have already been

discussed. Further, his evidence would need discussion

in the context of specific contentions urged by the

 447

learned Advocates for the accused. I shall, therefore,

make only a general comment on the evidence of PI Kanani

here. PI Kanani's evidence has been much criticized by

the learned Advocates for the accused. PI Kanani has

been termed as 'dishonest', 'liar', 'an arrogant liar'

and 'deceitful'. It is urged that comments on Kanani's

evidence should be made by the Court while recording the

Judgement and it would be essential to pass strictures

against him. In my opinion, the criticism of PI Kanani's

evidence is absolutely unjustified, unwarranted and

uncalled for. On the contrary, the lengthy cross-

examination of PI Kanani [the notes of which run into

more than 450 typewritten pages] does not seem to be very

fair. Several improper questions were put to PI Kanani

and he was unnecessarily grilled over matters which are

basically in nature of the arguments. PI Kanani was,

during his cross-examination, frequently asked questions,

inviting his opinion about the effect of the evidence

given by the witnesses and in some cases also regarding

the effect of the evidence given by himself. Questions

were frequently asked to him, so as to initiate a

discussion on the merits of the case and the legal issues

involved, obviously with the idea of benefiting by such

discussion between him and the cross-examiner. The

grievance about the arrogance of PI Kanani also does not

seem to be justified. It is the form of the questions

 448

put to him, that has sometimes forced him to volunteer

certain matter and to show how the question is

misleading, or how the basic supposition therein is

wrong. Kanani has refused to meekly submit to the

propositions canvassed by cross-examining counsel. It

appears to me that it is the feeling of frustration that

has resulted in uncalled for criticism of so called

attitude of PI Kanani.

660. The cross-examination is full of improper and unfair

questioning, but I propose to give only a few

illustrations thereof here.

661. Because Kanani stated in his examination-in-chief

that he was called in the Court at Vadodara during the

previous trial only on 20/06/2003 – i.e. the date on

which his evidence was recorded –, thinking that this

would show that in the previous trial, his assistance was

not available to the Public Prosecutor, in-charge of that

trial, and disliking it, Kanani has been questioned in

the cross-examination as to 'whether he was told by

anyone not to come to the Court at Vadodara during the

trial'. This question is absolutely improper. That

nobody had given information of the trial to Kanani; and

that he had not received any summons; and that he

attended the Court only on the date on which his evidence

 449

was recorded is not challenged, but the suggestion is

that he could have very well attended the Court earlier,

'because he was not told by anyone not to come to the

Court'. Such a suggestion is absurd. It cannot be

expected that a police officer posted in Ahmedabad would

or should simply leave his duties and come to Vadodara

during the trial because 'he was not told by anyone not

to come to the Court'. The question of his going would

arise if he is told by his superiors or connected

officers with the trial to go to the Court. An official

witness cannot be expected to attend the Court simply

because nobody had told him not to come. This has been

discussed as it shows an improper attitude in the cross-

examination.

662. Kanani has been questioned during the cross-

examination as to whether he knew why the case was

transferred and what directions were given by the Supreme

Court of India while ordering re-trial. Kanani has

replied that he had not read the judgment of the Supreme

Court and as such, he did not have detailed information

regarding it, but that he had some knowledge about it.

Interestingly, what knowledge he had, has not been asked

and the matter has been dropped there itself by the

cross-examiner.
 450

663. PI Kanani has been extensively questioned in the

cross-examination regarding his action or reaction

pursuant to the re-trial ordered by the Supreme Court.

The questioning is done on the basis that the cases are

ordered to be retried because of some lacuna or mistake

in the investigation. There is no basis for such

assumption; but by assuming this, a number of questions

have been put. Kanani was asked whether he asked his

superior officers or the Legal Department of the State as

to what went wrong and what was lacking in the

investigation that was carried out by him, so as to

require a re-trial. This type of questioning, which is

based on the assumption that retrials are ordered because

of defects in investigation and the orders of acquittal

are passed on the basis of investigation, is not proper.

Cases are not decided on the investigation or supposed

lacuna in investigation, but on the basis of sufficiency

or otherwise of the evidence. The supposition or

expectation of Shri Shirodkar, as implicit in the

questions, that Kanani should go on inquiring and seeking

opinion from his superior officers and the Legal

Department, as to 'what had been lacking in the

investigation' is ridiculous. When Kanani said that he

did not do so, he was then again grilled as to why he did

not do it; but in all this questioning, 3 things are

presumed.
 451

i] Acquittals take place [only] because of

defect in investigation.

ii] Re-trials are ordered [only] if the

investigation is faulty.

iii] That Kanani had formed and should have

formed an opinion that the re-trial had

been ordered because of some lacuna in

investigation.

664. All this is so absurd that it does not require any

further comment. In any case, Kanani has stated, when

specifically questioned about the reason for not asking

the Special Public Prosecutors as to what was the defect

in the investigation, that there was no defect at all in

the investigation. Even thereafter, Kanani was

questioned as follows :

'Did you, on your own, ask the Spl.P.P.

that the investigation was proper; and

that there was no defect in it; and that

still, why the case had been transferred

?'

Here, again, it is assumed that the case could be

transferred only if the investigation was not proper and

defective. Kanani has answered that he had some

knowledge as to why the case had been

transferred. Now, instead of asking what was the

 452

knowledge, the subject is given up and no reasons, as

known to Kanani regarding the transfer of the case, have

been sought from him.

665. Kanani was wrongly asked a question as to whether he

carried out further investigation after said judgment was

delivered to the Supreme Court. When he said 'no', it

was put to him that it was because he believed that

whatever investigation had been carried out, was proper

and sufficient; and that there was no necessity of any

further investigation and he was asked to state whether

it was correct or not. Kanani has given a simple

explanation of the fact -viz. that he had been

transferred to Vadodara on 01/12; and that therefore, the

investigation of the case was not with him at all when

re-trial was ordered. Kanani has also rightly pointed

out that in such matters, a decision would be taken by

the superior officers and not by the Investigating

Officer. The matter had gone to the Supreme Court of

India where the State of Gujarat was a party and highest

police officers of the State had appeared before the

Supreme Court before it passed the order of re-trial

outside the State of Gujarat. It was impossible under the

circumstances that PI Kanani would abruptly start

investigation again, as soon as he would hear about the

Supreme Court of India verdict, though he was not posted

 453

at the concerned Police Station, had no case papers with

him and though he had not been told to do so, but

questions based on such supposition have indeed been

asked.

666. The questioning of PI Kanani in the cross-

examination with respect to the F.I.R., is a model of

improper and unfair questioning. Many of the questions

could have been disallowed, but in view of the claim that

the Court would be satisfied about the relevancy and the

propriety of the questions which could not be disclosed

at that stage to avoid arguments, many doubtful questions

were permitted. Moreover, PI Kanani was an experienced

Investigating Officer and as such, an experienced witness

who appeared to be capable of giving proper replies to

such questions, which factor was also weighed in favour

of permitting the questions. PI Kanani was asked as to

whether the FIR is the information, in respect of the

commission of a cognizable offence, which is first in

point of time, to which he agreed. Now, this being a

legal question, need not have been asked, particularly

when the position is not correctly put. All the legal

aspects to make it F.I.R. were not included in the

question. Questions touching the rules of evidence

regarding burden of proof were asked to him. He was

asked that the burden of establishing that a particular

 454

information was first in point of time, was on the

prosecution only. Since Kanani had earlier stated in

reply to the question as to why he did not investigate

into the aspect of 'establishing the date and time of the

lodging of the FIR', that he did not imagine that Zahira

would turn hostile again, he was asked whether he agreed

that 'that it was the 'first information', was required

to be established by the prosecution only; and that it

would be immaterial whether the first informant would

turn hostile or not'. Kanani has accepted this as

correct. All this is shocking, wrong and improper. That

it is required to be established by the prosecution, does

not mean that it is not required to be established

through any witnesses. In fact, there is no other way

for the prosecution, than to establish a fact relied upon

by them, through their witnesses. Kanani has properly

answered that had Zahira not turned hostile, the

prosecution could have established the date and time of

the lodging of the FIR, through her evidence. In spite

of such clear answer, the matter is not given up and it

was put to PI Kanani that he wanted to claim that the

burden of establishing the date and time of the lodging

of the FIR, which was on the prosecution, was thrown upon

Zahira by him. Kanani has naturally denied the

suggestion, but the suggestion is absurd. It is

difficult to understand what is the concept on the part

 455

of the cross-examiner as to how the prosecution is to

discharge its burden. The concept of the cross examiner

as apparent from this type of questioning seems to be

that the prosecution has to discharge the burden on it

without the evidence of any witnesses; and that

discharging the burden on it, does not include

discharging the same by examining a witness for the

prosecution. All this is so absurd that it does not

deserve any further comment from the Court.

667. I refrain from giving any further illustrations

of such improper questioning of PI Kanani, save and

except where such discussion would be necessary in the

context of a particular contention. Even this has been

mentioned because the 'attitude' of PI Kanani was

severely criticized by the defence, as mentioned earlier,

and it was repeatedly urged that strictures should be

passed against him.

668. I shall now consider the contentions raised by the

learned Advocates for the accused one by one except those

which have already been dealt with earlier in the course

of discussing the evidence.

669. Though, at the commencement of the arguments, it was

submitted by Shri Shirodkar, the learned Senior Advocate,

 456

that the happening of the unfortunate incident was not

being disputed, still, a number of contentions have

actually been raised, challenging the happening of the

incident itself, particularly the morning incident.

670. It is submitted by Shri Shirodkar that the reasons

why the Supreme Court of India transferred the case here

while ordering a retrial, are entirely irrelevant so far

as proving the charges against the accused is concerned.

There can be no doubt about the correctness of this

proposition. However, a number of contentions have been

vehemently advanced during the course of arguments, which

involve comparison of the evidence of the witnesses in

the previous trial and the present one. The explanation

of the concerned witnesses in that regard, are also

required to be taken into consideration. Contentions

have been advanced that a fraud was played upon the

Supreme Court of India in securing an order of retrial.

It has been contended that everybody is acting under fear

of the persons at whose instance the retrial came to be

ordered; and that it is due to fear of those persons and

of the Supreme Court of India, witnesses are deposing in

favour of the prosecution. If it is expected of the

Court that the evidence should be appreciated in the

'background' of certain alleged facts, then a scrutiny of

whether the 'background' projected and alleged facts

 457

really exist, cannot be avoided. Why a retrial was

ordered, is certainly not 'per-se' relevant. Relevancy

is governed by the provisions of the Evidence Act. If

some issues become relevant in this case, then they can

not be overlooked only because they touch some aspects of

the previous trial, order of retrial, reasons for the

hostility of the witnesses. etc.

671. The questions posed by Shri Shirodkar, the learned

Senior Advocate, as to 'whether the exercise of examining

the hostile witnesses at length was undertaken to prove

the guilt of the accused, or whether it was undertaken to

salvage the image of [Link] Setalvad and her

organization', or 'whether it was an attempt to convince

the Supreme Court of India that it was not misled by

[Link] Setalvad in transferring the trial from

Gujarat to Maharashtra', etc., etc., are not very proper.

In particular, the supposition - implicit in the question

posed - that the Supreme Court of India had started

doubting the correctness of its order and was therefore

required to be convinced about the correctness of the

same, is objectionable. Even in the arguments, it is

mentioned that the accused are made sacrificial pawns in

a game of 'one-up-man-ship' undertaken by [Link]

Setalvad [page 5 of the written arguments (Ex.521/A)].

Therefore, examination of the correctness of these

 458

contentions can not be avoided. At any rate, the

relevancy thereof, has been projected by the defence

only.

672. It is contended that though there have been

consistent improvements in the evidence of the witnesses

who have supported the prosecution, 'no one has cared to

ask even one question about the source of their

'enlightened' evidence'. It is contended that the

failure of the prosecution has thus 'subverted and

perverted the fairness of trial'. This contention is

strange. What was expected of the prosecution, according

to the Advocates for the accused is difficult to

understand. 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

time.

673. It is contended that the sketch plan about the

topography of the place of offence is not properly drawn.

It is contended that the evidence of [Link] [P.W.1]

and [Link] [P.W.2] shows that there are a number of

shortcomings in drawing of the said sketch plan [Ex.7].

All this is immaterial because the accused are not at all

prejudiced by the errors, if any, made by the plan makers

 459

in drawing the plan.

674. It was also contended that the incident had nothing

to do with the communal riots. It was contended that the

incident occurred because Nafitulla [P.W.31] had married

a Hindu girl. This was based only on the supposed

statement made by Yasmin [P.W.29], not in the Court, but

prior to her giving evidence. This contention was just

raised and given up without elaborating it further. It

is needless to say that this is without any substance.

675. An interesting contention is advanced to the effect

that there are two important points which show that the

prosecution version is not true. It is contended that if

the prosecution case is true, why Lal Mohammad [P.W.36]

was not killed. The other point is said to be why the

mob did not enter inside the Best Bakery building in the

night and kill the inmates. It is also contended that if

the object of the unlawful assembly was to kill Muslims,

why all the persons were not killed. There is no

substance in these contentions. These contentions have

also been repeated by Shri Jambaulikar, the learned

Advocate for accused nos.1 to 5, 10, 11 and 12, while

advancing separate oral arguments and are being dealt

with later.
 460

Was it impossible for the occurrence witnesses to have

seen the mob ?

676. It is contended by Shri Adhik Shirodkar, the

learned Senior Advocate, that it was impossible for the

eye witnesses to have seen the persons in the mob. The

first basis of this contention is that there was only one

road light which was situated on the right side of the

bakery which was not functioning; that there was no other

light and 'therefore' there was total darkness. It is

contended that as it was the first day of March, at about

the time given by the witnesses [as the time when the mob

of rioters came – i.e. at about 8.30 p.m.], there would

be total darkness in the absence of any artificial light.

677. That there was no light is claimed to have been

established by the evidence of Bhimsinh Solanki [P.W.61].

It may be recalled that Bhimsinh Solanki is the Assistant

Sub-Inspector of Police, who had, while patrolling in

Wadi Mobile-I wireless van at about 8.35 p.m., gone to

Daboi Road, Hanuman Tekdi. Bhimsinh Solanki states that

when he went to Hanuman Tekdi, he saw that a godown and a

house were burning. In the cross-examination, it was put

to him that the street lights in Hanuman Tekdi and nearby

area were not working when he had gone there on

01/03/2002, which suggestion has been accepted as correct

 461

by this witness. Thus, on the basis of this evidence, it

is contended that there was no street light available,

when the mob of rioters came and as such, the witnesses

could not have seen the persons in the mob.

678. I have examined the correctness of this contention,

carefully. That the street lights were not working,

would not, by itself, indicate that there was no

artificial light at all at that place. There is no

evidence that electricity was not available in the houses

in that area at the material time. There is not even a

suggestion that the electricity supply to that area had

been affected or disconnected at the material time. On

the contrary, even the evidence of hostile witnesses

shows that at the material time, lights were there in

their house and that they were switched off. The

evidence of Sahera [P.W.35] shows that she and other

members of family were reading at the material time and

that there were lights in the house. Existence of light

in that area cannot be disputed. The evidence indicates

that there was no problem with the electricity supply to

that area.

679. The locality of Hanuman Tekdi is predominantly a

residential locality and it is difficult to accept that

the evidence 'street lights in that area were not working

 462

at the material time', can be construed so as to mean

that 'there were no lights in any of the houses at that

point of time – i.e. at about 8.30 p.m. to 9.00 p.m.'.

680. The evidence of Mohammed Ashraf Mohammed Haroon

Shaikh [P.W.33] also clearly indicates that there were

lights in the houses in the Hanuman Tekdi locality. His

categorical assertion in that regard is not challenged at

all, and what is suggested is merely that those lights

were inside the houses. The contention implicit in the

suggestion – viz. that therefore that light from those

lights would remain only in the houses and would not come

out, or on the road – cannot be accepted even for a

moment. Mohammed Ashraf was sought to be contradicted by

a portion [Ex.450] in his statement [X-34 for

identification] recorded during the investigation, which

reads as,

“Moreover, I could not see in the darkness

at night as to who were there in the mob”,

but as the evidence of PI Kanani [P.W.74] indicates that

this darkness and inability to see, as has been spoken,

does not relate to the place where the mob was, when the

eye witnesses are supposed to have seen the mob and/or

the persons present in or forming the mob. As such,

inference ruling out of the possibility of the witnesses

having been able to see the persons in the mob cannot be

 463

drawn therefrom. No attempt has been made to show the

position of lights in the houses in that locality in the

cross-examination of the eye witnesses. The particular

hour of night was not so late so as to presume, in the

absence of any evidence, that the lights in the houses

would be switched off by that time. It also cannot be

accepted that even if there would be lights in the

houses, they being inside, there would be 'total

darkness' on the street. Some light is bound to come on

the street from the houses and at that hour of the time,

one can hardly expect 'total darkness' in a residential

locality. In view of the evidence on record and since

the aspect of the position of light in the houses in the

locality is not even touched in the cross-examination of

any eye witnesses, I am unable to hold that there was no

light in the locality at the material time.

681. The alleged impossibility of the eye witnesses

having seen the rioters or persons in the mob is also

highlighted by contending that there was very thick smoke

which would affect the vision and prevent the witnesses

from being able to see the happenings that were taking

place. Apart from the difficulty to the vision as would

be caused by the thickness of the smoke, it is also

contended that because of the smoke, eyes would be

irritated; and that, in such circumstances, one would not

 464

even attempt to see as to what was happening. It may be

observed that this is, on the face of it, unacceptable,

for the simple reason that the existence of fire and the

consequent smoke are the happenings that took place after

the mob of rioters arrived. There was no fire or smoke,

much less intense fire and dense smoke, when the rioters

came. Alleged existence of smoke is, in any case, an

event subsequent to the coming of the mob of rioters at

the relevant place; and therefore, is absolutely

irrelevant for ascertaining whether the eye witnesses

were in a position to see the persons in the mob at the

time when the mob came. However, even if this is ignored

and the evidence is examined to see what was the position

after the fire was set or caught, I do not think that it

can be concluded that due to smoke, it was impossible for

the witnesses to have seen the mob or any members in the

mob.

682. In the cross-examination of Kiritbhai Patel

[P.W.10], Fire Officer, certain general questions about

the tendency of smoke, etc., have been put to him. The

admissions of this witness on general questions that

'whenever there is smoke, it would be difficult to see

through it', that 'if there would be smoke and night

time, a mere torch would not be sufficient and halogen

light would be required', that 'where there would be

 465

smoke and fire and there would be night time, the eyes

would get irritated, would start watering and it would be

difficult to see' are pointed out for advancing a

contention on the impossibility of the witnesses having

been able to see anything at the material time. In my

opinion, this exercise is futile. What was the situation

at a particular point of time, at a particular place,

cannot be decided on the basis of general answers given

by the witnesses unconcerned with the identification of

the accused. The circumstances to which the general

answers given by Kiritbhai Patel [P.W.10] and other

witnesses from the fire-brigade may be applied, have not

been shown or indicated to be in existence at the time

when the occurrence witnesses are said to have seen the

rioters.

683. In this context, it is remarkable that the inability

to see, firstly, because of lack of light and secondly,

because of existence of smoke affecting the vision due to

its thickness and also by causing irritation to the eyes,

is sought to be established from the witnesses other than

the supporting eye witnesses. It is ironical that the

witnesses who claimed to have seen the offenders have not

been confronted with these aspects – viz. the lack of

light and the existence of smoke and the consequent

impossibility to see or identify anyone from the mob. It

 466

logically follows that it is the person who says that 'he

saw' should be challenged by bringing on record facts

establishing, or at least indicating, inability to see;

and one would ordinarily expect the witness who says 'he

saw' to be questioned in the cross-examination about the

position of light, smoke, etc., etc. The very fact that

this has not been done at all, speaks for itself. The

learned Advocates for the accused apparently felt

comfortable and certain of eliciting such evidence only

from the hostile witnesses who were too obliging.

684. Curiously, in the cross-examination of PI Kanani

[P.W.74], he was questioned on the lack of light,

existence of darkness and smoke and the consequent

impossibility to see or identify anybody from the mob.

Kanani has been criticized on the ground that he did not

ascertain how the eye witnesses could see the rioters in

the dark. It is that the suggestion of the defence that

it was necessary for him to have questioned the witnesses

and gathered information as to how they could see the

culprits. Without putting the eye witnesses who claimed

to have seen, any question about the condition of light,

PI Kanani was put the following question in the cross-

examination, which is worth reproducing here, with the

answer given to it.

'Ques.-In that season, at about 9.00

 467

p.m., when the persons were on

the terrace, to know about the

condition of the light at that

time, was an important aspect of

the investigation. Do you agree

Ans. - No.'

PI Kanani [P.W.74] was then asked the following question

which also, together with the answer given by him, is

worth reproducing.

'Ques.-Do you mean to say that even in

the dark, witnesses would be

able to see from terrace, the

persons who were on the road ?

Ans. - Whether they could be seen or

not, is the concern of the

witnesses, and not mine. If

the witnesses would see, the

witnesses would say that it is

seen. How it could be seen,

is to be answered by the

witnesses. [page 3058]

[Emphasis supplied].

Since PI Kanani's evidence and his so called 'defiant'

attitude has been severely criticized by Shri Shirodkar

and even by Shri Jambaulikar during the arguments, it may

 468

be observed that the second question has been

aggressively put and a wrong claim is attributed to the

witness, though he never meant it. Had the evidence not

been recorded in question and answer form, it might have

resulted in putting the words of the cross-examination in

the mouth of witness though he never meant it. If the

form of a question compels a witness to emphatically

clarify certain matter while answering in order to avoid

an answer not intended to be given by him, being

attributed to him, then he can not be called as rude or

arrogant. Anyway for the present, and in the context,

what is significant is that though emphasis is placed on

the necessity on the part of PI Kanani [P.W.74] to

question the witnesses and know about the condition of

light, about their ability to see from the terrace, etc.,

such questioning to the same witnesses has not at all

been done in the cross-examination. PI Kanani's failure

to ask the witnesses as to 'how it could be seen' was

criticized during the course of arguments, but

surprisingly, when the Advocates for the accused had

opportunity to question the witnesses on this, they all

have chosen to remain silent.

685. In my opinion, all these factors lead only to one

conclusion – viz. that there is no substance in the

contention of impossibility of viewing the persons from

 469

the mob on the part of the witnesses - and questioning

the eye-witnesses – except the hostile ones – was not

thought advisable by the learned Advocates for the

accused. The aspects of darkness on the street, there

being no light, there being smoke, are not at all touched

in the cross-examination of any of the witnesses who

claimed to have seen – i.e. Taufel [P.W.26], Raees

[P.W.27], Shehzad [P.W.28] [Link] [P.W.29] and Sailun

[P.W.32]. When the cross-examiner has avoided asking

questions on the relevant matters to the supporting

witnesses and when the evidence of the witnesses does not

suffer from any improbabilities, there is no reason why

it should not be accepted. The inference that the cross-

examiner thought that the evidence of these witnesses on

these aspects could not be disputed; and that an attempt

to do so would prove dangerous, is legitimate.

686. The above discussion makes it clear that the

evidence on record does not indicate absence of any light

whatsoever, or the existence of such 'dense' or 'thick'

smoke so as to prevent the assailants or persons in the

mob from being seen. On the contrary, the evidence

indicates the existence of light - sufficient; at any

rate - to be able to see the persons [or at least some

persons] in the mob of rioters. It is common knowledge

that fire does create light. In the instant case, there

 470

is no dispute about the magnitude of the fire. The

flames were coming up to the level of the terrace. Not

only the Best Bakery building, but the adjoining house

and the 'wakhar' of Lal Mohammed [P.W.36] was also set on

fire. It is impossible to think that the burning of

these premises would not create sufficient light so as to

enable one to see the persons in the mob. Judging by the

evidence on record, there must have been considerable

light due to the fire that was set up by the rioters.

Thus, apart from the fact that it was very much possible

for the witnesses to have seen the rioters [or some of

them] when the mob came, when the fire took place, the

light that was created by the fire itself, very much made

it possible.

687. The next ground on which the contention of

impossibility on the part of the eye witnesses to have

seen the mob or the persons in the mob is advanced, is

physical inability to see them on the basis of the

topography. It is submitted that Taufel [P.W.26], Raees

[P.W.27], Shehzad [P.W.28] and Sailun [P.W.32] were on

the terrace of the Best Bakery building when the mob of

rioters came; and that it is physically impossible for

anyone to see the mob from the terrace. It is contended

that all these witnesses have deposed, falsely, before

the Court that when the mob of rioters came, they were
 471

sitting on a cot or 'charpaee' kept in front of the Best

Bakery building. The reason for the said false statement

is given as because that was the place from where they

would be in a position to see the persons in the mob. It

is contended that in their statements before the police,

these witnesses had not stated about they being sitting

on a cot or 'charpaee' in front of the bakery. Thus, it

is contended, that there has been a consistent

improvement in the version of all these witnesses; and

that these witnesses are 'shifting' their positions so as

to be able to claim that they could see the mob. This

'improvement' is pressed in service to advance a number

of contentions. Firstly, on this basis, it is contended

that tutoring is established, or at least indicated.

Secondly, it is submitted that this 'shifting of place'

was occasioned by the fact that it would not be possible

for the witnesses to have seen or identified any persons

in the mob had the witnesses been on terrace.

688. The omission on the part of each of these witnesses

to state before the police that they were sitting on a

cot in front of the bakery when the mob of rioters came,

has been brought on record. However, it is clear that

the value of the omission depends on the alleged fact –

viz. that the witnesses could not have seen the mob of

rioters, had they been on terrace at the material time.

 472

689. The entire contention of the defence is devoid of

any merit whatsoever. First of all, there is absolutely

no basis in stating that the witnesses could not have

seen the mob, or the persons in the mob, from the

terrace. How the view or the vision will be affected by

being on the terrace is not indicated. There is also no

basis whatsoever even for holding that sitting on the cot

or 'charpaee' in front of the bakery would afford a

better view of the mob of rioters than the view that

could be obtained by sitting or being on the terrace of

the said building. This very supposition, which is the

basis of the argument, is unfounded. In fact, the

witnesses would be able to see more from the terrace

rather than by sitting on a cot/'charpaee' in front of

the bakery. The visibility would be certainly more from

the terrace, as due to increased hight there would be

less obstructions and a bigger area would be within the

view.

690. The arguments about alleged 'consistent

improvements' and attributing of a motive for the alleged

'shifting of place of sitting' are based only on the

ipse-dixit of the defence. There is absolutely no

evidence to indicate that one would not be able to see

the mob of rioters or some of the persons therein from

 473

terrace. It is based on the premise, which is the own

creation of the defence, that a number of arguments are

advanced. When the premise itself is wrong and baseless,

question of drawing any inference therefrom and coming to

a correct 'conclusion' in that regard does not arise. In

the cross-examination of Taufel [P.W.26], a suggestion

was put to him to the effect that he could see the mob

coming because he had been sitting in front of the bakery

on a 'charpaee' at that time, which suggestion has been

accepted as correct by Taufel [P.W.26]. If it is thought

to establish a negative on the basis of such an admission

– i.e. that if he had been sitting on terrace, he could

not have seen the mob coming -, then, all that can be

said is that such attempt is futile. After the witness

had said that when the mob came, he was sitting in front

of the bakery on a 'charpaee', such an admission from the

witness was only natural, but it cannot even remotely be

suggested that the 'charpaee' was the only place from

where he could have seen the mob coming. One sees a mob

coming because of several reasons – such as it is

actually coming, one has the sight, there is light, etc.

No attempts to establish, by questioning the witness in

the cross-examination that he could not have seen the mob

coming, had he been at a place other than the charpaee,

or on the terrace, have been made. [In this context, it

may be noticed that in case of Yasmin when she mentioned

 474

about having seen Kausarali and Lulla being dragged away

while she was coming down from the staircase, it was

immediately put to her that had she been on terrace, she

could not have seen this.] As already observed, there is

absolutely no basis for this assumption at all. It is

certainly not based on any evidence.

691. There is nothing uncommon or unusual in persons

sitting in front of their residences after having meals

in the night and before going to sleep. Their omission

to state this to the police is insignificant and

immaterial. Where they were sitting, is not significant

and material at all except from the point of view of

impossibility or otherwise of viewing the rioters.

Perhaps, the contention about impossibility to see the

mob of rioters from the terrace has been raised - without

any evidence – only to make the 'omission'/

'contradiction' appear material and significant. Based

on the contention of impossibility of viewing the persons

in the mob from the terrace, a motive is sought to be

attributed to the witnesses for the alleged false claim

of their sitting on the cot/'charpaee' at the material

time. However, all this simply fails for the reason that

the premise on the basis of which the whole argument is

based, is wrong. Not only that there would not be 'no

visibility' or 'no possibility of seeing the mob of

 475

rioters from the terrace', but on the contrary, such

visibility and possibility would be much more than that

from the cot/'charpaee'. In fact, this is established

even by Court's own observation made during the local

inspection. It may be recalled that a prayer for local

inspection was pressed by the defence on this very ground

– i.e. impossibility on the part of the witnesses to have

seen accused at the time of incident. It was

specifically stated that from the terrace of the

building, a person standing below near the building could

not be seen. During the actual local inspection also,

the same thing was canvassed. It was, however, observed

that a person standing on the road could easily be seen

from the terrace through the balusters without requiring

the viewer to get up and see from over the railing. The

memorandum of the local inspection which duly records

this aspect, was furnished to the learned Advocates for

the accused soon after the local inspection, but in spite

of the same, such untenable contention is not only

advanced, but also stretched to an extraordinary length.

Ironically, though the local inspection was carried out

on being insisted by the learned Advocates for the

accused, on a specific claim, that 'a visit by the Court

would prove that none of the witnesses who claim to have

seen the accused could have, in fact, seen the accused',

during the arguments, the only necessity felt by them for

 476

referring to it, was to remind the Court of the legal

position that 'local inspection is not evidence and can

never take place of evidence or proof'.

692. Moreover, the whole argument 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 instant case, the 'mob' is

stated to be consisting of 1000 to 1200 persons and

though the correctness of this figure can be doubted,

there can be no dispute that the evidence points out to a

mob consisting of large number of persons. The area and

the 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 one person in the mob can be at a very far

place from that of another in the same mob. Moreover,

the mob was not standing still and it was moving. The

evidence shows that the mob was there throughout the

night. The eye witnesses were also on terrace throughout

the night. 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 eye

witnesses in their evidence, relates to any particular

point of time. When the witnesses were trapped on the

 477

terrace throughout the night, surrounded by the mob of

rioters, it cannot be said that they could not have seen

the mob of rioters. The evidence of the eye witnesses

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 the witnesses were sitting on the

cot; and that after the eye witnesses went to terrace,

they did not see anyone.

693. During the course of arguments, when some discussion

on this aspect took place, the following answer in the

evidence of Taufel [P.W.26] was pointed out by the

learned Advocates for the accused.

“It is correct that the 3, who have been

pointed out by me as having seen by me

in the night, were seen by me when I was

sitting on the 'Charpaee' and when the

mob was coming with the 'Mashals' and

swords. It is correct that thereafter,

I saw them for the first time only in

the Court, when I gave evidence.”

I am unable to hold that this can be construed as an

admission on the part of Taufel that after going to the

terrace, he did not see any of the accused identified by

him. By emphasizing the word 'thereafter', it is

contended that according to Taufel, he did not see the

 478

said accused after he had seen them while sitting on the

charpaee'. I am unable to accept the same. The very

next sentence in the evidence which reads as 'I had no

occasion to see their photographs during this period of

about 2.1/2 years' makes it clear that by 'thereafter',

the period after the incident is referred to. The

intention to separate or divide the period between the

'period before going to the terrace' and the 'period

after going to the terrace' cannot be attributed to

Taufel and his admission regarding having seen the said

accused for the first time only in the Court while giving

evidence, refers to the fact that he had no occasion to

see them after the incident and before giving evidence.

The incident did not come to an end after Taufel and

others went to the terrace. In fact, if the context in

which the relevant questions have been put in the cross-

examination is seen, there can be no doubt that it was

not even the intention of the cross-examiner to question

Taufel on the aspect as to whether he saw the said

accused after going to the terrace and there is no

possibility of Taufel having understood the question in

that way. Thus, there is no substance in the contention

that the rioters could not have been seen by the

witnesses from the terrace. In fact, touching this

aspect has been carefully avoided in the cross-

examination not only of Taufel, but also of other eye

 479

witnesses, except those who are hostile.

694. To sum up, firstly, the suggestion that from

terrace, the witnesses could not have viewed the mob of

rioters is unacceptable. Thus, this takes away the

motive behind the alleged 'improvement'. It was not

necessary on the part of the concerned witnesses to have

said so, to be able to claim that they saw the rioters

and they could have very well said that they saw the

rioters while on first floor or on terrace.

695. Secondly, there is nothing to indicate that the

version of the eye witnesses to the effect that they were

sitting on a cot/'charpaee' at the material time is

false. The omission to state specifically to the police

that they were sitting on a cot, and/or the contradictory

version to the effect that they were sitting 'upstairs'

when the mob came, is not material, in my opinion. There

is no evidence, except the worthless evidence of the

hostile witnesses, that Taufel [P.W.26], Raees [P.W.27],

Shehzad [P.W.28] and Sailun [P.W.32] were already on

terrace when the rioters came. It is not likely that the

place where the witnesses were sitting at the time when

the mob came, was specifically asked to them by the

Investigating Officer, when, obviously, nothing depended

on that, and further, when, it is difficult to pin point

 480

a particular time as the time when the mob came.

696. Thirdly, on the basis of the evidence of Bhimsinh

Solanki [P.W.66] that 'the street lights in the locality

were not working at that time', no conclusion can be

drawn to the effect that there were no light in that

area; and that there was 'total darkness'. The absurdity

of such a conclusion has already been discussed.

697. Fourthly, the inability of the witnesses to see the

rioters due to smoke fails to take into consideration

that the smoke was due to fire and the fire was set

subsequent to the coming of rioters; and before that,

there was no question of smoke preventing the eye

witnesses from seeing the rioters.

698. Fifthly, even if smoke was there, that it was to

such an extent so as to totally impair the vision – and

that too for all the time till the rioters were there –

cannot be accepted.

699. Lastly, it is ignored that apart from smoke, what

fire creates is light and the terrible fire, as has taken

place at that time, would certainly create sufficient

light so as to negative the theory of impossibility of

viewing on account of lack of light.

 481

700. The conclusion is therefore irresistible that there

is nothing in the evidence which would indicate that it

was not possible for the eye witnesses to have seen or

identified any persons in the mob of rioters. On the

contrary, the evidence indicates that there was every

possibility of the eye witnesses being able to see the

mob – at least some persons in the mob – during the long

time for which the mob was there.

Whether Zahira's statement [Ex.136] is not the 'real'

F.I.R. ?

701. I shall now consider one contention emphatically put

forward by Shri Shirodkar. According to him, Zahira

Shaikh [P.W.41] is not the first informant in the matter

at all; and that her statement [Ex.136] is not the 'first

information report' at all. It is contended that the

real 'first information report' is the statement [Ex.264]

of Raees Khan [P.W.27] recorded by A.S.I. Abhaysinh Patel

[P.W.66].

702. It is well settled that the F.I.R. is not a piece of

substantive evidence. It is to be used only for

corroborating the evidence given by the first informant.

Since in this case Zahira Shaikh [P.W.41] has turned

 482

hostile, the first information report [Ex.136] cannot be

made any use of for corroborating her. According to Shri

Shirodkar, the prosecution is “not willing to accept

Raees Khan [P.W.27], as the 'First Informant', with

oblique intention.” It is contended that the object of

the prosecution is to keep back the statement [Ex.264] of

Raees Khan, as that statement affects the case of

prosecution adversely. Shri Shirodkar also submitted

that showing that Zahira's statement [Ex.136] is not the

real 'first information report'; and that actually, it is

the statement [Ex.264] of Raees Khan that is the F.I.R.,

is important from the point of view of establishing that

the prosecution, from the beginning, has been dishonest;

and that the investigation is tainted, which would be

relevant for the purpose of appreciating the evidence of

the Investigating Officers and even of the other

witnesses.

703. The argument advanced by Shri Shirodkar on the issue

'which is the real F.I.R.', is two-fold. The first is

that the statement [Ex.264] of Raees Khan was recorded

prior to the recording of Zahira's statement, and the

other is that the said statement of Raees Khan had all

the necessary ingredients to characterize the same as the

'First Information Report', as contemplated under Section

154 of the Code.

 483

704. The contention of Shri Shirodkar is that Zahira's

statement [Ex.136] treated as F.I.R. was actually

recorded on 04/03/2002 and falsely shown as having been

recorded on 02/03/2002. However, according to him, even

by assuming that it was indeed recorded and registered as

F.I.R. on 02/03/2002 at 15.15 hours, it would still, not

be prior to the recording of the statement [Ex.264] of

Raees Khan recorded by A.S.I. Abhaysinh Patel [P.W.66].

705. In view of the contentions, it would be appropriate

to first consider as to when the statement [Ex.264] of

Raees was recorded. The evidence that needs to be

examined in this regard is of Raees himself, Abhaysinh

[P.W.66] and [Link] [P.W.70].

706. The statement [Ex.264] itself does not show at what

time it was recorded.

707. Raees Khan [P.W.27] does not admit having made the

statement at all. According to him, on 02/03/2002,

police had come to meet him in the hospital; and that the

police asked him his name, address, etc., obtained his

thumb impression and left. In the cross-examination,

Raees Khan has stated that his thumb impression was taken

after something was written on that paper by the police.

 484

However, when the said document [X-19 for identification,

and later on marked as Ex.264] was shown to him and he

was questioned about the thumb impression on it, Raees

stated that the thumb impression could be his ['may be

mine']. When questioned specifically, Raees Khan stated

that he could not say whether it was the same document on

which his thumb impression was taken. Thus, the evidence

of Raees Khan neither establishes the identity of the

thumb impression on the document [Ex.264], nor the fact

that it is a statement made by Raees Khan. According to

Raees Khan, at that time, he did not say anything about

the incident to the police. Raees has specifically

stated that at that time, he was not fully conscious.

708. According to Raees, it took about 1 to 1.1/2 hour

for the police coming to him, putting questions to him,

writing down on the paper and taking his thumb impression

on that paper; and that all this was over by 12.00 noon.

This time, as given by Raees Khan, is obviously wrong in

my opinion. The evidence shows that till 11.50 a.m.,

Panigate Police Station had not received any information

about Raees Khan and two others being admitted in the

S.S.G. Hospital. Anyway, since the evidence of Raees

Khan does not indicate that any statement of his, about

the incident, was recorded by the police on 02/03/2002,

his evidence about obtaining of his thumb impression

 485

before 12.00 noon, cannot be brought in aid to show the

time of recording of the statement [Ex.264] as at 12.00

noon. The evidence of Raees Khan does not lend any

support to the theory that the statement [Ex.264] was

recorded before Zahira's statement [Ex.136] was recorded.

The evidence of Raees Khan, on the contrary, creates a

doubt whether his statement was at all recorded on

02/03/2002.

709. The sequence of events – together with their

respective timings – leading to the recording of the

statement [Ex.264] of Raees Khan and the respective

timings, is either undisputed, or is sufficiently proved.

Raees and others were admitted in Hospital. Vardi in

that regard was received at Panigate Police Station at

11.50 a.m. Then a memo/note [Ex.263] was written by PSO

Manharbhai [P.W.68] and given to Abhaysinh [P.W.66]

requiring him to go to the hospital and investigate.

Abhaysinh then went to S.S.G. Hospital. He wrote a

communication [Ex.262] addressed to the Medical Officer

on duty seeking to know whether any of the injured was,

or were, in a condition to make a statement. Abhaysinh

gave the communication [Ex.262] to the doctor at about

1.00 p.m. to 1.30 p.m. Thereafter, [Link] [P.W.71]

made an endorsement [Ex.262/1] on the communication

[Ex.262]. In view of the endorsement that patient was

 486

not fit, Abhaysinh waited there for some time. After

about 35 to 40 minutes, Raees became somewhat conscious

when Abhaysinh recorded his statement.

710. After considering all the relevant evidence, it

cannot be doubted that the statement of Raees Khan, if at

all indeed recorded, could not have been before 3.15 p.m.

[Link] [P.W.71] is specific about having made the

endorsement [Ex.262/1] at 2.00 p.m. The document

[Ex.262] shows the time of making the endorsement as 2.00

O'Clock. [Link] has been very specific that whenever

such endorsements are made, the doctors always put the

correct time and date of making such endorsement; and

that they had specific instructions from their Head of

the Department to that effect. [Link] had

categorically stated that in this case also, the same

procedure and same instructions were followed by him.

This is quite acceptable.

711. In the context of the communication [Ex.262] and

the endorsement on it [Ex.262/1], an objection raised by

the defence about the admissibility of the said document,

needs to be mentioned. When the document [Ex.262] was

tendered, the defence objected to the same being tendered

in evidence and exhibited, on the ground that it was a

'carbon copy' and not the 'original'. In view of the

 487

practice directions given by the Hon'ble Supreme Court of

India in Bipin Shantilal Panchal Vs. State of Gujarat and

Another, [2001 Cri.L.J.1254], the said document was

marked as an exhibit, subject to the objection about its

admissibility, on the ground that it was not original,

but a carbon copy. During the course of arguments, this

question – viz. whether the document was admissible in

evidence being only a copy of the original – was

addressed to by the parties. It may be observed that

there is no other objection to the admissibility of this

document, save and except that “it being a 'copy of the

original', is not the primary evidence and no case for

being entitled to give secondary evidence had been made

out”. The contention advanced by the prosecution in this

regard is that it is not a 'copy', but 'another

original'. This is apart from the submissions of the

prosecution that in spite of making efforts, they have

not been able to procure the so called 'original'. The

question is whether a 'carbon copy' is only a secondary

evidence of the 'original', or whether it is 'another

original' ? The mode in which such documents – viz.

carbon copies – come in existence, is well-known; but

apart therefrom, in this case, [Link] [P.W.71] has

explained in his evidence as to how such 'carbon copies'

are prepared. When the document [Ex.262] was shown to

him, he said that it was a carbon copy, and went on to

 488

explain as follows.

“There was a paper. By putting a carbon

paper below that paper and above this

paper, I put the endorsement and made my

signature on the original paper. The

impression of that, has come on this

carbon copy.” [Page 2183 of Notes of

Evidence].

It at once becomes clear that the so called 'original'

and the 'carbon copy', both, have come in existence at

the same time. It is not that there existed some

document which would be original, of which a copy was

later on taken. Section 61 of The Evidence Act lays down

that the contents of a document may be proved either by

primary or secondary evidence and though it is true that

except in the cases specifically provided by the Evidence

Act, documents must be proved by primary evidence,

Explanation 2 to Section 62 of the Evidence Act makes it

clear that 'where a number of documents are all made by

one uniform process, each is primary evidence of the

contents of the rest'. In case of a carbon copy, the

same stroke of pen brings in existence two documents –

viz. one the so called 'original', and the other as

'carbon copy'. It cannot be disputed that the so called

'original' and the 'carbon copy' or 'carbon copies' come

 489

in existence by one single process – viz. a stroke of

writing, or a stroke of a typewriting machine. Thus, in

my considered opinion, 'carbon copies' are primary

evidence of the contents of the 'original'. The document

[Ex.262] is primary evidence. It is properly proved. As

such, the objection to the admissibility of this

document, as raised by Shri Shirodkar, the learned Senior

Advocate, fails.

712. The contention advanced by Shri Shirodkar that

deciding the objection as to the admissibility of the

said document at this stage, has prejudiced the accused,

is not correct. Without going deeper into the general

objection that the practice or procedure as suggested in

Bipin Panchal's case [supra] deprives the defence of an

opportunity to cross-examine the witnesses, it may only

be observed that in this case, it has not happened that

way. The witnesses have been questioned about this

document and even about the endorsement. That [Link]

made his endorsement on the said document is not

challenged. He was made to refer to the endorsement

repeatedly in the cross-examination and has been asked

about the contents of the document [Ex.262] in the cross-

examination. The contents of the documents were freely

referred to in the cross-examination and the witnesses

were questioned with regard thereto. No prejudice has,

 490

thus, been caused to the defence in any manner by

deciding the objection about its admissibility only

during the arguments.

713. The document [Ex.262] and the endorsement

[Ex.262/1], together with the evidence of Abhaysinh

[P.W.66] and [Link] [P.W.71], leave no manner of doubt

that the said endorsement had been made at 2.00 p.m.

Thus, if by 2.00 p.m., no statement had been recorded and

if Abhaysinh, after waiting there for 30 to 45 minutes,

commenced the recording of the statement of Raees Khan,

it is difficult to accept that it was recorded before

Zahira's statement [Ex.136]. According to PI Baria, he

recorded statement of Zahira only in the S.S.G. Hospital

between 1.15 p.m. and 2.45 p.m. This time also properly

fits in with the time of the various relevant entries in

official record, including the entry regarding the

registration of the F.I.R. at 3.15 p.m.

714. Why then, the Advocates for the accused feel so

positive and certain about this aspect – viz. that the

statement of Raees Khan was recorded before Zahira's

statement -, particularly when this fact is neither borne

out from the chargesheet, nor is attributable to the

personal knowledge of any of the accused? It is

interesting to note that this contention has been taken

 491

up on the basis of the evidence recorded in the previous

trial. That this is so, is not in dispute.

715. In the trial held at Vadodara, the statement

[Ex.264] of Raees Khan was, by consent, marked and

exhibited [as Ex.180], curiously, without examining Raees

Khan as a witness. In order to establish that the

statement [Ex.264] was recorded before 3.15 p.m., the

deposition of Abhaysinh Patel [P.W.66], as recorded

during the earlier trial, has been tendered in evidence

and has been marked as Ex.265. The following statements

made by Abhaysinh Patel in his deposition recorded in the

previous trial have been brought on record.

“It is true that till I returned to the

police station with the statement marked

exhibit 180, Police Inspector Shri Baria

had not come to S.S.G. Hospital.” [Portion

marked as A/131]. “When I went to the

police station with the statement marked

Ex.180, I learnt from P.S.O. that no

offence is yet registered in this respect.”

[Portion marked as A/127].

Thus, the claim of the statement of Raees Khan having

been recorded prior to Zahira's, has been made only on

the basis of the above statements of Abhaysinh, as found

in his deposition before the Sessions Court at Vadodara,

 492

in the previous trial. Abhaysinh has denied having made

these statements. When confronted with the statement in

portion marked A/131 [reproduced earlier], he stated that

this portion was not correctly recorded. As regards the

portion A/127 also, Abhaysinh has stated that he never

stated so. Abhaysinh also stated that his deposition

recorded in the Court at Vadodara was not read over to

him. Abhaysinh was then contradicted on that aspect also

by pointing out the endorsement made by the Court

[portion A/125] on the record of his deposition in the

said trial which reads as under,

“Read out before me and as the same is

admitted, it is taken on record.”

Abhaysinh disputed the correctness of this endorsement

also. A question, much to the embarrassment of

Abhaysinh, was put in his cross-examination as to

'whether he meant that the Judge had falsely recorded the

portion marked A/127', to which Abhaysinh replied as

'that I cannot say'.

716. Thus, Abhaysinh has denied the fact of having made

these statements [portions marked A/131 and A/125] and

also truth of the facts conveyed by these statements.

There is a presumption that all judicial acts are

regularly performed. Since the authenticity of the

record of the trial held at Vadodara is not in dispute,

 493

the fact that Abhaysinh did not state so before the Court

of Vadodara, cannot be accepted. Though the bare denial

of Abhaysinh cannot be accepted and it is to be held that

Abhaysinh did make the said statements before the Court

at Vadodara, the crucial aspect of the matter is 'whether

the said statements are true'.

717. The evidential value of these statements should be

considered here. In my opinion, the legal position that

these statements being previous inconsistent statements

made by Abhaysinh, only constitute a ground for

disbelieving his present testimony; and that they are

certainly not the evidence of the facts which are stated

therein, cannot be doubted. It is one thing to hold that

Abhaysinh is not to be believed or trusted as regards the

time of recoding the statement of Raees Khan, as given by

him in his testimony before this Court, in view of the

said statements made by him during the previous trial,

but it is quite another to treat those statements, which

he now repudiates, as a substitute for his present

testimony. In view of this legal position, the only

question that remains is whether Abhaysinh could be

trusted as regards the time of recording the statement of

Raees Khan so as to hold his testimony before the Court

as true, in spite of the said previous statements made by

him.
 494

718. The aforesaid discussion and the record of various

entries contemporaneously made, leaves no manner of doubt

that the statement [Ex.264] of Raees could not have been

recorded before 2.45 p.m., by which time, Zahira's

statement [Ex.136] was already recorded, according to PI

Baria. Assuming Abhaysinh had given evidence in the

Court at Vadodara suggesting that the statement of Raees

was recorded much prior to 3.15 p.m., then all that can

be said is that it is proved to be factually wrong and

incorrect. As such, this does not establish the

contention of the learned Advocates for the accused.

719. In view of all this, I only briefly mention a flaw

in the contention that the statement of Raees is the

F.I.R. It would not have been F.I.R. even if it would

have been recorded prior to the statement [Ex.136] of

Zahira. It is because one of the requirements for any

information to be the F.I.R. is that such information

should be given to the Officer In-Charge of the police

station. Abhaysinh was not the 'Officer In-Charge' of

the police station. This is mentioned just by the way

because in any case, I am of the opinion that the

statement [Ex.264] of Raees, if at all recorded, was

certainly not recorded before recording Zahira's

statement [Ex.136].
 495

720. However, it has also been contended by Shri

Shirodkar that Zahira's statement [Ex.136] was not

recorded at all on 02/03/2002; and that actually, it was

recorded on 04/03/2002.

721. The basis for such a claim is only that a copy of

the F.I.R. was received by the Magistrate on 05/03/2002.

Interestingly, the fact that a copy of the F.I.R.

received by the Magistrate only on 05/03/2002, is not

borne out from any record or evidence adduced in this

case, but it was based on an admission made by PI Kanani

[P.W.74] in the previous trial. Even the said admission

was based not on Kanani's personal knowledge, but on the

basis of a document shown to him while in witness box.

What was that document, cannot be ascertained from the

record. Anyway, it is on the basis of the admission of

PI Kanani, obtained in this manner in the previous trial,

PI Kanani was made to admit this fact in the present

trial also. This admission is the only evidence to show

that a copy of the FIR was received by the Magistrate on

05/03/2002.

722. It may be observed that the question of time and

date of recording of the F.I.R. assumes importance in

many cases for the purpose of appreciating the evidence.

 496

If it is established that the F.I.R. had been lodged

immediately after the occurrence, it strengthens the case

of the prosecution showing that the information contained

in it was available immediately and thereby reduces the

possibility of concoction, fabrication, etc. When the

time of lodging of the First Information Report would be

in dispute, the issue as to when a copy of the same was

received by the Magistrate under Section 157 of the Code,

assumes importance. Under Section 157 of the Code, an

Inspector In-Charge of a police station is required to

forward a report [commonly called as 'occurrence report']

to the concerned Magistrate forthwith. It is common

knowledge that usually the report is sent in the form of

a copy of the F.I.R. as it gives all the necessary

details to the Magistrate. The delay in sending a report

to the Magistrate is relevant for ascertaining whether

the F.I.R. had indeed been lodged at the time when it is

claimed to have been lodged.

723. A number of authoritative pronouncements of the

Supreme Court of India and of the High Court have been

cited on the effect of delay in sending the F.I.R. to the

Magistrate, by the learned Spl.P.P., as also by the

learned Advocates for the accused. It is not necessary

to make any reference to the authorities as the legal

position is well settled. The delay in sending the

 497

F.I.R. to the Magistrate may create a doubt in the mind

of the Court whether the time of lodging the F.I.R., as

claimed, is indeed correct. In such cases, the

possibility of the F.I.R. having been lodged subsequently

or having been tampered with, is required to be kept in

mind. However, it cannot even remotely be suggested that

the time of lodging the F.I.R. has to be proved only from

the fact of the time of its receipt by the Magistrate,

though being an external check of an authentic nature, it

would assume importance. All that can be said is that

receipt of the copy of the F.I.R. by a Magistrate is a

surer way of establishing that by that time, the F.I.R.

had already been lodged.

724. In the instant case, it is not in dispute at all

that the police had come to the scene of offence itself

and in fact, that is how the incident ended. The victims

– including Zahira – were with the police on the spot

itself and even thereafter in the hospital. The

suggestion that no F.I.R. was lodged at that time, is too

ridiculous to be taken seriously. It is a different

matter to contend that the previous document had been

fraudulently altered or suppressed, but it is quite

another to say that no F.I.R. had been lodged at all till

05/03/2002. In this case, the evidence of PI Baria

[P.W.72] and Head Constable Jagdishbhai Choudhary

 498

[P.W.70] is fully corroborated by the entries [Ex.278]

made in the station house diary. In the circumstances of

the case, when the victims were with the police and the

police had taken cognizance of the happening of such an

incident that they would omit to record the F.I.R. is

something which is unacceptable. The entries in the

station house diary do have a continuity and even if one

would want to manipulate the same, the manipulation that

would be possible can only be limited. A statement

recorded on 04/03/2002 cannot be certainly shown as

having recorded on 02/03/2002.

725. Much displeasure is expressed by Shri Shirodkar

regarding certain observations made by the Court in

respect of his cross-examination of Head Constable

Jagdishbhai Choudhary on the aspect of sending a copy of

the F.I.R. to the Magistrate. Jagdishbhai Choudhary had

explained the procedure in that regard and had stated

that the responsibility of sending the reports to the

Magistrate and the special reports to the superior

officers of the police, is on the P.S.O. who makes the

relevant entries. Jagdishbhai, it may be recalled, had

made the necessary entries [Ex.278] in the station house

diary regarding the registration of the F.I.R. He had

not stated that when actually it was sent to the

Magistrate. He had merely explained the procedure and

 499

had stated that in a routine manner, a person who is

deputed for that, takes a copy of the F.I.R. to the

Magistrate. He had also explained that he had not

specifically told any particular policeman to take the

copy of the F.I.R. to the Magistrate and had made it

clear that it was a routine duty. Thus, the evidence of

this witness was only to this effect – i.e. the police

station has got machinery for taking copies of the F.I.R.

to the Magistrate and in a routine manner, this duty is

discharged by the policeman to whom it is entrusted.

This witness did not say when F.I.R. in this particular

case was actually sent to the Magistrate, or when it had

been received by the Magistrate, or through whom it was

sent, etc. In spite of this, he was questioned whether

he had anything to show that the F.I.R. in this case was

sent to the Court and if so, when and by whom, it was

sent. Jagdishbhai clearly answered as 'No'. He was then

again questioned whether he had anything to show as to

when the copy of the F.I.R. in this case was received by

the Magistrate. When he said that he did not have such a

record at that time, Shri Shirodkar insisted that the

learned Spl.P.P. should produce the record showing when

the copy of the F.I.R. was sent to the Magistrate under

Section 157 of the Code. At that time, by the Court Note

recorded, it was observed that the insistence that the

prosecution should be called upon to cause production

 500

showing that the F.I.R. was forwarded to the Magistrate,

was absurd. Shri Shirodkar contended that the word

'absurd' came to be used by the Court because the full

entry [Ex.278] made by Jagdishbhai was not shown to the

Court; and that the portion thereof showing that a report

under section 157 of the Code was forwarded, was not

pointed out to the Court. For this, he has blamed the

learned Spl.P.P. and has submitted in the written

arguments filed by him that the stigma of the harsh

observation should be removed by censuring the conduct

of the prosecution.

726. I do not think that the observation about insistence

of Shri Shirodkar being 'absurd' was made because a few

lines showing that the copy of the report under Section

157 of the Code was forwarded to the Magistrate were

missing from the translation of the copy of the entry

[Ex.278] provided by the learned Spl.P.P. It is a fact

that the witness never claimed any specific knowledge

about the copy of the F.I.R. actually having been sent to

the Magistrate. He admitted, that he did not know when

it was sent, by whom it was taken, when it was received

by the Magistrate, and categorically stated that this is

done in a routine manner. He had categorically answered

that he had nothing to show that the copy of the F.I.R.

in this case was sent to the Magistrate. In spite of

 501

this, there was an insistence that the learned Spl.P.P.

should be called upon to produce the relevant record

showing that a copy had been sent to the Magistrate under

Section 157 of the Code. It cannot be disputed at all

that the witness never made a claim that it was sent to

the Magistrate actually, or that he had any knowledge in

that regard. An attempt was being made during his cross-

examination to 'refute' a claim not made by the witness

at all, and this resulted in the relevant observation.

In view of the discomfort felt and expressed by Shri

Shirodkar about the expression 'absurd' used by the Court

in relation to the said insistence, I have had a second

look at the matter. Even then, I find that the

insistence was not at all justified and the Court Note in

that regard [on pages 2174, 2175 and 2176 of the Notes of

Evidence] is eloquent. By using the said expression no

remarks have been made against the learned Senior

Advocate, and no disrespect to him was intended; but it

was the insistence in question, that has attracted the

expression 'absurd'. Apparently, Shri Shirodkar was

expecting an answer that the copy of F.I.R. was received

by the Magistrate on 05/03/2002, which the witness could

not say, having no knowledge about it. Had Jagdishbhai

claimed that the F.I.R. had been sent to the Magistrate

on 2nd or 3rd, which was probably expected by the learned

Advocates for the accused, the insistence that the record

 502

showing that to be produced would have been justified. I

do hold an opinion that it was absolutely uncalled for to

insist for the production of the record showing when the

Magistrate had received the copy of the F.I.R. in this

case during the cross-examination of Jagdishbhai who

accepted that he had no knowledge of it actually having

been sent, let alone the time of sending it.

727. Coming to the point, so far as the present case is

concerned, the delay in receipt of the F.I.R. by the

Magistrate is satisfactorily explained. I avoid

discussion on the lengthy cross-examination of PI Kanani

on this aspect, which is proved to be irrelevant. It may

only be observed that PI Kanani has given fitting replies

to various uncalled for questions and his cross-

examination on that point has failed to establish that

the delay in receipt of F.I.R. by the Magistrate was due

to the fact that it had been sent late; and that late

sending was because, earlier, it was not in existence at

all. The evidence of PI Baria [P.W.72] clearly

establishes that the duty Constable had gone to the

Magistrate on 03/03/2002 and at that time, he had taken

the copy of the F.I.R. to the Magistrate. PI Baria has

said that due to the riots that were going on in

Vadodara, Curfew was in force, the Courts were closed and

all the arrested accused in Vadodara city were being

 503

produced before a single Magistrate who was by being at

the circuit house, receiving all the correspondence

addressed to all the Magistrates. In the situation that

was prevailing at the material time, the normal working

of the Court or Magistrate was certainly affected as

clearly stated by PI Baria and therefore, if the

acknowledgement shows date 05/03/2002 as date of receipt

of the F.I.R., it does not necessarily follow therefrom

that it had been sent to the Magistrate on the same day.

In any case, there is much other evidence to show that

the F.I.R. had been lodged on 02/03/2002 itself and the

copies of the same were sent to superior police officers.

728. I have no hesitation to conclude that the contention

that the F.I.R. [EX.136] was recorded only on 04/03/2002,

has no substance at all. The evidence about its time and

date is convincing and reliable. It cannot be overlooked

that the police having visited the scene of the offence

and having come in contact with the victims, having

admitted the injured in the hospital, having drawn

inquest panchanamas in respect of dead bodies, could not

have afforded not to record the F.I.R.. Further, that

the statement of Raees is the actual F.I.R.; and that it

was being suppressed, is also without any substance. It

may be observed that if the entire thing was to be

manipulated, as suggested by the learned Advocates for

 504

the accused, the information in Ex.136 could have been

incorporated in the statement of Raees also. It is not

as if only by lending the name of Zahira to a concocted

and manufactured statement that the investigating agency

could succeed in their alleged wicked design of

implicating the accused. It could be done by projecting

somebody else – Raees also – as the first informant. The

whole contention based on the alleged attempt of the

prosecution to suppress the statement of Raees is

unsound. The question is, if it was to be suppressed,

why was it included in the chargesheet ? In fact, it

appears to me that the statement of Raees is probably not

a genuine record at all. I shall now discuss the reasons

for holding this view, one by one.

a] After going to S.S.G. Hospital, Abhaysinh

[P.W.66] gave the communication [Ex.262] in

order to let him know whether the injured were

in a position to give statement or not [the

discrepancy in the name of Raees who has been

referred to as 'Rafiq' in this communication is

immaterial and the identity is established from

the E.P.R. number. In fact, no dispute on this

has been raised.]. [Link] [P.W.71] made

endorsement [Ex.262/a] to the effect that

'patient is not fit to give DD at present'.

This endorsement was made at 2.00 p.m.

 505

According to Abhaysinh, after having waited in

the hospital for sometime, he recorded the

statement of Raees as by that time, he had

become 'somewhat' conscious. The plausibility of

this version needs to be examined. It does not

seem likely that Abhaysinh would record a

statement of Raees without again consulting the

doctor. He had an endorsement with him to the

effect that the patient was not fit and if in

spite of such endorsement, he would record the

statement of the same person without again

referring the matter back to the doctor, the

value of the statement would be open to

challenge. This Abhaysinh would be expected to

know.

b] This is particularly so because the

document [Ex.262] itself shows that the Medical

Officer was requested 'to kindly inform the

police station on telephone as and when the

patients would be in a condition to give

statement'. Thus, the intention of Abhaysinh is

clear. He wants to record the statement of the

patient only after he would be certified to be

fit for that purpose. He wants the doctor to

inform the police station as soon as the

 506

concerned persons would be in a condition to

give the statements. This portion [A/128] in

Ex.262 was specifically put to Abhaysinh in the

cross-examination and he admitted that as per

the said portion, his expectation was that the

doctor should inform when any of the said

persons injured would be in a position to make a

statement, by telephoning to the Panigate Police

Station. When this was the position, it is

difficult to accept that Abhaysinh would

thereafter record the statement on his own,

without waiting for the medical opinion. In

fact, the portion A/128 is indicative of

Abhaysinh's intention not to wait any longer at

the Hospital.

c] A further doubt is felt because of the

failure of Abhaysinh to obtain an endorsement

from the doctor even after recording the

statement [Ex.264]. It was possible for him to

contact [Link] or any other doctor after he

had recorded the statement [Ex.264] of Raees and

get confirmation from the doctor of he being

conscious and fit to make the statement at that

point of time.

d] The contents of the statement [Ex.264]

 507

also make me doubt the authenticity and

genuineness thereof.

The statement shows that Raees told Abhaysinh

that 'they were brought to government hospital

turn by turn'. He is supposed to have further

stated, “presently, I am in D/4 ward and Cot

No.12 for medical treatment and presently, I am

under medical treatment and I am in fully

conscious state'. In the condition in which

Raees was at that time, it is difficult to

believe that he would know and give the details

of the ward number, cot number, etc. Raees,

admittedly, has not been able to give the names

of his colleagues. The other two persons who

are mentioned in the relevant vardi are Sailun

[[Link].1717] and Ramesh @ Raju

[[Link].1718]. The Vardi that was received by

Rameshbhai [P.W.16] from [Link] Robin [P.W.46]

shows that only the name of Raees was

ascertained [though wrongly described as

'Rafiq'] and the other two whose names were not

revealed at that time. They were described as

'unknown'. In other words, Raees had not been

able to give their names. That the person who

could not give the names of his colleagues,

would be able to give the ward number and cot

 508

number, is difficult to believe.

e] According to Abhaysinh [P.W.66], the

statement [Ex.264] of Raees and the

communication [Ex.262] to the Medical Officer

was handed over by him to PI Baria on 10/03/2002

along with the hospital vardi [Ex.263]. In the

cross-examination, it has been brought on record

that the endorsement [Ex.263/1] which is in

respect of handing over the documents, does not

speak of the statement [Ex.264] of Raees and the

communication [Ex.262] to the Medical Officer

also being returned along with the document

[Ex.263]. What the endorsement shows is that

only the document [Ex.263] was being returned.

According to Abhaysinh, he handed over all the

papers together but while writing, a mention of

the other documents remained to be made. Thus,

the entry does now show that the statement of

Raees and the communication to Medical Officer

containing his endorsement was also returned to

the police station on 10/03/2002. This has been

brought on record by the defence. However, what

they expect to be inferred from this, is not the

same that I think to be the proper inference.

According to Mr. Shirodkar, since the

endorsement [Ex.263/1], which is dated

 509

10/03/2002, does not show the statement of Raees

and the communication of doctor also being

returned along with the document [Ex.263] the

documents [Ex.262 and Ex.264] must have already

been handed over to the police station on

02/03/2002. I am unable to come to such a

conclusion. If the endorsement [Ex.263/1] does

not show that the statement [Ex.264] of Raees

and the communication [Ex.262] to doctor were

being returned on 10/03/2002, the inference may

be that they were not being returned along with

the document [Ex.263]; but the inference will

not be that they had been returned on 02/03/2002

itself. It does not seem likely that Abhaysinh

would preserve the document [Ex.263] which

contained a direction to him to go and

investigate, but would not preserve the

documents which came in existence pursuant to

the said direction given to him. It is on the

basis of direction contained in Ex.263 that he

goes to the hospital, communicates with the

doctor, obtains endorsement of the doctor,

records statement of Raees and then hands over

simply the statement of Raees and the

communication of doctor to the P.S.O. on

02/03/2002 while preserving with him the

 510

document containing direction to him, is

difficult to accept. As a matter of fact,

without the document Ex.263 it would be

difficult to understand what the documents

Ex.262 and Ex.263 are. In what connection, the

statement Ex.264 had been recorded could not be

understood at all without the document [Ex.263]

and therefore, he would only hand over Ex.262

and Ex.264 to the P.S.O., on 02/03/2002 and

would retain with him Ex.263, cannot be

accepted. In my opinion, in all probability,

the statement of Raees was not in existence at

all and all that Abhaysinh had done was to

secure his thumb impression so that in case of

his death, it could be used as a dying

declaration. This is clear from his evidence

whereby he expected to record a dying

declaration. Thus, I do agree that the

statement of Raees was probably not returned to

PI Baria on 10/03/2002, but I refuse to draw an

inference therefrom that it had already been

returned on 02/03/2002.

This view is strengthened by the fact that the

condition of Raees does not appear to be such

that his statement could be recorded. At 2

 511

O'Clock, [Link] had declared him to be unfit.

In his evidence, PI Baria [P.W.72] has also

stated that on 02/03/2002, he could not record

the statements of any of the injured as none of

them were in a position to make a statement. PI

Baria had categorically stated that he went to

D/4 ward but none of the injured was in a

condition to make any statement [page 2244 of

the N.O.E.]. This is consistent with the

evidence of [Link]. Under these

circumstances, for a short while, Raees became

alright so that Abhaysinh could record his

statement, is difficult to believe.

729. My conclusions, as a result of a careful

consideration of the contentions and analysis

of the evidence in that regard, are as

follows:-

i] There is no substance in the contention that

the statement [Ex.264] of Raees was recorded

before recording the statement [Ex.136] of

Zahira.

ii] The statement of Zahira had been recorded on

02/03/2002 itself and there is no substance in

the contention that the statement of Zahira had

 512

been recorded on 04/03/2002. The basis for this

contention is only the receipt of the occurrence

report by the Magistrate on 05/03/2002, and the

evidence regarding the date of receipt is only

Kanani's admission to that effect, which again

is based on his admission made during previous

trial. The admission during the previous trial

was based not on Kanani's knowledge of the fact

admitted, but on the basis of some document [not

marked] shown to him while in the witness box.

iii] The contention that the prosecution was

deliberately not bringing forward the statement

of Raees as the F.I.R., is also without any

substance.

iv] On the contrary, the statement [Ex.264] of

Raees appears to be not a true or genuine record

at all. It had probably not been recorded at

all on 02/03/2002 and in any case, Raees was not

in a condition to make a proper statement on

02/03/2002.

v] There was no intention on the part of the

investigating agency to 'suppress' the statement

of Raees, in as much as, they have included the

same in the chargesheet.

vi] Zahira having turned hostile, there was not

 513

much to be bothered for the learned Advocates

for the accused whether her statement was made

first or statement of Raees was made first.

This contention appears to have been taken and

stretched too an extraordinary length because of

the need felt to support the theory of Zahira

not having complained at all, Zahira not having

expressed any grievance about the trial at all

and Zahira not having sought any retrial at all.

730. Before proceeding further, a contention raised by

Shri Mangesh Pawar, the learned Advocate for accused

nos.16, 17, 18, 19 and 21, about it not being the

statement of Zahira, or that it not having been recorded

at the time when PI Baria claims to have recorded it, may

be examined.

731. The F.I.R. [Ex.136] mentions about the death of

Baliram. According to Shri Pawar, the fact of death of

Baliram was revealed only in the evening. That Baliram

was described as 'unknown male' at the time of his

admission in the hospital and he was identified as

Baliram only after the inquest panchanama was drawn

between 18.15 hours to 18.45 hours. Therefore, the FIR

[Ex.136] must have been recorded after 18.45 hours. This

contention is without merit. It is impossible to hold

 514

that it is only when the inquest panchanama was drawn,

the body was learnt to be of Baliram, or that the fact of

the death of Baliram was not known to anyone before that.

The evidence shows that Baliram died at 1400 hours.

Zahira was in the S.S.G. Hospital at that time. The

recording of the F.I.R. was going on at that time. When

Baliram died, it was not only possible but quite likely

for the others in the hospital to have come to know about

his death. That till the inquest panchanama was drawn,

his identity would not be established, is incorrect. The

procedural formalities would naturally be required to be

completed and possibly, till somebody would formally,

under a panchanama, identify the body, the records of the

hospital wherein Baliram was described as 'unknown' would

not be changed; but that does not mean that Zahira was

unaware of the death of Baliram before the inquest

panchanama.

732. What cannot be lost sight of, is the fact that it

was not necessary for the investigating agency to have

falsely projected Zahira as the first informant. The

contention is that the FIR which gives the names of some

of the accused as the offenders is concocted and is a

creation of PI Baria. This contention is one of those,

which, when tested by ordinary experience and

intelligence appear so improbable that they are to be

 515

forthwith rejected. If PI Baria wanted to do all this

manipulation, why could he not insert the same matter in

the statement [Ex.264] of Raees, is something about which

no comments are offered by the learned Advocates for the

accused. An examination of the evidence has revealed how

the contention about Raees being the first informant and

the prosecution dishonestly suppressing the real F.I.R.

to make Zahira the first informant, is imaginary and

baseless. In fact, the truth appears to be that a

concocted and bogus statement of Raees was inserted in

the charge sheet, which was definitely not done for

falsely implicating the accused.

Whether there was one unlawful assembly or more? What

was the object of such unlawful assembly or assemblies ?

I shall now consider some contentions advanced by Shri

Jambaulikar, learned Advocate for accused nos.1 to 5, 10,

11 and 12.

733. It is submitted that the identity of the unlawful

assembly as the same that was in the night and in the

morning, is not established. According to him, since

when the police came in the night the mob fled away and

gathered again after the police went, there were two

separate unlawful assemblies. It is submitted that the

 516

'object' of the unlawful assembly has to be determined

with respect to each such assembly that was formed during

the period from the night to morning.

734. The contention of there being different assemblies

in the night and in the morning, is advanced on the basis

that 'there is no evidence to show that every member of

the unlawful assembly was continuously present therein

from night till morning'. I am not impressed by this

contention. Unlawful assembly is defined in Section 141

of the I.P.C. An assembly of five or more persons

actuated by and entertaining one or more of the common

objects specified by the five clauses of the said section

is an unlawful assembly. If the relevant provisions are

studied and the object behind the same is grasped, it is

clear that the possibility of the composition of the

unlawful assembly changing during the period its members

commit offences, always exists. It cannot be assumed,

while speaking of an unlawful assembly, that at no point

of time, its composition would change; and that all the

members forming it, would remain the same till it is

finally dissolved. It cannot be suggested that even if a

single person from an assembly of - say 1000 to 1200

persons,- changes, there comes into existence another

unlawful assembly. The composition of the unlawful

assembly might change, but still, the unlawful assembly

 517

would be the same, capable of being identified as such.

It is the continuity and identity of common object that

would determine whether the unlawful assembly is the same

or not, and not whether each and every person

constituting it was same all the time. In any case, this

is rather academic. Every member of an unlawful assembly

would be guilty of offences committed in prosecution of

the common object of the assembly only if, at the time of

committing of those offences, he would be a member of the

same. Thus, I fail to see how the change in the

composition of the assembly would make any difference in

the penal liability to be fastened on an individual

accused, because, for fastening such liability on him, it

must be shown that he was a member of the unlawful

assembly at the time when the offence in question was

committed.

735. In the instant case, there is evidence not only of

the supporting witnesses but even of the hostile

witnesses, including [Link] Bhatt [P.W.43] and

Kanchan Mali [P.W.44] -, that the mob that assembled in

the night never went away. That, it continued to remain

there throughout the night till the incident itself

terminated by the arrival of the police in the morning.

In this case, the common object of the unlawful assembly

is not in doubt or dispute at all. The object is made

 518

clear by the slogans which they were giving and the acts

which they committed. It is also clear from the motive

that is behind the offences in question. There is an

identity of the object of the unlawful assembly right

from the night till the morning. It is not possible to

hold that there were different assemblies in the night

and in the morning, though it is perfectly possible that

the composition of the assembly was not exactly the same

and identical, throughout the period. In my opinion,

even if there would be a number of changes in the

composition, still, it is to be treated as a single

unlawful assembly by reason of the continuity of its

activities and identity of the object. Further, there

might be temporary absence of some of it's members and in

some cases, a particular member of the assembly might not

be present at all in the morning. As aforesaid, it,

however, is immaterial, in as much as, if an accused is

to be held guilty for the offences that were committed in

the morning, that he was present in the unlawful assembly

at that time, is required to be established. If this is

not established, then that accused who was present only

in the night and had left the unlawful assembly in the

night itself, would not be punishable for the offences

committed by the members of the unlawful assembly in the

morning. The moment a member disassociates from the

membership of the unlawful assembly, his responsibility

 519

or liability for the acts committed by the unlawful

assembly thereafter comes to an end; and therefore, the

anxiety or apprehension that an accused would be wrongly

held liable for the acts done by the unlawful assembly in

the morning, though he himself had left the unlawful

assembly in the night itself is uncalled for. Whether a

particular accused had left the membership of the

unlawful assembly at a particular point, is however a

question of fact to be decided, like any other matter, on

the basis of evidence in that regard.

736. Interestingly, in this case, the members of the

unlawful assembly have committed capital offences, both

in the night as well as in the morning. Apart from the

fact that Kausarali and Lulla appear to have been

murdered in the night, the act of setting on fire a

dwelling house occupied by several persons is indicative

of an intention - or at least the knowledge - necessary

to constitute the offence of murder, in case of death

being caused, on account of the fire so set.

737. Another argument - somewhat connected with the

earlier argument- is that the object of the unlawful

assembly in the night might be only to set fire to the

building and not to kill anyone. In support of this, a

contention is advanced as 'why the members of unlawful

 520

assembly did not go up and kill the inmates'. The

argument is that if the object of the unlawful assembly

was to kill, then nothing would have prevented them from

going up and killing the inmates, to achieve or

accomplish the object. This argument is without any

force. An unlawful assembly, though does possess a

common and unlawful object, is not necessarily governed

by any fixed and planned programme. It does not

necessarily have one Commander who takes the decisions,

as in the case of a legal force such as police force.

The object is common and it is to be accomplished, but

the methods are, to a large extent, left to the members

concerned, to be decided on the basis of what would

happen on the spot. It is in evidence that it was not

easy for a large number of persons to enter inside the

Best Bakery building at one time. The passage for making

entry, which was by the side of the main gate, was,

admittedly, narrow. Though the rioters were in a big

number, those who would enter from that passage, or any

other door or window, certainly ran the risk of being

attacked by the inmates. It would be therefore much

easier for them to set the entire building on fire for

the purpose of achieving the object. Again, it must be

remembered that there was no specific object to kill any

specific person or specific number of persons; and

setting the house on fire was the easiest and most

 521

convenient way of causing danger to the inmates with

minimum danger to the rioters themselves. It would also

additionally cause damage to the property itself and

create more terrible impact or fear in the minds of all

concerned. The argument that, 'that they only set the

whole building on fire but did not go inside and kill the

inmates, shows that the object of the unlawful assembly

was not to kill', is ridiculous. It was a dwelling house

and as the evidence shows, the members of the unlawful

assembly were clearly aware that a number of persons had

been trapped in the house. It is, in spite of this, that

the whole house was set on fire. Keeping in mind the

ingredients of the offence of murder, it cannot be said

that the object of the unlawful assembly was not to take

away the lives of any persons, but merely to set on fire

the building. The weapons possessed by them are also

indicative of the object.

738. It also can not be ignored that communal riots

started as a reaction caused by the belief that Kaar

Sevaks had been burnt to death by Muslims. The riots are

said to be a retaliatory action and therefore, there is

nothing surprising if method of burning is adopted for

killing people.

739. Psychologists have indicated that to burn anyone to

 522

death is an easy form of murder. It does not need a

weapon and there is no evidence left behind. This is the

easiest way to inflict pain and there is no physical

contact between the assailant and the victim. The

argument advanced by Shri Jambaulikar, is therefore,

without any merit.

740. It is next contended the object was not, 'to kill

Muslims' and that, this is clear from the evidence of Lal

Mohammad [P.W.36]. It is contended that the evidence of

Lal Mohammad [P.W.36] should be accepted in its entirety,

the same being absolutely truthful. It is contended,

that if the object was to kill Muslims, how Lal Mohammad

[P.W.36] was spared ? I am not impressed by this

argument either. It is clear from Lal Mohammad's

[P.W.36] own evidence that he did not come in contact

with the members of the unlawful assembly, at any rate,

while the assembly was committing acts to accomplish it's

objects. It is not that any individual member of the

assembly would instantly kill any Muslim as soon as such

Muslim would come in contact with him. It is only when

the collective action of the assembly is taking place and

where he is supported by numerous other persons, that he

would be instigated to commit such acts. It is well

recognized that when an individual is a part of the mob

he loses his identity and takes on the identity of the

 523

mob. This is termed as de-individualization by

psychologists and once this sets in, any person, however

mild or aggressive he may be, does what the mob does.

This is often witnessed during riots. An individual

comes up with the strongest possible expression on such

occasions only while in the mob of rioters. As such,

nothing turns on the fact that Dinesh, though came in

contact with Lal Mohammad and others, did not kill them.

Even otherwise, this would be relevant only for

determination whether Dinesh - accused no.15 - was indeed

a member of the unlawful assembly and this aspect will be

considered at an appropriate place; but Lal Mohammad's

[P.W.36] evidence cannot be interpreted in a manner so as

to suggest that the object of the unlawful assembly was

not 'to kill Muslims'. The absurdity of this contention

can be made more clear by addressing to the question as

to why were the Muslims, then, attacked ?

Some general arguments

741. It is next contended that the absconding accused

Jayanti Gohil [original accused no.6] has been falsely

implicated; and that the evidence shows that he was on

duty at the material time. The contention is then

developed that 'if Jayanti is falsely implicated, then

what is the guarantee that others are not falsely

 524

implicated'; and 'that, this casts a doubt on the

prosecution case'. This argument has no force at all and

is to be mentioned only because it is raised. First of

all, there is nothing to indicate that Jayanti has been

falsely implicated. There is no evidence which shows

that Jayanti was on duty at the material time. No such

evidence has been adduced by anyone. The basis of the

alleged false implication of Jayanti is the statement of

PI Kanani [P.W.74] to the effect that during the course

of investigation, it was communicated to him that Jayanti

was on duty at the material time. PI Kanani [P.W.74] has

said that this - that Jayanti was on duty - was false.

The source of the information to the effect that Jayanti

was on duty, has not been examined as a witness, either

by the prosecution or by the defence. It is surprising

that in spite of this, such an argument should be

advanced by Shri Jambaulikar.

742. It is also contended that DCP Piyush Patel [P.W.67]

cannot be believed when he states that certain facts were

stated to him on the spot by the three ladies - members

of the family of Habibulla Shaikh. This contention is

based on the claim that the facts - which he states, as

were stated to him on the spot by those women - would

require about half an hour's time to be narrated. I do

not agree with this at all. What was narrated has been
 525

clearly stated by him in his evidence and in my opinion,

it would take only about 2 to 3 minutes to narrate. By

no stretch of imagination, one would think that this

narration would take half an hour's time. What is more

interesting is that there is nothing to show that half an

hour's time was not available to these women, or to DCP

Piyush Patel [P.W.67]. This contention is therefore

baseless and deserves to be rejected forthwith.

743. It is also contended that Zahira's statement - i.e.

F.I.R. [Ex.136] - does not speak of having mentioned

names of the culprits to DCP Piyush Patel [P.W.67] and PI

Baria [P.W.72]. Based on this, it is contended that no

such incident has actually taken place. There is no

substance in this contention also. First of all, the

statements were made by Zahira to DCP Piyush Patel

[P.W.67] and PI Baria [P.W.72]. PI Baria himself

recorded the F.I.R. That the statement was made by

Zahira, was known to PI Baria; and that it is so known,

was obviously known to Zahira. The idea behind such

communication could be only to make other person aware of

the fact communicated. When Zahira knew that PI Baria

knew about it, there was absolutely no reason for her to

mention again to PI Baria that “I came to you and I told

you ...... etc., etc.”. Secondly, 'giving of the names

is very important', as is sought to be made out, is not

 526

entirely correct. Zahira's statement was to be recorded.

It has been recorded and in that, she has given the

names. When there was to be a written record of what

Zahira stated, the fact that a short time before, it was

orally said by her, would be absolutely meaningless. It

is clear that this statement of Zahira, made orally, has

assumed importance now because Zahira turned hostile.

At the time when the F.I.R. was registered, there was

hardly any reason to give any importance to the fact that

orally, Zahira had said that. The facts orally stated by

Zahira are already recorded in the F.I.R. and ordinarily,

one would not have even touched the aspect of her a

little earlier, having narrated the facts. All this has

arisen because of Zahira's denial of having lodged a

report. Thus, the importance to the alleged oral

statement is due to Zahira's denial of having lodged the

F.I.R., which could not have been anticipated at that

time so as to specifically record in the F.I.R.

simultaneously with writing the said names therein, that

“I had given you the names before, at the spot, etc.”.

744. Another contention that is advanced is that the

story of tying of the limbs by ropes is not true. This

is based on the fact that no ropes were seized by the

police during the investigation. The contention is that

had those persons indeed been tied by the ropes, the

 527

police would have certainly seized the ropes and the very

fact that the ropes are not seized, shows that they were

not tied. I find no substance in this contention. There

is no challenge to the evidence of the supporting

witnesses in that regard. There is no challenge to the

evidence of PSI [Link] [P.W.63] who says that he and

his staff untied the ropes. Moreover, a rope is seen

lying on the ground in the video cassette [Ex.283]. When

this was pointed out, what is contended is that

sufficient number of ropes, as would be required for

tying 9 persons, are not seen in the video cassette

[Ex.283]. This is ridiculous. The entire scene of the

offence, at one stretch, is not seen on the screen when

the video cassette [Ex.283] is played. Moreover, if the

police and witnesses have concocted the theory of tying

by ropes, which could be the only other possibility, the

police could have certainly supported such false claim by

bringing ropes, which would not be difficult to procure.

Further, the fact that an article was not seized, though

relevant, means that it was not there, should not be

advanced with respect to this case at least. It is

because admittedly, the clothes of the victims -

obviously stained with blood - were also not seized in

this case, but one would hardly think of advancing an

argument - and none is advanced - that they were not

wearing any clothes at all.

 528

745. Another contention advanced by Shri Jambaulikar is

that the morning incident, as mentioned by the witnesses,

cannot be believed as it is not likely that things have

happened that way. The argument advanced by him is that

the mob would not wait till all these witnesses would

come down by the ladder and as soon as any person would

come down, he would be attacked and killed. According to

him, there was no reason for the mob to have waited to

assault till all the inmates of the building got down

from the terrace. There is no substance in this

contention. The answer to the question posed by Shri

Jambaulikar is easy. If one would be attacked as soon as

he would come down, the others would not climb down at

all. It was, therefore, natural that the mob would wait

till all got down before attacking anyone. The

psychology and the reactions of the mob cannot be put

into any set formula or pattern; but apart from this, in

the circumstances, it was only natural on the part of the

mob to wait till all got down.

746. It is also contended that the theory of tying of the

hands and legs should not be believed because it would be

contrary to the psychology of the mob. According to Shri

Jambaulikar, the mob would attack the victims immediately

and would not waste time in tying hands and legs, etc.
 529

This contention has also no substance. It is difficult

to try to lay down what the mob would do, and any attempt

in that regard, would not be proper. Even otherwise,

from the point of view of broad probabilities also, this

does not seem correct. The mob would naturally first

make the victims feel helpless. Tying hands and legs is

a way of humiliating, frightening and making them

helpless.

747. All the contentions raised on behalf of the accused

persons, save and except the contentions about

reliability of the identification evidence, have been

considered by me. The specific contentions regarding the

evidence to connect the accused persons with the alleged

offences shall be separately discussed. The above

discussion leaves no manner of doubt that the Best Bakery

building, wakhar of Lal Mohammad [P.W.36], house of Aslam

[P.W.42], vehicles, etc., were indeed set on fire by a

mob of rioters.

748. That the mob of rioters had surrounded the Best

Bakery building and that the mob was throwing stones,

bricks, bulbs, soda water bottles, petrol/kerosene filled

bulbs/bottles, etc., towards the building, is also

satisfactorily established.
 530

749. The evidence shows that the burnt bodies of 3 women

and 4 children, which were brought down from the first

floor of the Best Bakery building after the arrival of

the fire brigade, were sent to the S.S.G. Hospital. The

memorandum of the post-mortem examinations on these,

bodies make it clear that the said 7 persons had died an

unnatural death as a result of the burn injuries. The

burn injuries were sustained on account of the fire that

had been set to the Best Bakery building.

750. That Nafitulla [P.W.31], Nasibulla [P.W.30], Taufel

[P.W.26], Raees [P.W.27], Shehzad [P.W.28], Sailun

[P.W.32], Baliram, Ramesh, Prakash, Firoz and Nasru were

assaulted by means of weapons such as swords, sticks,

rods, etc., in the morning, by a mob, or by some persons

forming it, is also satisfactorily established. Though

nobody has specifically stated about Firoz and Nasru

being attacked, that they were on terrace in the night

and got down along with other victims in the morning, is

established. Their dead bodies were recovered on the

next day from a nearby place. The nature of the

injuries on their person and the fact that they had been

tied by coir ropes, establishes that like others, they

were also assaulted by the mob of rioters. The evidence

shows that the injuries were such as had endangered the

lives of Nafitulla, Nasibulla, Taufel, Raees, Shehzad and

 531

Sailun. The injuries suffered by Baliram, Ramesh,

Prakash, Firoz and Nasru actually proved to be fatal.

751. Yasmin's evidence shows that the mob of rioters had

robbed the ghee, maida, sugar, etc., that was in the Best

Bakery building. There is absolutely no reason to

disbelieve it.

752. That Baliram, Ramesh, Prakash, Firoz and Nasru died

unnatural deaths as a result of injuries sustained by

them on account of the assault that took place in the

morning, is clear from the very nature of injuries

sustained by them and from the memorandums of the post-

mortem examinations performed on their dead bodies.

There can be no doubt that the assault on Baliram,

Ramesh, Prakash, Firoz and Nasru was with the intention

of killing them and at any rate, with the knowledge that

their deaths would thereby be caused.

753. Hence, Point Nos.2 to 8 are answered accordingly.

As to Point No.9 :-

754. As to what exactly happened to Kausarali and Lulla

is not clear. The dead bodies of none of them have been

found. The version advanced by the eye witnesses in that

 532

regard, therefore, needs to be examined.

755. There can be no doubt that both Kausarali and Lulla

were present in the Best Bakery building when the riots

started. There is also no doubt that none of them was

seen thereafter by their relatives or any other

witnesses. In the morning when the police came,

Kausarali and Lulla were not available. Their dead

bodies were also not found.

756. According to Taufel [P.W.26], the rioters had

assaulted Kausarali and Lulla by swords, in the night

itself. That both of them had fallen down. They were

then lifted by Taufel and others and taken up on the

first floor of the Best Bakery building. That Kausarali

and Lulla had been made to sleep in one room on the first

floor. According to Taufel, they were injured and

bleeding profusely and might have been already dead when

they were lifted and taken in the house. The attempt to

discredit Taufel on these aspects has not succeeded, in

my opinion. The omissions and contradictions in that

regard, as have been brought on record, are insignificant

and immaterial. The cross-examination of Taufel does

indicate that he has not seen the rioters actually

assaulting any of them, but he had seen the rioters

talking to them and thereafter they having fallen down,

 533

injured and bleeding.

757. Raees [P.W.27] also speaks of Kausarali and Lulla

talking to the rioters and according to Raees, he saw

that Kausarali and Lulla were dragged away and assaulted.

758. Even Shehzad [P.W.28] mentions about Kausarali and

Lulla speaking to the rioters when the rioters came in

the night. Shehzad also states that Kausarali and Lulla

were assaulted by the rioters by swords; and that

thereafter, he, Taufel and Baliram brought Kausarali and

Lulla and made them sleep in the room. There is a

variation in the version of Taufel and Shehzad regarding

the persons who brought Kausarali and Lulla in the room.

While according to Taufel [P.W.26], Kausarali and Lulla

were taken to the first floor by him, Baliram and Nasru,

according to Shehzad [P.W.28], they were taken by him,

Taufel and Baliram. I am not inclined to give much

importance to this variation. Some such variation is

bound to exist when a number of victim witnesses are

naratting about an incident involving a large number of

happenings, large number of assailants and large number

of victims. The possibility of Taufel making a mistake

and giving the name of Nasru, instead of Shehzad, can not

be ruled out. Except this variation, the story of Taufel

and Shehzad is the same, on this aspect. Shehzad also

 534

states that Kausarali and Lulla were bleeding. According

to Shehzad, when he, Taufel, and Baliram took them to the

first floor, the clothes of Taufel and the said other two

were also stained with blood. The contradictions and

omissions with respect to his version are of no

consequence.

759. The version of Yasmin [P.W.29] on this, is also

consistent with the version of Taufel [P.W.26], Raees

[P.W.27] and Shehzad [P.W.28]. She claims to have seen

Kausarali and Lulla being assaulted by swords. Yasmin

has claimed that she saw the rioters dragging Kausarali

and Lulla from the first floor when both of them were

unconscious. According to her, their bodies were thrown

in the fire. Yasmin categorically states that the bodies

of Kausarali and Lulla were thrown in the fire that had

been set to the wood kept on the ground floor of the

building. She claims to have seen this while coming down

from the staircase between the first floor and the

terrace.

760. In the cross-examination of Yasmin, it was asked to

her as to from where she had seen the bodies being thrown

in the fire. It is because from the terrace, Yasmin

would not be able to see the fire that had been caught on

the ground floor of the building. Yasmin has replied

 535

that they were dragged a little away from the structure.

That there was some life left in Lulla; he was given

blows with swords after which he succumbed to the

injuries and thereafter, the bodies were thrown in the

fire. The contention of the learned Advocates for the

accused that the place where fire had taken place on the

ground floor could not be seen from the terrace, is

correct and should be accepted. However, it is difficult

to hold that thereby, a person cannot give evidence of

having seen the persons being thrown in the fire. If

they had indeed been dragged a little away from the

structure, it was possible to see the same from the

terrace and when they would be thrown, later on, in the

fire, the witness could very well perceive the same. It

is true that their actual falling in the fire would not

be seen by the witness from the terrace and to a certain

extent, an inference enters in what seems to be a plain

statement of facts. However, the correctness of such

inference can, in certain cases, be undisputed.

761. Even the hostile witnesses admit that Kausarali was

in the Best Bakery building when the riots started; and

that his whereabouts, thereafter, are not known to them.

Similarly, about Lulla, apart from the evidence of

supporting occurrence witnesses, the evidence of Ashraf

[P.W.33] and Aslam [P.W.42] establishes his presence in

 536

the Best Bakery building at the material time.

762. A careful analysis of the evidence of these

witnesses leaves no manner of doubt in my mind that not

only Kausarali and Lulla were present in the Best Bakery

building when the riots started, but that they also came

in contact with the rioters, were assaulted and

thereafter were brought by Taufel & others to the first

floor room and made to sleep there. Whether Yasmin

actually saw them being thrown in fire, is difficult to

conclude. One thing is, however, certain that after the

riots, Kausarali and Lulla were not found. When the

police and fire brigade came there in the morning, they

were not there and their dead bodies were also not found.

Thereafter, they have not been seen by any of the

witnesses, including the hostile witnesses, Kausarali's

wife [Link] Shaikh [P.W.34], and Lulla's brothers

- Ashraf [P.W.33] and Aslam [P.W.42].

763. On 22/03/2002, when PI Kanani [P.W.74] made a search

for the remains of human bodies, if any, in the Best

Bakery building, in the presence of the officers from the

Forensic Science Laboratory, some human bones were found.

The said bones were seized and taken charge of under a

panchanama. The bones were, later on, sent for

examination to the Head of the Department of Anatomy,

 537

Medical College, Vadodara, and an opinion, inter-alia, to

the effect that they were human bones; and that they were

of more than one person, was given. The relevant

evidence in this respect is of PI Kanani [P.W.74],

Mukhtyar Shaikh [P.W.6] – a panch, Ashok Kumar Waghela

[P.W.19] – Scientific Officer in the F.S.L., [Link]

[P.W.20] – Professor of Anatomy, [Link] Soni [P.W.60]

– Assistant Professor in the Department of Anatomy, and

PSI Rupesh Dave [P.W.75]. This evidence which has been

attacked as unreliable, needs to be examined.

764. There cannot be any doubt that PI Kanani had

contacted authorities from the F.S.L. and had taken

search of the bakery and the wakhar with their help to

see whether any remains of human body could be found at

this place. PSI Rupesh Dave [P.W.75], along with Panch

Mukhtyar Shaikh [P.W.6] and the team of officers from the

F.S.L., Vadodara, consisting of Ashok Kumar Waghela

[P.W.19], on 22/03/2002, went to the Best Bakery building

and wakhar and collected a number of samples for

examination, cannot be doubted at all. The evidence of

all these witnesses on this point is consistent and well

corroborated by the documentary record, which cannot be

doubted. For the present, it is not necessary to mention

the details of the samples taken and only the evidence

which speaks of having found some bones in the premises,

 538

needs to be discussed.

765. Mukhtyar Shaikh [P.W.6 – a panch witness] has stated

that from the backside of the building, some bones were

found; and that there was one bone with teeth. He speaks

about the bones being taken charge of. The bones [part

of Art.R/14(colly)] which were produced before the Court,

were shown to this witness and he has identified the

bones as the same that were found on the spot.

766. Ashok Kumar Waghela [P.W.19] also states how the

search for bones was made specifically and how, by the

side of a step on the rear side, there was a heap of

burnt articles. He states that in that heap, bone pieces

and something like a denture was found. The bones

forming part of Art.R/14(colly) were shown to him and he

identified them to be the same bones which were collected

on 22/03/2002.

767. PSI Rupesh Dave [P.W.75], the officer who drew the

panchanama, also states that on the rear side of the

wakhar where there were steps, a heap of burnt coal and

wood was noticed. He states that the F.S.L. officers

searched inside the heap and the jaw bone and the pieces

of bones were found, which were kept in a plastic bag,

which in turn were kept in a cardboard box; and that the

 539

cardboard box was sealed by following the routine

procedure. The bones forming part of Art.R/14(colly)

were identified by PSI Dave as the same bones that were

seized under the panchanama. The panchanama which has

been duly proved has been tendered in evidence and has

been marked as Ex.24.

768. Some arguments are advanced by the learned Advocates

for the accused to the effect that the story of finding

some burnt bones on 22/03/2002 is unbelievable. It is

contended that earlier, a panchanama of the scene of

offence was drawn; and that there is no mention of any

heap in that panchanama. It is contended that the bones

were planted and then were falsely shown to have been

discovered. There are also some contentions advanced

with respect to the manner in which the bones were

packed.

769. What is at once noticed is that the evidence of

Mukhtyar Shaikh [P.W.6] on the aspect of finding of the

bones has not at all been challenged. There is no

suggestion put to him that no bones were found; and that

he was deposing falsely. His cross-examination deals

with the manner of packing, etc., and whether or not

there was a possibility of the bones having been

replaced, but the cross-examination is not directed on

 540

the aspect of his claim of having found the bonds. Even

Ashok Kumar Waghela [P.W.19], who categorically mentioned

about the bones being found in a heap of burnt articles,

has not been challenged on this. There is also no

challenge to the evidence of these two witnesses

regarding the basis on which they have identified the

bones [part of Art.R/14(colly)] as the same bones which

were collected on that day. The basis of their belief as

to the identity has not been asked to them in the cross-

examination. In fact, the suggestion put to PSI Dave

[P.W.75] in the cross-examination indicates that the case

that is made out on behalf of the defence is that the

heap was deliberately created and the bones were planted,

and not that there there was no heap, or that no bones

were found at all. After considering the evidence on

record, I am not able to hold that the bones were

planted; and that a heap was artificially created with

the object that the bones should be shown as 'discovery'.

There could be a number of reasons why a mention of the

heap was not found in the panchanama of the scene of

offence drawn earlier by PI Baria. The place of offence

was not sealed. The heap was outside the premises. The

locality is residential and it would be dangerous for PI

Kanani to 'create' a heap of burnt articles and insert

into it human bones because it could be noticed by

somebody and there was no reason for PI Kanani to take

 541

such a risk. Once the evidence that bones were indeed

found at the relevant place is believed, or is

unchallenged, this is only other theory, which cannot be

accepted in my opinion.

770. The discrepancies about the manner of sealing or

seizure of the bones are also not very relevant when the

evidence of the witnesses as to the identity of the bones

is not only not challenged, but even asking about the

basis for identification has been avoided. There is no

reason to disbelieve that the bones were taken charge of

along with other articles, properly packed and sealed and

were sent to the Head of the Department of Anatomy,

Medical College, Vadodara.

771. The evidence of [Link] [P.W.20] and the findings

given by him on examination of bones are much criticized.

The certificate given by [Link] and [Link] [P.W.60]

has been produced and marked as Ex.71/A [it had been

produced, marked and exhibited in the previous trial

also]. The list/note made by [Link] and [Link] as to

the contents of the box which had been received by them

from the D.C.B. Police Station, Vadodara, for

examination, has also been produced and marked as Ex.70.

772. The opinion of [Link] and [Link] is to the

 542

effect that the incompletely burnt bones were of human

origin, that all the bones were not of the same person;

and that a few identified bones were belonging to a

person aged above 18 years. These conclusions are duly

recorded in the certificate [Ex.71/A].

773. There has been very lengthy cross-examination of

[Link] [P.W.20] arising out of a few interpolations

and additions which were apparently made later on by him

in the list/note [Ex.70]. In the certificate [Ex.71/A], a

conclusion has been reached about a few identified bones

belonging to a person aged above 18 years. It appears

that in the list/note [Ex.70], the age was initially

mentioned as 'beyond 24 years', which was, later on,

corrected and made as 'above 18 years'. The allegation

is that this has been deliberately done at the instance

of PI Kanani, in as much as, Lulla, who was believed to

have been burnt at the place where the bones were found,

was about 17 to 18 years of age. The argument is that

the description of the person as 'aged above 24 years'

would not have helped the prosecution and therefore,

fraudulently, the said change has been effected while

issung, or after issuing, the certificate. I do not find

any substance in these vehement contentions. It does

appear that the changes have been made subsequently, but

there is no basis for claiming that they have been made

 543

after the certificate was issued. The document marked as

Ex.70 is basically a list/note made by [Link] and

[Link] for their own convenience at the time of the

examination of the bones. The result of their

examination and the conclusion arrived at by them is not

supposed to be contained in the list/notes [Ex.70], but

in final certificate [Ex.71/A], which has been issued.

The whole basis for the contention that a fraudulent

change has been made in the list/notes [Ex.70] at the

instance of PI Kanani, is that in the chargesheet, there

exists a document which purports to be a true copy of the

document marked as Ex.70 and in that document, the

changes which are found in Ex.70, are not seen. That

document has been produced and marked as Ex.72.

[Link] has explained this, by saying that after the

necessary examination is carried out, notes are prepared;

and that at that time, a xerox copy of the notes is taken

out and kept along with the relevant articles so as to be

able to be useful in case the original notes are lost or

misplaced. Thus, it seems that a copy of Ex.70 was taken

out before making the changes, which somehow came to be

included in the chargesheet, instead of corrected

document – viz. Ex.70. This aspect is blown out of

proportion during the cross-examination, but I am not

impressed by the contentions advanced on the basis of it,

in as much as, that the corrections made are wrong, is

 544

not at all shown or suggested. In fact, [Link] has

clearly referred to a particular page in the book 'Grey's

Anatomy' and said that in view of what is stated in the

said book, the changes were made in the list/notes

[Ex.70]. It is made clear by him that the opinion as to

the age being 'above 18 years' is given on the basis of

the examination of the maxilla teeth socket. Now, no

attempt has been made to show that this opinion is wrong.

In other words, the entire attack that has been made on

the opinion given by [Link] is based on the changes

made in the list/notes [Ex.70] without attempting, in any

manner, to challenge the correctness of the opinion.

There is absolutely no attempt – not even a suggestion –

to show that the opinion as 'above 18 years' could not

have been given on the examination of the maxilla bone,

as has been done.

774. The evidence of [Link] [P.W.60] fully supports the

version of Saiyad [P.W.20]. [Link] has also stated that

they referred to the book 'Grey's Anatomy' to get the

confirmed opinion about the range of the eruption of the

third molar tooth in maxilla and then came to the

conclusion that the proper opinion should be 'above 18

years' instead of 'beyond 24 years'. [Link]'s evidence

confirms the fact that the changes were made at that time

only and at any rate, within a short time thereafter. In

 545

any case, there is nothing to indicate that they were

made after the certificate [Ex.71/A] was issued.

[Link] has made it clear that on page 1718 of the 30th

Edition of 'Grey's Anatomy', it is mentioned that third

molar tooth erupts during the age 18 years to 24 years.

As already observed, there is absolutely nothing to

challenge this and once that is so, the correction that

has been made, is proper. At the most, it would mean

that initially a wrong opinion was formed, but before

issuing the certificate, it was got corrected by

referring to 'Grey's Anatomy'.

775. The cross-examination of [Link], in view of the

changes between the list/notes [Ex.70] and what purports

to be its copy, as filed in the chargesheet, seems to be

totally uncalled for. A number of theories of conspiracy

with PI Kanani, etc., were advanced based on this, but

apart from the fact that the opinion which has been given

is not shown, or even suggested, to be wrong, I am not

impressed by these theories. There was hardly any reason

for [Link] and [Link] to make changes after having

issued the certificate. This is particularly so when the

change is said to be correct. Moreover, the list/notes

were not meant to be the final opinion expressed by

these experts. It was for their record and what actually

matters, is the ultimate certificate issued by them. It

 546

is the certificate which is supposed to record their

conclusion, and not the notes. Thus, not only the theory

of [Link] and [Link] having tampered with the record

and opinion to oblige PI Kanani, who wanted such a

change, cannot be believed, but, on the contrary, it

seems that a copy of the rough notes was improperly

issued by one [Link], Associate Professor in the

Department of Anatomy, a colleague of [Link] and

[Link]. It is apparent from the documents [Ex.72 and

Ex.72/A] that [Link] certified a xerox copy of the

list/notes [Ex.70] as the 'true copy' without reference

to either [Link] or [Link] and handed over such

certified copy to PI Kanani. PI Kanani included it in

the chargesheet. Apparently, before making corrections

in Ex.70, a xerox copy thereof had been taken out as per

the procedure explained by [Link] and on the basis of

the said copy, another copy was taken out by [Link]

and certified as 'true'. Naturally, such copy does not

contain the corrections that were later on carried out.

As a matter of fact, it is not that there is anything

questionable in what [Link] and [Link] did, in as

much as they were entitled to make changes and correct

the document which was nothing but their own rough notes,

but actually, it is [Link]'s conduct in

certifying a xerox copy of the rough notes made by Dr.

Saiyad and Dr. Soni as 'true' without reference to them

 547

that is questionable. Merely because such a copy was

handed over to PI Kanani by him and included in the

chargesheet by PI Kanani, such frivolous points could be

taken up on behalf of the accused. Though the

corrections were certainly made by [Link] and [Link]

in the list/notes [Ex.70], the corrections are not shown

to be wrong. In fact, opinion as 'beyond 24 years' would

have been wrong and it was rightly corrected.

776. Apart from this, the document (Ex.70) is prepared at

a stage when the mental process of the experts was still

going on for arriving at a conclusion in respect of the

queries made, and as such has no value as an expression

of the opinion of the said Doctors.

777. The suggestions that [Link] had, after issuance

of the certificate, made certain changes, are also

incorrect, as established by the evidence of [Link].

778. In the ultimate analysis, therefore, as regards PI

Kausarali and Lulla, the following factors can be said to

be satisfactorily proved.

a) Kausarali and Lulla were very much

present in the Best Bakery building

when the riots started in the night

on 01/03/2002.
 548

b) That in the night itself, they had

come in contact with the rioters and

Kausarali had a talk with the

rioters.

c) Kausarali and Lulla were assaulted by

the rioters. They sustained injuries

and were bleeding profusely.

d) They were lifted by Taufel, Shehzad,

Baliram, brought on the first floor

of the Best Bakery building and made

to sleep in a room.

e) In the morning, when the police came,

neither Kausarali and Lulla, nor

their dead bodies were found.

f) Since then, Kausarali and Lulla have

not been heard of by their relatives.

g) Incompletely burnt human bones of at

least two different persons were

found in the premises of the Best

Bakery building on 22/03/2002.

779. Now, Yasmin [P.W.29] has claimed that she has seen

the rioters dragging Kausarali and Lulla away and

throwing them in the fire. There is also some other

evidence indicating that the rioters might have dragged

them away after they were made to sleep, but I proceed on

 549

the basis that this – viz. that they were thrown by the

rioters in the fire – is not satisfactorily established.

However, the question is what conclusion, other than they

both were burnt and killed or killed and later burnt

during the incident, can be drawn from the facts which

are proved and which are enumerated above.

780. The question is rather delicate. There was a time

when the Courts used to insist on the evidence of the

dead body, or 'corpus delecti' in cases of murder and no

conviction for murder would be recorded unless the dead

body is found. In several old authoritative texts, it

has been considered as a rule that no finding in respect

of murder can be given unless the body of the deceased is

found. However, this rule is not without qualification.

It has been recognized that circumstances may be

sufficiently strong to show the fact of murder though the

body has never been found. It cannot be said that under

no circumstances, a charge of murder can be established

without the dead body being found.

781. In the present case, there can be no rational

explanation of the facts which are proved, other than

that Kausarali and Lulla were killed in the incident.

The finding of burnt human bones at the relevant place

indicates that at least two persons or dead bodies had

 550

been burnt. Kausarali and Lulla could not have left the

Best Bakery building in the night, and when it was

surrounded by the rioters. They had already been very

badly injured, as established by satisfactory evidence.

Thus, even if there exists a doubt as to whether Yasmin

had actually seen them being thrown in the fire, the fact

remains that no other conclusion in that regard can be

drawn if the facts duly proved and enumerated above are

to be interpreted. Though what exactly happened to

Kausarali and Lulla and the manner in which they were

actually killed is not clear, the only inference that can

be drawn from the proved facts is that they were killed

during the riots at that particular night and they were

burnt alive or dead. There are no other reasonable

possibilities.

782. Refusing to come to this conclusion would not be

justified only because their dead bodies were not found.

As already observed, it is not a legal pre-requisite for

coming to the conclusion about they having been killed.

Once there is no doubt whatsoever that they were present

in the Best Bakery building, that they met the rioters,

that they were assaulted and were badly injured, that

they were brought and kept in the room on the first floor

of the Best Bakery building; and that thereafter, neither

they, nor their dead bodies were found, but later on,
 551

from that place, burnt human bones of at least two

persons were found, I am unable to come to a conclusion

that they might not have died and might be surviving

somewhere or that they might have died due to something

else. In my opinion, these factors are sufficient to

justify the conclusion arrived at by me. This conclusion

is further strengthened by the fact that neither

Kausarali, nor Lulla, have been heard of by their own

relatives, since 02/03/2002.

783. It may be kept in mind that the law creates a

presumption of death in case of a person who has not been

heard of for 7 years, by those who would naturally have

heard of him if he had been alive. Thus, without there

being any history of assault, attack, etc., a presumption

regarding death is drawn only from the fact that the

person is not heard of for 7 years by those who would

have naturally heard of him and the burden of showing

such person to be alive, is thrown on the one who asserts

it. In the instant case, there is a background of riots,

history of assault and having sustained injuries, and

thereafter the persons or their dead bodies being missing

in the morning. The evidence has brought on record,

existence of the circumstances, which make it impossible

to think that in an injured condition Kausar and Lulla

would leave the premises and go elsewhere on their own.

 552

Whether rioters would allow them to go is also a

question. In this background, if they are not heard of

by their close relatives for a period of more than two

and half years, as is clear from the evidence of

[Link] [P.W.34], Ashraf [P.W.33] and Aslam

[P.W.42] the only inescapable conclusion is that they

have died; and that too an unnatural death in the riots.

784. Can it be said that the fact of death of Kausarali

and Lulla is proved by the standard that is required in a

criminal trial ? It is well settled that the degree of

proof that is required in a criminal trial is higher than

a mere prepondence of probabilities. The phrase 'beyond

reasonable doubt' is invariably used in relation to the

standard of proof that is expected in a criminal trial.

The phrase 'beyond reasonable doubt' is a time honoured

phrase and though it may be difficult to explain its

meaning precisely, it is easier to understand what it

conveys. The following observations of Lord Denning in

Miller V. Minister of Pensions, [1947] 2 All E.R. 372, at

p.373-374, which have been referred to by the Supreme

Court of India are worth reproducing in this context.

“........ Proof beyond a

reasonable doubt does not mean

proof beyond the shadow of a

 553

doubt. The law would fail to

protect the community if it

admitted fanciful possibilities to

deflect the course of justice.”

Lord Denning further made observations indicating that

remote possibilities, which can be dismissed with the

sentence 'of course it is possible but not in the least

probable' would not be sufficient to create a reasonable

doubt, when, otherwise, the evidence is strong.

It can be said that the possibility, if any, of Kausarali

and/or Lulla being alive, or having died a natural death,

is too fanciful and too remote to be seriously

considered. At any rate, it can be dismissed as 'not in

the least probable'.

785. There is no doubt in my mind that Kausarali and

Lulla were put in the fire – either alive or after having

been killed – by the mob of rioters and in either event,

they have died an unnatural and homicidal death, either

due to the fire, or otherwise.

Hence, Point No.9 is answered accordingly.

As to Point Nos.10 and 11 :-

 554

786. The mob of persons who had assembled at the material

time near the Best Bakery building and who did the

aforesaid acts in the night on 01/03/2002 and/or in the

morning of 02/03/2002, was clearly an unlawful assembly.

The mob was of several persons, stated to be of about

1000 to 1200. It is clear that the said assembly was

entertaining more than one of the common objects

specified in section 141 of the I.P.C.

787. The various acts committed by the mob which was

surrounding the Best Bakery, giving slogans, pelting

stones, bottles and burning matters, etc., were obviously

not committed at the whims at the individual members

composing the unlawful assembly. The evidence, as

discussed earlier leaves no manner of doubt that all the

aforesaid acts and setting the buildings on fire, robbing

of the ghee, maida, sugar etc., and other articles in the

bakery, assaulting the inmates with weapons, causing hurt

to them etc. were clearly in prosecution of the common

object of the said unlawful assembly. What was the

object has been clearly proved by the evidence.

Hence, Point Nos.10 and 11 are answered accordingly.

As to Point Nos.12 and 13:

788. These two points being connected, the reasons for

 555

the determination thereof,may be discussed together. That

the accused persons were the members of the unlawful

assembly is sought to be established mainly on the basis

of their identification as [Link] are a number of

challenges to the identification evidence, some of which

have been dealt with earlier. The contention that it was

impossible for the occurrence witnesses to have seen the

mob of rioters or the persons forming it, due to smoke,

darkness and topography etc. has already been dealt with

and has been found to be without substance. I shall now

consider the other contentions raised by the learned

Advocates for the accused with regard to the

unacceptability of the evidence of identification.

789. It is contended that the investigating agency

failed to ascertain the identity of the accused persons

as the culprits, during investigation. This is not

accepted as correct by PI Baria and PI Kanani who both

have been extensively cross-examined on this aspect. It

is contended that since full names of the offenders could

not be given by the occurrence witnesses, it was not

possible for the investigating agency to fix the identity

of the culprits on the basis of the names, as revealed to

them. PI Baria has accepted some of the suggestions

given to him during cross-examination about the names

being incomplete, but has added there were other factors

 556

establishing the identity. He has given some instances

in that regard, but it is not necessary to discuss that

evidence. This is particularly so, because PI Baria has,

actually, not apprehended any of the accused.

790. PI Kanani has been questioned, to show that neither

any physical description of the offenders nor of the

clothes worn by them, could be gathered by him from the

statements recorded during investigation. It was also

suggested to PI Kanani that the names of the accused as

obtained by him, from the occurrence witnesses, were

quite common in Gujarat; and that the names were

insufficient to fix the identity. Though the contention

about the fixation of identity of the accused as the

culprits during the investigation stage is not very

methodically advanced, from the cross-examination of PI

Baria and PI Kanani and from the arguments, it appears

that it has two shades. The first is about the

satisfaction of the identity of a particular accused as

the culprit reached by the Investigating Officer and the

other is the absence of the confirmation of the identity

of the accused from the occurrence witnesses during the

investigation stage.

791. An attempt has been made to confuse the satisfaction

of the Investigating Officer about the identity of an

 557

accused as the offender, with the identification of the

accused, as such, made by the occurrence witnesses during

investigation stage. It may be observed that these two

are two different aspects, though, in some case they may

overlap. PI Kanani has been questioned as to whether he

could explain as to why he did not feel it necessary to

record further statement of Taufel [P.W.26] and other

supporting occurrence witnesses for the purpose of

knowing the full names of the accused. PI Kanani has

answered as follows.

“Whatever names had been mentioned by

these witnesses, on the basis of that,

I was able to establish the identity

of the said persons. I could establish

their identity and as such, I did not

feel it necessary.”

The questioning to PI Kanani on this aspect gives an

impression that the Advocates for the accused did not

want the Court to ascertain the sufficiency or otherwise,

of the identification evidence, but wanted an admission

from PI Kanani that the eye witnesses had not established

the identity of the accused. The least that can be said

about this, is that the questioning is rather improper.

When such admission did not come from PI Kanani who was

emphatic about the identity having been established, it

 558

was reminded to him that the decision whether the accused

are guilty or not, is not left to the prosecution and it

is the Court which decides such questions. This

proposition is correct, but in that case, there was no

point in attempting to elicit an admission – based on his

opinion - from PI Kanani about the insufficiency of

identification evidence. This has been mentioned in view

of the unfair criticism of Kanani and his evidence, and

to show that it is the questioning that is unfair and not

'attitude of PI Kanani', as reflected from the answers.

792. Moreover, the emphasis on this aspect is totally

misplaced. A more fundamental and basic question needs to

be dealt with in view of the emphasis on fixation of

identity of the culprits during investigation and that is

'how far the question whether the identity of the

offender was properly established during the

investigation stage is relevant, when his identity is

satisfactorily established during the trial'. The actual

evidence regarding identification is that which is given

by a witness in the Court. If that evidence is

acceptable, the question whether the identity of the

accused had been satisfactorily established at the

investigation stage would be immaterial, save and except,

in so far as, it may be relevant for judging the

reliability of the identification made in the Court. If

 559

the identity of the accused is satisfactorily established

during the investigation stage, it may, in some cases

serve as corroboration to the identification in Court,

but by itself, it would not be relevant at all. The

confirmation of the identity of the culprits by the

Investigating Officer at the time of the arrest would

undoubtedly be necessary, but the Investigating Officer

can not be restricted to have such confirmation of

identity from a particular source or in a particular

manner. His confirmation of the identity is for his own

satisfaction, and not for the satisfaction of the Court

during the trial. His satisfaction about the identity

would be relevant for the purpose of arrest and till that

stage. The identity during the trial is to be

established by proper evidence.

793. In view of the very lengthy cross-examination on

this issue, the legal position must be discussed here in

my opinion. If the victims or the witnesses would name

certain person or persons as accused, undoubtedly, the

Investigating Officer, while arresting them, is required

to confirm their identity as the same persons against

whom allegation has been levelled. However, this

satisfaction is to be reached by the Investigating

Officer. He can arrive at it by any mode which he thinks

satisfactory. This is clear from the fact that even

 560

where the names are not given, or even where the culprit

is stated to be unknown to the victims, the Investigating

Officer has to ascertain the identity of an accused as

the culprit before sending him for trial. Obviously, in

such cases, confirmation of identity cannot be done from

the victims. The source on which his belief would be

based, has nothing to do with the admissibility, as a

piece of evidence, of that source. The Investigating

Officer may reach the requisite satisfaction from a

source other than the victims and the witnesses even

where they have named the offenders. For instance, if

'A' complains that 'B' assaulted him, nothing prevents

the Investigating Officer while arresting 'B' to get it

confirmed from 'C' or 'D' instead of 'A' that he is that

'B'. Once the case comes to the stage of trial, the

identity of 'B' as the person who assaulted 'A' is to be

established by legally admissible evidence.

794. Thus, apart from the fact whether the Investigating

Officer had got the identity of the culprits established

during the investigation, either before or after their

arrest is not by itself, relevant, there is nothing to

indicate that PI Kanani apprehended the accused without

being satisfied about their identity or without

ascertaining it.
 561

795. The question that next arises for consideration is

whether the evidence of identification of the accused

persons, as is available in the case, is satisfactory.

796. The contention of impossibility of the eye witnesses

having seen the mob or some persons in the mob is

advanced also on the ground that in the given

circumstances, they would not have attempted to see as to

who were there in the mob. It is submitted that the mob

was of 1000 to 1200 furious persons with weapons like

swords and giving slogans such as 'burn bakery', 'kill

Muslims', etc. It is not in dispute that stones, bricks,

kerosene/petrol bottles, etc. were being thrown on the

Best Bakery building and even towards the terrace. It is

contended that under the circumstances, the frightened

eye witnesses, in the background of the riots and the

circumstances of fire, heat, flames, would not have

risked themselves by looking at the road and thereby

exposing themselves to the danger of becoming targets.

797. I am not impressed by this submission. Firstly, as

already observed, because of the balusters, it was not

necessary at all to peep over the railing to see as to

who were the persons in the mob. One could easily see

the same through the gaps between the balusters.

Further, though the witnesses would undoubtedly be

 562

frightened in the circumstances that have been fully

established by the evidence, it is not possible to accept

that such frightened persons would not try to see as to

what was happening. In fact, it would be a normal

reaction of the witnesses to see as to what was

happening, when the stones, bricks, etc., were being

thrown, slogans were being given, fire was being set. It

would not be a normal, or at any rate a common reaction

of a frightened human being, not to try to ascertain as

to from where, how serious and of what nature, the danger

exists. When the mob would be collected and would be

giving slogans, it would be quite natural for the

witnesses to first try to see as to what was happening

and in that process, obviously to see who were the

persons who were forming the mob. It is only after

knowing what they were doing, the witnesses would know to

what extent they were in danger. The support to this

theory – viz. of the witnesses being frightened and

therefore simply avoiding or refusing to see anything –

is sought to be obtained from the hostile witnesses who

are keen on destroying the whole prosecution case. The

tainted evidence of the hostile witnesses cannot be

brought in aid to establish a particular conduct or

reaction on the part of the supporting eye witnesses.

The witnesses Taufel [P.W.26], Raees [P.W.27], Shehzad

[P.W.28], [Link] [P.W.29] and Sailun [P.W.32] have

 563

not been asked any questions in cross-examination to show

that they could not have tried or did not try to see what

was going on.

798. Though the aspect of witnesses being frightened has

been mainly advanced with respect to the supposed

impossibility of their having attempted to see what was

happening and who were the persons forming the mob, that

in such a frightened state of mind, they would not have

been able to see and remember the persons in the mob, is

also advanced. Thus, based on the aspect of fear, two-

fold arguments are advanced. The first which has been

dealt with earlier is that due to fear, the witnesses

would not have attempted to see what was happening. The

second is about the effect of fear on their perception.

In this regard, the following observations :-

“The emotional balance of the victim or

eye-witness is so disturbed by his

extraordinary experience that his powers

of perception become distorted and his

identification is frequently most

untrustworthy.'

of Professor Borchard, quoted by the Supreme Court of

India in Hari Nath and another V/s. State of U.P., A.I.R.

1988, SC 345, have been emphasized. However, the

submission that because the witnesses were under fear at

 564

the time of the incident, it would prevent them from

observing what was going on around them and forming a

proper impression of the same in their minds, is not

scientifically accepted. That fear will have such an

effect on the witnesses, is of layman's view, as observed

by the Allahabad High Court in Jwala Mohan and others

V/s. the State, A.I.R. 1963, Allahabad, 161. While

dealing with the view that the identification witnesses

would be nervous at the time of the incident and

therefore the identification made by them would be

unreliable, Their Lordships quoted the following as the

view of Psychologists :-

“On the contrary, fear generally has

a large emotional factor and as a

result, the attention is sharpened,

the mental faculties are concentrated,

and better memory on material points

should result. Intense feeling of any

kind is apt to key up the powers of

the brain and sharpen perception.

When we feel a thing strongly, we are

sure to retain the recollection of it.

It is more firmly impressed upon us

than the humdrum affairs of our

ordinary life,” [see 'Psychology and

the Law' by Dwight G. McCarty, 1960,

 565

page 198.] [Emphasis supplied]

[Link], in his 'Psychology of Legal Evidence', has

considered the question of effect of fear on memory. It

would be advantageous to take a note of the following

comments of the learned Author :-

“There is a mistaken impression that

fear prevents attention to what is

going on and therefore hinders

memory, and it has been argued

before the writer more than once

that a narrative or an

identification is not reliable

because the witness being frightened

at the time, could not have noticed

or recollected what she states.

This is a frequent incident of a

dacoity or robbery case. It is

well, therefore, to state exactly

what the effect of fear is. It may

be that the fear is so great as to

totally paralyze the mind, as e.g.

when the serpent fascinates its

prey, and in such cases, the

argument would have foundation; but

this is rarely so, and usually a

person under its influence observes

 566

better and remembers clearly.”

799. The learned Author further went on to quote

Darwin, as follows :-

“'Fear', says Darwin,“is often

preceded by astonishment, and is so

far akin to it that both lead to the

sense of sight and hearing being

instantly aroused. It lends us to

attend minutely to everything around

us because we are then specially

interested in them, as they are

likely to intimately concern us.”

[Quoted from Wigmore's 'Principles

of Judicial Proof', (published by

Boston Little, Brown, and Company

1913)].

In fact, the same observations of Professor Borchard

[supra] were quoted before the Supreme Court of India and

the Supreme Court had occasion to deal with the same in

Daya Sing V/s. State of Haryana AIR 2001, SUPREME COURT,

1188. The Supreme Court of India observed as follows :-

“Theoretically in some case what

has been noted by the learned

author may be true. For that

purpose, the evidence of the

 567

witness is required to be

appreciated with extra care and

caution.”

[para 14].

The Supreme Court of India further cautioned that the

matter is to be decided on an appreciation of the

evidence; and that it is no use to imagine and magnify

theoretical possibilities with regard to the state of

mind of the witnesses and with regard to their powers of

memorizing the identity of the assailants.

800. Whether the aforesaid observations of Professor

Borchard would apply to the identification of known

persons and/or where the incident has lasted for hours,

giving repeated opportunities of viewing the offenders,

is extremely doubtful. They appear to have been made in

the context of identification of persons not previously

known, and/or in respect of incidents which take place in

a very short time. At any rate, the force of these

observations will not be the same in all cases

irrespective of the aspects as to previous knowledge,

duration of incident, manner or opportunity to observe

etc. Thus, there cannot be a general rejection of the

evidence of eye witnesses on the ground that due to fear,

they might not have perceived what was happening,

properly. Moreover, the view of experts, as quoted

 568

earlier, does not support the theory at all. [Link]

and Darwin quoted above, suggest to the contrary.

801. Thus, the contention about the impossibility of the

eye witnesses having seen the culprits on any of the

grounds that are advanced is without substance. There

was every opportunity for the eye witnesses to see the

mob and there was every possibility of their having seen

persons from the mob during the long period for which the

incident lasted.

802. It is next contended that the identification of an

accused for the first time before the Court is a very

weak piece of evidence and cannot be accepted, unless it

is supported by a test identification parade held

previously. It is contended that since in this case, no

test identification parade was held, the evidence of

identification is totally valueless and cannot be acted

upon.

803. A number of decisions of the Hon'ble Supreme Court

of India and of the Hon'ble High Courts have been relied

upon by the defence to challenge the value of the

identification evidence. I shall be discussing only some

of these authoritative pronouncements, as, in my opinion,

it is not necessary to discuss each and every Judgement

 569

cited, though I have taken into consideration the

principles enunciated in all the authoritative

pronouncements.

804. The reliance of the defence on most of the

authorities in connection with the value of the

identification evidence not preceded by a test

identification parade is misplaced. It is clear that

substantive evidence as regards the identification would

only be the identification of an accused as the culprit,

made by a witness in the Court. It is true that such

evidence is considered as 'weak piece of evidence' unless

supported by the evidence of a previous test

identification parade, but this concept of 'weakness'

arises where the offender or the culprit is not

previously known to the identifying witnesses. All the

authorities which speak of the necessity of holding a

test identification parade and the weakness of the

identification done in the Court for the first time,

relate to cases where the offender or the culprit would

not be known to the witnesses prior to the incident. The

observations from the very Judgement relied upon by the

learned Advocates for the accused themselves, establish

this.

i) In Bollavaram Pedda Narsi Reddy and ors. V/s. State

of Andhra Pradesh, (1991) 3 Supreme Court Cases 434, on

 570

which reliance has been placed by the defence, the

Supreme Court was dealing with the question of

identification of accused persons not previously known to

the witnesses. This is clear from the following

observations :-

“In a case where the witness is a

stranger to the accused and he

identifies the accused person before

the Court for the first time, the

Court will not ordinarily accept that

identification as conclusive”.

[Emphasis supplied] [para.8]

The Supreme Court further observed :

“In the present case, the appellants

are admittedly persons with whom the

two witnesses had no previous

acquaintance”. [para.9]

It was further observed :

“The occurrence happened on a dark

night. When the crime was committed

during the hours of darkness and the

assailants are utter strangers to the

witnesses, the identification of the

accused persons assumes great

importance.” [Emphasis supplied]

[para.9]
 571

805. The observations reproduced above, leave no

manner of doubt that they cannot be have any application

to a case where the culprits would be known to the

identifying witnesses previously.

ii). The decision of the Supreme Court in Kanan and

others v/s State of Kerala, (1979) 3 Supreme Court Cases

319, is also relied upon by the learned Advocates for the

accused.

806. The following observations from the reported

Judgement :

“It is well settled that where a

witness identifies an accused who is

not known to him in the Court for the

first time, his evidence is absolutely

valueless unless there has been a

previous T.I. parade to test his

powers of observation.” [Para 1].

demonstrate that they relate to the identification of an

accused not known to the witnesses from before.

807. Thus, it is very clear that the failure to hold a

test identification parade may prove fatal only in cases

where the offenders would not be known previously to the

 572

witnesses or victims. Even in such cases, no proposition

of universal application that the evidence of

identification of an accused as the culprit for the first

time in the Court has to be rejected in all cases, can be

laid down. There is no rule of law, or even of prudence,

to that effect. The rule deducible from the

authoritative pronouncements of the Apex Court – which is

based on logic, common sense and prudence – is that such

piece of evidence is a weak piece of evidence and may be

rejected; and that it is required to be accepted with

great caution. If there would be circumstances which

lend assurance even to such identification, then

notwithstanding that no test identification parade was

held and that the offender was not known to the

identifying witness/witnesses since previously, the

evidence can be accepted and even a conviction can be

based on such evidence. In any case, it is not possible

to deduce any principle from any of the judicial

pronouncements relied upon by Shri Adhik Shirodkar,

learned Senior Advocate, Shri Jambaulikar, learned

Advocate for accused nos.1 to 5, 10 11 and 12, and other

learned Advocates for the accused that this 'weakness'

attached to the identification evidence exists even in

cases where the offenders are known to the identifying

witnesses. On the contrary, the very observations made

therein show that where the culprit is a person

 573

previously known to the witness, the necessity of holding

a test identification parade does not arise at all; and

as such, the identification of the culprit made by the

witness for the first time in Court of law cannot be

discarded or regarded as 'weak' on the ground that no

test identification parade was held.

808. In Jadunath Singh and another V/s. The State of

U.P., 1971 CRI.L.J.305, the issue that was before the

Court was much more complicated, but the observations of

the Lahore High Court in Sajjan Singh V/s. Emperor, AIR

1945 Lah 48 to the effect,

“If an accused person is already well

known to the witnesses, an

identification parade would be of

course, be only a waste of time.”

were approved.

809. In Mehtab Singh and others V/s. The State of Madhya

Pradesh, 1975 CRI.L.J.290, while dealing with an argument

that there was no proper identification [of the appellant

nos.2 and 6 before the Supreme Court] at an

identification parade; and that the appellants were

therefore entitled to be acquitted, the Supreme Court

observed as follows.

“But this argument is .... without

 574

force and cannot be accepted. The

necessity for holding an

identification parade can arise

only where the accused are not

previously known to the witnesses.”

[para 3].

810. In Surendra Nath V/s. State of U.P. A.I.R. 1998 SC

193, all the relevant aspects touching the identification

evidence were discussed. The Supreme Court of India

referred to several of its decisions on this aspect. In

that case, the appellant had claimed that the witnesses

were not known to him. His application for directing the

test identification parade was dismissed by the Chief

Metropolitan Magistrate, which was challenged in the

Court of Sessions, Kanpur. The Sessions Court directed

the appellant to be put up for identification, but still,

the identification parade was not held. The Supreme

Court, after referring to its previous pronouncements in

which it was laid down that identification of an accused

who his already known to the identifier is futile, came

to the conclusion that failure to hold the test

identification parade even after a demand by the accused

is not always fatal; and that it was only one of the

relevant factors to be taken into consideration along

with the other evidence on record. It was observed that

 575

if the claim of the ocular witnesses that they knew the

accused already is found to be true, the failure to hold

the test identification parade is inconsequential. The

legal position was further made clear by the Supreme

Court in Dana Yadav V/s. State of Bihar A.I.R. 2002 SC

3325. After an extensive analysis of the law on the

subject, the Supreme Court recorded its conclusions in

para 38 of the reported Judgment. The conclusions do

not leave any manner of doubt that there is no question

of holding test identification parade if the accused is

known to the prosecution witnesses. Further, even in

cases where the accused had demanded an identification

parade to be held and where a parade was not held in

spite of such demand, that would not be fatal, if

ultimately it is revealed that the accused was known to

the witnesses from before. What needs to be highlighted

is that in spite of the claim of the accused that he is

not known to the witnesses and in spite of the failure to

hold a test identification parade even after such a

claim, it may not prove fatal; and whether the accused

was known to the witnesses since previously, would be a

question to be decided by the Court on the basis of the

evidence that may be adduced during trial.

811. So far as the present case is concerned, according

to the identifying witnesses, the accused who have been

 576

identified by them were known to them since previously.

The witnesses who have identified the accused persons

have stated about such accused being known to them by

their face and appearance, where they are not known by

name. No test identification parade was demanded by the

accused during investigation. It is true that only some

of the accused are known to some of the witnesses by

names, but every identified accused is stated to be known

by face and/or appearance by the witness identifying him.

812. Thus, the crucial question is whether the accused –

or at least those who are identified by the witnesses –

were known to the concerned witnesses since prior to the

incident. The witnesses have said so. According to the

witnesses, they knew accused persons identified by them

because the accused are from the same locality. I shall

therefore consider whether the accused are proved to be

from the same locality as of the witnesses, or a nearby

locality.

Whether the accused are from the

locality ? - [Yes.]

813. It may be observed that, apparently, there was no

dispute on this issue earlier. It is only when the fact

that not holding of a test identification parade, would

 577

not be relevant in this case, by reason of the accused

identified by the witnesses being known to them since

previously, was discussed in the course of the arguments,

that the stand that they are not from the locality, was

taken.

814. As already discussed, the witnesses who have

identified the accused persons have said that those

accused were known to them, since previously. The fact

that they were known previously, has come out in a

natural manner from the identifying witnesses. In this

context, the arguments that it is only a 'bare oral

word'; and that it is 'a belated oral word' of the

identifying witnesses, cannot be accepted. It was never

a case of the identifying witnesses that the offenders

were all unknown to them. Rather, the investigating

agency's case is that the accused are from the same

locality, as that of the witnesses and victims. The

statement regarding previous knowledge, as made by a

witness, cannot be discarded as 'mere oral word', etc.,

in as much as, there is nothing else, which he is

required to show. It was open for the accused to

question the witness as to in what way they knew the

concerned accused since previously. In fact, Yasmin has

been asked about it and she has answered the same. If a

man knows another since previously, he is only supposed

 578

to and expected to say that. It cannot be suggested that

he should be armed with evidence - rather documentary

evidence – to prove that he knows him; and that too when

there is no reason for him to expect any challenge from

the accused on this.

815. Apart from this, there is clear and positive

evidence of Lal Mohammad [P.W.36] who says that all the

accused are from the same locality where his 'wakhar' and

the Best Bakery were situated. Lal Mohammad has

categorically stated that he knows all the accused; and

that all are from the 'mohalla'. There is absolutely no

challenge to this evidence. On the contrary, that Lal

Mohammad's evidence should be accepted fully is what is

contended on behalf of the accused.

816. Veersingh Zala [P.W.45] has also admitted that the

accused in this case are from his locality and nearby

locality, though unlike Lal Mohammad, he did not know

anyone. There is no challenge to this evidence.

817. The evidence of [Link] Pandya [D.W.4] also

speaks of the accused being persons from the same

locality where Best Bakery was situated. In fact,

[Link] Pandya gives that as a reason for feeling

curious, about how Yasmin [P.W.29] could go and stay in

 579

the Best Bakery building. When the accused were from the

same locality and when they had been acquitted, how

Yasmin, a victim of such terrible incident, could go and

stay there, was the aspect which aroused her interest and

therefore she instructed Ajay Patel [D.W.5] to record

Yasmin's interview. No clarification as to how she had

knowledge of the fact of accused being the residents of

the same locality has been sought on behalf of the

accused; but I still consider that in all probability,

Khyati Pandya has no personal knowledge regarding it.

Her evidence may be only indicative of her belief that

they are the residents of the same locality, rather than

[Link] is significant is that the accused did not

challenge this evidence, or did not attempt to show that

she is wrong. The basis of the belief, the defence has

not dared to seek clarification regarding. This belief

together with the tacit admission on the part of the

accused supports the unchallenged evidence of Lal

Mohammad [P.W.36], should it require any support.

818. PI Kanani's [P.W.74] evidence also clearly shows

that the accused are the residents of the same locality.

PI Kanani has spoken about the houses of the accused

being in the Hanuman Tekdi locality. On what basis PI

Kanani said so,is a matter not thought fit for a probe by

the accused. This speaks for itself. In the course of

 580

investigation, PI Kanani, as the Investigating Officer,

naturally came across the respective residences of the

accused persons. The trend of the cross-examination in

this regard is to the effect that the sources or the

persons from whom PI Kanani ascertained the fact - viz.

that the accused were having their houses in the same

locality - have not been examined before the Court.

There is no substance in this contention. Though

initially this information, or knowledge, may be derived

by the Investigating Officer from other sources, as soon

as he derives it, it becomes his knowledge capable of

being deposed as a fact, by him. Where a person resides

is not a matter which the Investigating Officer cannot,

in the course of investigation, ascertain. It is not

like the facts of the incident of the crime which the

Investigating Officer learns from witnesses, but which

can never become his own knowledge of the incident

capable of being stated like a fact. It is a matter which

the Investigating Officer is competent to depose as a

statement of fact and as evidence. In what manner PI

Kanani ascertained the addresses or houses of the accused

is not sought to be got from him by questioning him on

that, in the cross-examination.

819. That PI Kanani or his subordinates visited the

houses of the accused while searching for them, is not in

 581

[Link] a different context- viz. to explain the

surrendering themselves by the accused persons, this

fact was brought on record in the cross-examination of PI

Kanani [page 3407 of the Notes of Evidence]. Thus, when

the fact that the houses of the accused persons were

visited by the investigating agency while the search for

them was in progress is not in dispute, there is hardly

any reason to doubt the claim of PI Kanani that he found

out the houses of the accused; and that the houses are

situated in the same locality.

820. The addresses of the accused, as given by them

during their original trial and also to this Court when

their plea was recorded, clearly show that they are the

residents of Hanuman Tekdi and/or Daboi Road locality

only. The only exception being accused no.14 - Jagdish

Rajput - who, when his plea in this Court was recorded,

gave a different address. The addresses of the accused

as residents of Hanuman Tekdi, Daboi Road, have never

been disputed by the accused persons.

821. Interestingly, even in the cross-examination of PI

Kanani, it was specifically put to him that because of

the insufficiency of the information regarding the

identity of the culprits, he merely arrested the persons

from the locality [on page 3393 of the Notes of

 582

Evidence]. Thus, this suggestion which gives a reason

for the arrest and implication of the accused is a clear

admission of the accused persons being from the locality.

In fact, that is, precisely, suggested to be the reason

for their arrest and implication.

822. Yasmin's previous statement, that her mother-in-law

and her sister-in-law had pressurized her to give the

names of the persons from the 'faliya'/ locality, has

been brought on record by the defence as their suggestion

for the false implication of the accused. Now, in this,

an admission that the accused are from the locality, is

implicit.

823. Even at the conclusion of the trial and after taking

a stand disputing the accused to be the residents of the

same locality, a tacit admission that they are actually

from the same locality, has come from the defence. It is

in the context of Yasmin's evidence. It may be recalled

that Yasmin's evidence on identification was sought to be

challenged on the ground that admittedly, after the

previous trial, Yasmin went on to reside in the Best

Bakery premises; and that the accused having been

acquitted, were moving in that locality. It was

positively suggested to Yasmin that it is at that time

she came to know the accused. That she knew the accused,
 583

was sufficiently and satisfactorily established and

Yasmin's evidence in that regard could not be doubted.

An argument has been advanced that all the accused, after

their acquittal, were moving freely and the possibility

of Yasmin having come to know them during this period

could not be ruled out. However, the possibility of

coming across would be only when they would be the

residents of the same locality as is clear of Yasmin's

evidence. Such general acquaintance and knowing about

their details would be possible if they would be from the

same locality. Thus, leaving aside the question as to

when Yasmin came to know the accused identified by her,

the suggestions and the contentions discussed above

indicate that the accused - at least those who have been

identified by her - are the residents of the same

locality.

824. The evidence of D.C.P. Patel and PI Baria clearly

shows that it was told to them on the spot itself that

the assailants - or at least some of them - were from the

Hanuman Tekdi locality only. That they were known, was

told to them and in fact, their names were also given.

These statements made by D.C.P Patel and PI Baria are

clearly admissible in evidence under Section 6 of the

Evidence Act. The evidence of D.C.P. Patel and PI Baria

in that regard is acceptable and is further confirmed by

 584

a further fact deposed to by them - viz. at that time

itself, search for accused in the Hanuman Tekdi locality

was made. Thus, this also indicates that at least a

number of assailants/offenders were from the Hanuman

Tekdi locality only.

825. It may be of interest to observe that during the

previous trial, the stand of the accused themselves was

that they were residents of the same locality. In the

cross-examination of [Link] Bhatt [P.W.43 in this

trial and P.W.29 in the previous trial] during the

previous trial, it was brought on record in the cross-

examination that the accused before the Court were the

persons from her 'mohalla'/ locality. A positive case

was built in the previous trial that the accused had

saved Muslim families residing in the area. The

deposition of Jyotsnaben Bhatt in the previous trial has

been marked as Ex.158 by consent; but even without

exhibiting the same, being a part of record, this Court

is competent to look into that deposition, not for

establishing the facts stated therein or for using the

same as evidence in this trial, but for knowing, as a

fact, what it contains.

826. Kanchan Mali [P.W.44 in this trial and P.W.28 in the

previous trial] also deposed during the first trial that

 585

the accused before the Court were from his 'mohalla'. Of

course, he did say that they had done the work of saving

the Muslims at the time of the incident. What is

significant is that this was elicited from him in the

cross-examination. The question is not of establishing

the truth of that version, but the question is of

understanding that the accused never made any dispute

regarding the fact of their being from the same

'mohalla', - rather, they invited such evidence.

827. In fact, this much material is sufficient to come to

a conclusion about the accused persons being indeed from

the same locality. One can safely conclude on this basis

that the denial of this aspect is a clear afterthought

occasioned by the realization that this would afford

strength to the evidence regarding their identification

as the culprits. However, one more circumstance

indicating this may be mentioned here. While replying to

a question and indicating that she could not state who

were throwing the bottles on the terrace, Saherunnisa

[P.W.40] said 'persons from outside had also come [“bahar

ke bhi aaye the”]' [Emphasis supplied] [page 1007 of

Notes of Evidence]. It is interesting to note that

Saherunnisa was asked by [Link], the learned Spl.P.P.,

as to whether if certain persons are shown to her, would

she be able to show who were her neighbours and who were
 586

outsiders. Saherunnisa replied, after taking a long time

gap, that since she had not seen them, how could she say

that they were there, and this resulted in the next

question as to about whom she was saying, to which

Saherunnisa replied that she was being questioned about

the neighbours; and that she was talking about the

neighbours. In other words, What Saherunnisa conveyed is

that she had not seen the accused at the time of the

riots, but by implication, admitted that they - or at

least some of them - were the neighbours.

828. There can therefore be no doubt whatsoever that the

accused persons are from the same locality. There is

also no doubt that apart from the evidence in that

regard, this is indicated by the own admission of the

accused persons, the only exception being accused no.14

whose address is given as of a different area or

locality.

829. Once it is satisfactorily established that the

accused are from the same locality, nothing more is

required to accept the statements of the witnesses that

they knew them unless it is shown positively that the

witnesses are lying in that regard. In fact, when they

are the residents of the same locality, there would be

every possibility of they being previously known to them.

 587

Such presumptions of previous acquaintance or prior

knowledge are quite often drawn by the Courts of law from

the evidence of the accused and witnesses residing in

nearby localities. The observations made by the Supreme

Court of India in Harinath V/s. State of U.P. (1988) 1

SCC, 14, show that an inference of prior knowledge on the

ground of the accused and the witnesses being residents

of villages in close vicinity and being students of the

same institution was drawn in that case. The Supreme

Court also referred to its own observation in Bali Aher

V/s. State of Bihar, AIR 1983, SC 289, wherein, from the

fact that the appellant before the Supreme Court was

belonging to the neighbouring village at a distance of

less than a mile, an inference that the identifying

witnesses knew appellant Bali Aher from before, was

drawn. It is to be remembered that the context in which

the observations were made, was quite different and

there, the inference of prior knowledge was drawn in

spite of the fact that the claim of the witnesses was

otherwise. In other words, even when there would be no

such claim of witnesses, prior acquaintance,

nevertheless, may be inferred from the fact that the

accused and the witnesses are the residents of the same

locality or a nearby locality. Here, there is a positive

claim of the witnesses of such knowledge and the fact of

they being residents of the same locality is only a

 588

factor which strengthens the claim.

830. Thus, there is absolutely no reason to disbelieve

the witnesses, when they say that the accused identified

by them were known to them since before; and that they

used to see them in the 'mohalla'. No fault with the

evidence of identification on the ground that no test

identification parade was held, or that the identity of

the accused persons was not got confirmed from the

identifying witnesses during the investigation, can

therefore be found.

831. The only question that now requires consideration is

whether the evidence of identification should be

disbelieved on the ground that either the names or the

details or particulars of the accused identified by the

witnesses were not mentioned by them to the police. It

is true that failure to mention the names of the culprits

where they were known, or to give their relevant details

and/or particulars, would be an omission to state a

material and significant fact. Whether the effect of not

naming the culprits or not giving relevant details or

information to the police would result in rejection of

the evidence of identification made by such witnesses

later in the Court is a matter that would depend on a

number of factors. This would involve consideration of

 589

the explanation, if any, in that regard by the witness.

This would also involve consideration of the manner in

which and the circumstances in which the statements were

recorded. Above all, it would require consideration of

the authenticity and reliability of the record made by

the police itself. It has been earlier remarked by me

that the authenticity and accuracy of the police record

of the statements under Section 161 of the Code in this

case is absolutely unreliable. At this stage, this may

be throughly discussed.

Is the record of statements under

Section 161 of the Code, reliable ? - [No]

832. In reality, there ought not to be any dispute on

this. The learned Spl.P.P. says that due to the number

of cases of serious offences that were being registered

at the material time and the serious law and order

problems which the police had been facing, it was not

possible for the police to make detailed inquiries with

the witnesses and try to elicit detailed information from

them. Further, according to her, considering the mental

and physical condition of the injured witnesses it was

impossible to expect that they would give minute details

of the incident. Thus, according to her, neither a

proper probe was possible nor was it possible to maintain

an accurate record of what the witnesses said. The

learned Advocates for the accused have also criticized

 590

the record as unreliable. According to them, some of the

statements of the witnesses are false, fabricated or

concocted. It is contended that such statements are a

creation of PI Baria [P.W.72]. Thus, though the reasons

for the unreliability of the record as advanced by the

parties defer and though the inferences which they expect

the Court to draw from such unreliability are different,

about the fact of the unreliability of the record, they

are in agreement.

833. After carefully considering the entire evidence in

that regard, I am of the opinion that the authenticity

and accuracy of the statements recorded by Baria can not

be relied upon. The statements of the occurrence

witnesses have been recorded by Baria in Gujarati

language. All these witnesses are Hindi speaking. They

have given their evidence in Hindi. Baria, on the other

hand, expressed his inability to depose in Hindi or

English and has given his evidence in Gujarati. Baria has

mentioned the procedure followed by him while recording

the statements of the witnesses as follows.

834. PI Baria would first record the date and then the

name, address etc. as given by the witness. It is

thereafter, that the narration of the witness would be

recorded as 'on being asked in person', 'I give in

 591

writing that....'. After the narration would be over,

Baria would conclude the statement by recording 'Etli

mari hakikat chhe', or words to the effect that 'these

are the facts'. Ordinarily, whatever the witness would

narrate, Baria would record, but whenever it would be

necessary to put a question, he would put it. He never

added anything to the narration and never omitted

anything from the narration. The date of recording was

put on the statement, but the time of recording was not

put. Now, PI Baria does not say that the statements

would be read over by him to the witnesses. The

statements do not contain a note or endorsement thereon

to that effect. In other words, neither the record of

the statements itself, nor Baria's oral evidence shows

that the statements were read over to the concerned

persons after they were recorded. Rather, it establishes

that they were not read over to the concerned witnesses.

The alleged discrepancies, contradictions or omissions in

the evidence are to be appreciated by keeping this in

mind. This is apart from the fact, as observed earlier,

that most of the contradictions and omissions that have

been brought on record are insignificant and immaterial.

The only significant and material omission would be to

state the names of certain accused persons as being

present in the mob, in case of those witnesses who claim

to have known them from before.

 592

835. This was regarding the possible inaccuracy of the

record on the basis of difference in language and failure

to read over. However, what appears to me is that the

record has not been honestly and sincerely made, as is

clear from the following.

A] In the recorded statements of all the

occurrence witnesses, there is a mention of one

'Social Worker Thakkar' as being present in the

mob during riots. This has been brought on

record by the learned Advocates for the accused.

'Social Worker Thakkar' had died much before the

incident. There is no dispute about this. Now,

this has been brought on record by the defence

to show how untruthful all the witnesses are,

and how there was a conspiracy of all of them to

name a person falsely which is exposed because

that person is proved to have died earlier. It

is also vehemently contended by Shri Shirodkar

that being a social worker, he was a leader of

the Hindu community and therefore, he was sought

to be falsely implicated by all the occurrence

witnesses. The claim of all the witnesses

having conspired to falsely implicate 'Social

Worker Thakkar', is ridiculous, as has been

discussed earlier. It may be added that the

 593

statements of the occurrence witnesses were

recorded on different dates. The statements of

Sailun [P.W.32] and Shehzad [P.W.28] were

recorded on 06/03/2002 while the statements of

Raees [P.W.27], Taufel [P.W.26], Nafitulla

[P.W.31], Nasibulla [P.W.30], Yasmin [P.W.29],

Sehrunnisa [P.W.40] and Sahera [P.W.35] were

recorded on 04/03/2002. Except the women, all

these witnesses, were very severely and badly

injured. The injuries had endangered their

lives. Under these circumstances, that they had

conspired to falsely implicate 'Social Worker

Thakkar' [who was already dead] falsely and that

too when all of them were very badly injured, is

impossible to believe or accept. In the F.I.R.

there is a mention of 'ˆÅ¸¡¸ÄˆÅ÷¸¸Ä “ˆˆÅ£' [Social Worker

Thakkar]. It is clear from PI Kanani's evidence

that it was a mistake of the writer – i.e. Baria

– to have recorded accordingly. Having put the

name of 'Social Worker Thakkar' in the F.I.R. by

mistake, the same mistake has been made in all

the statements. This indicates that in reality

no statements were properly recorded. The facts

already known or ascertained from one witness

were put in the record of another's statement.

In the serious law and order problem, which the

 594

police were facing at that time, this was very

convenient for Baria to do. It is, otherwise,

impossible to explain this common mistake in the

statements of all the occurrence witnesses.

B] There is also another clear indication of

the statements not being truthful. The evidence

shows that the name of the wife of Aslam

[P.W.42] who died in the incident was actually

Shabnambibi. The name of the wife of Firoz

Aslam Shaikh who also died was Ruksana. The

evidence in this regard, is not in dispute. In

fact, PI Kanani made the necessary corrections

in the notes of the post-mortem examinations

with respect to these persons. In the F.I.R.,

however, the name of Aslam's wife is given as

'Zainabbibi' and the name of wife of Firoz is

given as 'Shabnambibi'. This is an obvious

mistake. It is quite possible to believe that

in the situation that existed at that time when

Zahira and others were in a shock, such a

mistake could occur in the F.I.R. The mistake

could be either of Zahira or of the person who

recorded the F.I.R. - i.e. the writer and/or PI

Baria. What is interesting is that this mistake

in the names has been made by all the occurrence

witnesses, if their statements recorded by PI

 595

Baria are to be believed to be an accurate

record of what they stated to him. In other

words, for believing the record of the

statements of the occurrence witnesses made by

Baria to be accurate, one has to believe that

all these persons – though their statements were

recorded at different times and in some cases on

different dates – made the same mistake - i.e.

in giving the name of the wife of Aslam and of

giving the same wrong name. Similarly, they

also made a mistake in giving the name of the

wife of Firoz; and that too, by giving the same

mistaken name – i.e. Shabnambibi. That 10

persons would independently and wrongly name

'Shabnambibi' as 'Zainabbibi' and 'Ruksana' as

'Shabnambibi', is nothing but an absolute

impossibility. This shows that the statements

of the occurrence witnesses were not properly –

if at all – recorded.

C] It is contended by the learned Advocates

for the Accused that the statements are so

identical, that there is a not even a difference

of coma; and that therefore this shows that

there are not genuine. I am in agreement with

the learned Advocates. It is extremely doubtful

whether the statements of the various witnesses

 596

are a record of what was stated by them. In the

statement of Saherabanu [P.W.35] she has

mentioned about the limbs of 'both her brothers'

being tied by the mob. In Saherunnisa's

statement also, she speaks of the mob tying down

the limbs of 'both her brothers'. Saherabanu's

mentioning about the brothers was proper, but

Saherunnisa's was certainly wrong and she would

never call her sons as her brothers. This shows

that what was recorded in one statement has been

mechanically copied out. Though a reference to

these statements was made by the Advocates for

the accused themselves to point out that they

can not be relied upon as a genuine, true or

authentic record, a possible objection that it

is impermissible for the Court to read the

statements in view of the bar created by Section

162 of the Code has been considered by me. This

comparison of record of the statements does not

amount to making the use of the statements. It

is not that the facts recorded in the statements

are being referred to or relied upon. Looking

at them, for ascertaining the correctness of the

claim of they being manipulated or concocted,

raised on behalf of accused, would not attract

the prohibition against their use laid down by

 597

Section 162 of the Code.

D] In the F.I.R., there is a mention that

Yasmin had gone to her parents place at Chhota

Udepur. This is supposedly said by Zahira and

accordingly recorded by PI Baria. However,

since Yasmin was actually present, it is highly

unlikely that Zahira would state so. There

appears to be an obvious mistake caused due to

the situation, in which not only the victims,

but the police were also tense. However, Baria

had himself come in contact with Yasmin. Having

seen Yasmin at the scene of the offence, it was

impossible for PI Baria to have recorded that

Yasmin had gone to Chhota Udepur, had he calmly

and sincerely recorded the statements. He would

have at once questioned Zahira and Yasmin on

this, so as to ascertain the facts.

e] It has been seen earlier during the

discussion of the evidence of Shehzad [P.W.28]

that, that he stated before the police about

falling unconscious on being hit by a stone is

brought on record to contradict him. It has also

been discussed that it is not possible to

believe that Shehzad indeed made that statement

particularly when he denied having made it. How

it is incorrect factually has also been

 598

discussed. The point which is to be made here

is somewhat different. The question is, on the

face of the injuries sustained by Shehzad, how

could Baria believe and accept that he was hit

by a stone on his head without questioning

Shehzad further. Shehzad's statement was

recorded while he was admitted in the ward.

Baria made no attempts to ascertain from the

doctor as to whether Shehzad was in a fit

condition to make a statement. This shows that

Baria did not even bother to see what were the

injuries sustained by Shehzad.

This strengthens my opinion that the record of the

statements under Section 161 of the Code, as made by

Baria, cannot be relied upon.

836. When Sailun and Shehzad themselves state not having

said anything to the police, that certain matters are

actually found, in what purports to be a record of their

statements, is to be viewed in this background. That

Sailun's statement is concocted, is contended by the

learned Advocates for the accused themselves. I agree

with them, in as much as such possibility seems to be

very true and real to me. In fact, I doubt whether PI

Baria was really interested in efficiently investigating

 599

into the matter. The attitude of PI Baria, while

giving evidence, strengthens this doubt in my mind.

837. Irrespective of whether the investigation was

deliberately perfunctory, or that because of the

difficulties of the situation, the I.O. could not do it

properly, the fact remains that the record of the

statements of witnesses, as made by PI Baria, cannot at

all be called as 'authentic', or 'reliable' in either

case. Obviously, not much value, under the

circumstances, should be given to the 'contradictions'

and 'omissions' established on the basis of such record.

838. In Baladin and others V/s. State of U.P., A.I.R.

1956 SC 181, the Supreme Court of India has dealt with

this aspect. In that case, the Hon'ble Supreme Court

came to the conclusion that the police officers concerned

with the investigation of the case, did not fully realize

the gravity of the situation and did not take prompt

steps to collect evidence. The Hon'ble Supreme Court

observed that,

“The remissness on the part of the

police officers has had a very adverse

effect on the prosecution case and has

added to the difficulties of the court

 600

in finding out who the real culprits

were”. [para 7].

The Supreme Court of India referred to the observations

of the Sessions Court whereby it was observed that the

contradictions in the statements of the concerned eye

witnesses, as compared with the statements recorded by

the I.O., should not be allowed to affect the credibility

of those witnesses because there were clear indications

that he did not faithfully record the statements of those

witnesses. In appeal, the High Court also held that the

investigation suffered from lack of thoroughness and

quickness, with the result that statements of witnesses

were recorded in the 'most haphazard manner' and many

matters of importance and significance to the case were

omitted. However, the High Court had acquitted the

accused who were appellants before it, whose names did

not find a place in the record made by that police

officer. Their Lordships of the Supreme Court of India

did not approve this and observed that the High Court had

fallen into an error in doing so. The Supreme Court

observed :-

“.......it (High Court) rejected

reliable testimony with reference to

that very record which it had

condemned as unreliable'. [para 11].

 601

839. After observing that the record made by an

Investigating Officer has to be considered by the Court

only with a view to weigh the evidence actually adduced

in Court, the Supreme Court said as under :-

'If the police record becomes suspect

or unreliable...... on the ground

that it was deliberately perfunctory

or dishonest, it looses much of its

value and the Court in judging the

case of a particular accused has to

weigh the evidence given against him

in Court keeping in view the fact

that earlier statements of witnesses,

as recorded by the police is tainted

record and has not as great a value

as it otherwise would have in

weighing of the material on the

record as against each individual

accused.” [Para 11].

The observations of the Supreme Court of India in the

aforesaid reported decision leave no manner of doubt that

not much importance can be given to the so called

'contradictions' and 'omissions' where the authenticity

or reliability of the police record is itself in doubt.

These observations cannot better apply to any other case

than the present one. The aforesaid discussion leaves no

 602

manner of doubt about the unreliability of the record

made by PI Baria.

840. What needs to be emphasized is the fact that the

name of a culprit though known, was not given to the

police by the witness can not lead to the automatic

rejection of the evidence of the witness. As already

observed, it is nothing more than the omission to state a

material fact, the effect of which will vary from case

to case.

841. In Dana Yadav's case [supra] wherein the Supreme

Court of India had occasion to discuss this aspect it was

observed by Their Lordships that 'there could not be an

inflexible rule that if a witness did not name an accused

before the police, his evidence identifying the accused

for the first time in Court can not be relied upon'.

[Para-9]. Some instances where failure to name an

accused in the statement made before the police, though

known, would not result in drawing an adverse inference

against the prosecution were given in the judgment by way

of illustrations and it was clarified that they were not

exhaustive. There may be several reasons for a witness

not to name the culprit or even to state that the culprit

was known to him and if the reasons are found acceptable,

the evidence of the witness can not be doubted, only due

 603

to such failure. A perusal of the reported judgment in

the Dana Yadav's case leaves no manner of doubt that such

omission on the part of the witness would only require a

deeper and closer scrutiny of the evidence and does not

warrant its outright rejection. In the said case, the

Supreme Court of India did not accept the testimony with

respect to the identification of the appellant before the

Supreme Court of India, because there was no evidence in

that case, that the appellant was known to the

identifying witnesses from before.

842. In Prem Versus State of Maharashtra 1993 CRI. L.J.

1608, a Division Bench of the Bombay High Court had

occasion to discuss the effect of the victim not naming

the assailant before the police, though previously known.

Their Lordships observed that the victim had suffered a

brutal assault and survived owing to sheer luck. Their

Lordhips accepted the explanation of the victim in that

regard - viz. 'that due to fear he had not disclosed the

names of the accused'. Thus, fear also can be recognized

as one of the factors which would prevent the victim

from naming the assailants before the police. In the

instant case, Taufel, Raees, Shehzad and Sailun all had

been very badly injured and the condition of all of them

was serious. How tense the situation was, is clear from

Baria's evidence who was apprehending some attack even

 604

during the funeral rites of the deceased. If this was

the situation, the victims must have been under

tremendous fear while in the hospital also. There is

nothing to indicate that any police protection was

provided to them in the hospital. Under these

circumstances, if the victims have not named some of the

assailants, though known to them, the same would not be

sufficient to discard their testimony.

843. It is also contended that, according to the

victims/witnesses the offenders were 'unknown'. The

support to this claim is sought by pointing out that the

victims had described the offenders as a 'mob of Hindus'

or 'mob of persons’; and that even in the hospital the

history which they gave to the doctors was of 'assault by

mob' only. First of all, the history as ‘assault by mob’

or ‘assault by lakdi’, as is found in hospital records,

was not based on the version of the concerned injured

witnesses. According to [Link] Robin [P.W.46], the

history in respect of all the injured, including himself,

was given by Raees [P.W.27] only. That this is not

believable in view of the failure of Raees to name his

own colleagues and the evidence about his condition not

being good, has already been discussed. Further, the

history given by him as ‘assault by lakdi’, is also

incorrect in view of the incised wounds on his body.

 605

Thus, the least that can be said is that by whom exactly

and under what circumstances the history was given, is

not clear. Looking to the situation, it is obvious that

it was recorded hurridly in the midst of a crowd and

confusion and it is impossible to hold that it was

obtained from the victims themselves, or at any rate, as

a result of a proper and satisfactory probe. However,

even if the unreliability of the hospital record and the

police record in this context is ignored, it can not be

accepted that 'mob of Hindu persons' or ‘a mob’ or

'public' would mean that the assailants were 'unknown'.

A fundamental question needs to be addressd to; and that

is, whether the history as 'assault by a mob' or 'assault

by public' is in any way, contradictory to and/or

inconsistent with the claim of the victims that they knew

some of the persons in the mob.

844. Not only I do not agree with the contention

raised, but after a careful consideration of all the

relevant aspects, I am of the opinion that 'assault by

mob' or 'assault by public' is a proper description of

the happenings. The question is how the incident was

perceived by the victims at the material time. The

victims had been attacked by Hindus or a Hindu mob. From

their point of view, there was no other interpretation of

the incident. As such, even if the names of some of

 606

the offenders who were known to the victims, are not

found in their statements, it can not discredit the

concerned witnesses. I find that the basic supposition

about the behaviour or reaction or perception of the

witnesses regarding the incident, is wrongly presumed

when one expects that they should have mentioned

specifically inspite of the situation prevailing at that

time, that a few of the offenders were known to them. If

a thought is given to how the victims would express as to

what had happened, the narration as 'assault by mob' or

'assault by public' or 'assault by Hindu mob' etc.

appears to be giving a rather accurate version of the

incident. This would be more natural than stating as

'assault by Jitu and about 1000 others' or 'Jitu, Sanju,

Jayanti and about 1000 others' etc. etc. The attack was

indeed by a Hindu mob with no particular enmity towards

any particular victim. The actions of the individual

accused were only a part of the actions of the mob and

naturally were perceived as actions of the mob by the

victims and witnesses. In my opinion, under these

circumstances, the history of the incident as 'assault by

mob' or 'assault by public' is proper and that is how it

was perceived by the victims and witnesses. Whether

anybody from the mob was known to the witnesses was a

matter which could be revealed by the witnesses only on

specific questioning. In the light of the evidence, as to

 607

the condition of the injured, the tense atmosphere, the

heavy burden on the police, it is impossible to hold that

any attempt to elicit this specific information against

the offenders was made, or the injured witnesses were in

a position at the material time to give such details.

845. It is contended that the offenders were not named by

the witnesses, inspite of having been questioned about

it. To support this contention, much emphasis is placed

by the Advocates for the accused on the evidence of PI

Baria. In the cross-examination Baria has agreed with the

suggestions given to him that while recording the

statements 'the police do ask about the name of the

culprit, his address etc.', that 'the police do ask the

witness to give full name of the offender', that 'the

police invariably ask the witness to give full names,

that they invariably try to ascertain the detailed

address of the offender' etc. etc. All these suggestions

which show that PI Baria always investigates in an

efficient manner, have been accepted by him. PI Baria has

agreed that if in any statement under section 161 of the

Code such information viz:- name, full name, address and

description etc. of the offender is not found, that would

mean that the inquiries in that regard were made, but no

information regarding these aspects were given by the

witnesses. I am not inclined to accept the evidence of

 608

PI Baria on this aspect. He has naturally accepted the

suggestions put to him because that would show that he

usually investigates every case efficiently; and that in

the instant case also, he investigated efficiently.

These statements being self serving, it is very

convenient for him to accept the same as true. However,

from the various weaknesses apparent in the record made

by him, it is clear that the statements have not at all

been properly recorded by him. Further, in the situation

that was prevailing at the material time, it was

impossible for PI Baria to have coolly and calmly

elicited such details from the victims who were badly

injured and under fear. Moreover, no statement contains

a negative to the effect that 'I do not know the name',

'I do not know the address', 'I can not give the

description' etc. etc.; and if Baria's claim that he

never omitted or added anything from the narration of the

witness is accepted, then how and why the negative

statements made by the witness are not recorded, is

unanswerable.

846. As a result of the aforesaid discussion, I have no

hesitation to conclude that the evidence of the

supporting eye witnesses regarding the identification can

not be discredited on the ground that they had not named,

or had not given the description of the accused

 609

identified by them to the police, though they were

previously known.

847. Why then, the evidence of these witnesses, should

not be believed as regards the identification of the

accused as made by them, particularly when, a discussion

of their evidence shows that there is nothing

contradictory, incredible, improbable or inconsistent in

it? A number of contentions have been raised as regards

the general unreliability of the supporting occurrence

witnesses, which may be examined here.

848. It has been emphasized that the accused are poor

victims of a well planned conspiracy. It was submitted

that the supporting eye witnesses have been tutored by

[Link] Setalvad. Secondly, it was submitted that due

to the fear of the Supreme Court of India and of the

persons who secured an order from the Supreme Court to

have a retrial, the witnesses are keen on ensuring that

the accused are convicted, and are giving evidence in

furtherance of that object. It is submitted that for the

same reason, even the police witnesses are making

improvements in their evidence by stating facts not

deposed to by them in the previous trial. I find no

substance in these contentions.

 610

849. The contention that the witnesses had been tutored

by [Link] Setalvad is based only on the undisputed

fact that Raees and Shehzad were in contact with her and

had spoken to her about the case. The interest of

[Link] Setalvad and her organization in the present

retrial is obvious and no attempt has been made by the

concerned organization to deny that. It also appears

that Raees and Shehzad were contacted by them to ensure

that they appear as witnesses before this Court These

witnesses have specifically denied [Link] Setalvad

having told them as to what evidence was to be given in

the case. I have considered the matter. Mere discussion

about the case would not necessarily indicate 'tutoring'.

It is not an accepted proposition that the witnesses are

never to be contacted by anyone, or spoken to about the

matter regarding which they are to depose. A number of

things can be told to the witnesses, such as, not to be

nervous, carefully listen to the questions put to them,

state the facts before the Court without fear; and I do

not think that this can be considered as objectionable,

morally or legally. Tutoring a witness is quite

different from guiding him as to his behaviour, as it

should be in the witness box. In this case, the injured

witnesses were obviously in such a state of mind that

without the active support of someone, they might not

have come before this Court, to give evidence at all. If

 611

such support, encouragement and even advice is provided

to them, it cannot be called as 'tutoring'. Since the

witnesses were in contact with [Link] Setalvad and

were speaking to her about the case, the possibility of

they having been tutored by her is certainly required to

be examined, but simply because of that, an inference

that they were tutored, cannot, automatically, be drawn.

850. After carefully considering the matter, it does not

appear to me that in the instant case, witnesses had been

tutored.

851. First of all, from the testimony of the occurrence

witnesses, they do not appear to have been tutored. The

signs of having been tutored were not found while

analyzing their evidence. While discussing the evidence

of these witnesses, it has been noted that they appeared

to be truthful. They have avoided attributing false

overt acts to the accused identified by them which would

have been quite easy for them. A number of instances are

found in the evidence of these witnesses where they could

have implicated more accused than identified by them or

where they could have attributed more serious acts to the

accused, identified by them which has not been done.

Secondly, they could be tutored only by a person who knew

the facts. It is difficult for a person who was not

 612

present at the time of the incident to tutor an

occurrence witness and if at all this can be done, it

would be based on the records of the case, which does not

seem to have happened in the instant case. Even some

grave incriminating matters, though found in the police

record of the statements of these witnesses, have not

been stated by them in their evidence, sometimes even

after confronting them with such record. Thirdly, in

this case, the happenings of the incident and the manner

in which it took place, is not in dispute at all. So the

aspect of tutoring would be confined to the

identification. It seems quite unlikely that [Link]

Setalvad would be able to tutor to identify a particular

person as the culprit. It is not easy to tutor one to

identify another not previously known to the one or even

to the person tutoring. Tutoring of this type would

require the person tutoring the concerned accused and the

concerned witnesses to be together for a reasonable time

or on one or more occasions. Moreover, the tutoring in

such cases would be in consonance with the police record

or the prosecution case, which has not happened in this

case. 'Painter' and 'Pratap' whose names figured in the

F.I.R., and who according to the prosecution case are

accused no.5 and accused no. 10 respectively, have not

been identified by any of these witnesses. Probably

being aware of this weakness in the contention of the

 613

defence, a feeble attempt was made to show how it would

be possible by suggesting to PI Kanani that he had shown

enlarged photographs of the accused persons to the

supporting occurrence witnesses with the help of Smt.

Teesta Setalvad and one Raees Khan, which has been denied

by him. The witnesses themselves were not suggested that

they were shown any photographs of the accused persons

and were tutored to identify them. That this is clearly

an afterthought of the defence is also clear from the

fact that when Taufel and Raees were examined, the

learned Advocates for the accused had made a request that

after identification of a particular accused by pointing

out, the name of such an accused may not be uttered

loudly. It is obvious that this precaution which the

learned Advocates for the accused wanted to be taken in

the process of recording of evidence, was not consistent

with the theory of the witnesses having been shown

enlarged photographs of the accused. Further, the

witnesses have not identified the same accused. There

has been not even one wrong identification, where the

accused were identified by naming and pointing out. While

appreciating the evidence, the manner in which it is

given, the manner in which the varying suggestions are

given in the cross-examination, are often of

significance. It was put to PI Kanani that he had done

the tutoring with the help of [Link] Setalvad, which

 614

has been not only denied, but ridiculed by PI Kanani, by

stating that he was not even on talking terms with

[Link] Setalvad. PI Kanani stated that it was

because she had made allegations against the

investigating agency. This statement of PI Kanani has to

be accepted as true. Even Zahira does not say that any

photographs of the accused were actually shown to her by

[Link] Setalvad. All that she says is that

[Link] Setalvad was to procure the photographs.

Thus, till Zahira left for Vadodara, no photographs of

the accused are shown to be available to [Link]

Setalvad. Under the circumstances, it cannot be accepted

that any photographs of the accused were shown to the

occurrence witnesses by [Link] Setalvad, or by PI

Kanani, who was not in touch at all, with any of them.

It may be recalled that the accused were never made to

sit in the Court-hall according to the serial numbers

given to them in the chargesheet, or in any other fixed

order. Their names were never loudly being called out in

the Court. It is, under these circumstances, that the

identification in the Court has taken place. In some

cases, while identifying a few out of the 17 accused, the

names have also been given by the identifying witnesses.

There has been no wrong identification by any of the

identifying witness in such cases. The identification

has taken place under the observation of the Court

 615

enabling the Court to view the actions of the identifying

witnesses. It does not seem to me that there is any

substance in the contention of tutoring.

852. In the context of witnesses having been tutored, an

argument advanced by Shri V.D. Bichu, the learned

Advocate for the accused needs to be dealt with. [page

19-20 of the arguments filed by him at Ex.522/A]. It is

contended that since the order for holding a retrial and

that too, out of State of Gujarat was secured from the

Supreme Court of India by the N.G.O. - Citizens for

Justice and Piece – for obvious reasons, it become a

matter of prestige for them. It is contended that it was

therefore 'only human to expect that efforts would be

made towards their further success, which could be

achieved by securing conviction of atleast a few of the

accused persons'; and that therefore, the witnesses were

bound to be tutored. It is dangerous to accept such

propositions. On the basis of the same arguments, it can

be said that it also became a matter of prestige for

those by making allegations against whom and because of

whose blameworthy conduct, a retrial was ordered out of

State of Gujarat, to show that there was nothing wrong

whatsoever, in the previous trial. The said N.G.O. had

made allegations against the State machinery itself,

which were believed to be true atleast substantially by

 616

the Supreme Court of India while ordering a retrial out

of the State. Can it, on the same logic, be said that it

was only human to expect that efforts would be made for

the failure of the N.G.O., which could be achieved by

making the witnesses turn hostile again? This, if

accepted, would change the entire perspective in which

the evidence is required to be appreciated. The manifest

antipathy shown by the hostile witnesses to the entire

prosecution case, can not be the result of a mere desire

to ensure the acquittal of the accused. In this context,

the contention advanced by Shri Shirodkar to the effect

that the accused have not influenced the hostile

witnesses, and that the accused are poor persons having

no influence, needs to be taken into consideration.

While this appears to be true, judging by the social and

financial status of the accused persons, the fact remains

that there are others who are powerful enough to

extend great financial support and legal services to the

hostile witnesses. However, the evidence can neither be

appreciated on the basis that the said N.G.O. is likely

to have a motive which would induce them to tutor the

witnesses, nor on the basis that the State authorities or

the State Government have a motive to show that there was

nothing wrong in the previous trial, or that the

witnesses had not turned hostile due to any lapses on the

part of the State machinery which would induce them to

 617

make the witneses turn hostile again. Even if the

alleged bad motives of the N.G.O. as attempted to be

attributed to it by the Advocates for the accused are

accepted for the sake of arguments, there would be no

interest for them to secure conviction of the accused.

Rather their interest would be to show that Zahira and

others are being manipulated. Though it might have

become a matter of prestige for the said N.G.O. to show

that they had fought for truth, or, at any rate, what was

believed by them to be the truth, it would not mean that

they would tutor witnesses to falsely identify a few

accused for securing a few convictions.

853. It is pointed out by Shri Mangesh Pawar, the

learned Advocate for the accused that the accused no.15 -

Dinesh Rajbhar- had lodged a written complaint in this

Court, against Smt. Teesta Setalvad for having threatened

him in front of a police constable by saying 'tujhe main

dekh loongi, aaur sabko chhodoongi nahin'. On this, it

is contended that this shows the extent of interestedness

of Smt. Teesta Setalvad and the grudge which she bore

against the accused persons. When the Court asked

whether the accused wanted any action to be taken or any

inquiry to be made into the complaint, it was stated that

no action was intended to be taken and the matter was

only to be kept on record. A mere putting an allegation

 618

on record; without expressing a desire to establish the

truth of it, at least prima-facie, will not enable this

Court to draw any inference regarding the happening of

the alleged incident or at any rate, the exact manner in

which it happened.

854. That the witnesses are scared of the Supreme Court

of India and of the persons who got the order of retrial

[meaning [Link] Setalvad and her organization], is

also without any substance. It may be observed that

there are a number of witnesses who turned hostile even

during the retrial. What is really significant is that a

number of witnesses were not ready to support the

prosecution even to the extent they had done in the

previous trial. [Link] Bhatt [P.W.43], Kanchan

Mali [P.W.44], Avdhut Nagarkar [P.W.23] and even Zahira

and her family were not ready to admit even the matters

which had been admitted by them in the previous trial.

In my opinion, not only the contention is without any

substance, I find that the hostile witnesses were more

determined not to speak the truth during the retrial.

855. During the cross-examination of PI Kanani, it was

brought on record that he has stated some facts which he

had not stated in the previous trial and this is stated

to be a result of the desire to secure a conviction due

 619

to the fear of the Supreme Court of India. It was

suggested to him that whatever additional evidence, -

i.e.- evidence not given in the Court at Vadodara, but

given here – he gave, was false. PI Kanani while denying

this categorically, stated that it was supported by the

case diary. I do not find that the 'additional evidence'

as has been referred to by the cross-examiner is about

any new facts. Rather than calling it as 'additional

evidence', it can be properly termed as 'detailed

evidence'. Moreover, PI Kanani has given a reason as to

why he had given detailed evidence which may be best

mentioned in the very words used by PI Kanani.

“Considering the circumstances prevailing at

that time, whatever possible was done and

our best was done in the investigation.

Inspite of this, the investigation carried

out in this matter came to be criticized in

the trial court as well as in the High Court

of Gujarat. The complainant party also

criticized police. In this background, I

thought it necessary that the detailed

evidence regarding the investigation should

be given here.”

856. According to me, this explanation given by PI Kanani

is rational, logical and I believe the same as true. PI

 620

Kanani has stated that whatever 'additional evidence' has

been given by him, is based on the record and is

supported by entries in the case diary. Even otherwise,

no attempt has been made to show or challenge that the so

called 'additional evidence' is not true. The inference

that it is not true is expected to be drawn only from the

fact that he did not give such a detailed account of the

investigation in the first trial. This can not be

accepted for a moment, in the light of the explanation

given by PI Kanani. If for whatever reason, the matter

is looked at with more seriousness, then it can not be

called as unfair. If the fear of the Supreme Court of

India makes an Investigating Officer to give up a casual

approach and be serious about the prosecution, the

accused can not be said to have been prejudiced thereby.

On the contrary, that is how the approach of an

Investigating Officer should always be and a sense of

responsibility should always be present in his mind so as

to prevent him from acting in an indifferent manner.

Since the 'additional evidence' as given by PI Kanani is

found to be true, there is no substance in the contention

advanced by the learned Advocates for the accused.

857. Further, the very suggestion that because of the

fear of the Supreme Court of India, false evidence with

the intention of securing conviction has been given is

 621

absurd. The Supreme Court of India had not found the

accused guilty which is obvious from the fact that they

were not convicted by the Supreme Court of India. The

very fact that a retrial was ordered indicates that the

Supreme Court of India felt the necessity of adjudication

of the guilt or otherwise of the accused persons. The

Supreme Court of India's order could not be interpreted

as an order whereby the Supreme Court of India expected a

conviction to be returned. This is apart from the fact

that during the retrial several witnesses, by giving

false evidence recklessly, have indicated that atleast

they had not any fear of the law.

858. It is also contended that in view of the defective

and insincere investigation the version of the

prosecution has become doubtful and ought not to be

believed. The criticism of the investigation being

defective, as made by the Advocates for the accused, is

undoubtedly correct. PI Baria [P.W.72] did not carry out

the investigation properly and did not take even some

elementary and routine steps. Even the investigation

carried out by PI Kanani [P.W.74] can not be said to be

very proper, but the reason given by PI Kanani in that

regard is that the lack of co-operation from the persons

in the locality and this appears to be true. It appears

that he was unable to get sufficient information in spite

 622

of making efforts and he could arrest only a few of the

offenders. It is a fact that PI Kanani did not get the

identity of any of the accused confirmed from the

occurrence witnesses during the course of investigation.

Though this is not fatal, since all the accused were not

named in the F.I.R. or in the statements of occurrence

witnesses, it was desirable to get the identity of those

who were not named, confirmed from the occurrence

witnesses. The question however, is firstly whether this

defective investigation was deliberate and secondly,

whether it was for falsely implicating the accused. As

regards PI Baria, atleast a doubt arises that the

investigation was deliberately defective, but lacunae

therein were certainly not kept for implicating the

accused. The grievances of the Advocates for the accused

that the investigation was deliberately done in a

defective manner, so as to implicate the accused, has no

substance. The wild allegations of manipulation of the

F.I.R. etc. have no substance, as discussed earlier. The

easiest way of manipulating the record for implicating

the accused would have been to record false statements

of the occurrence witnesses. This has not been done. It

has been brought on record that no new names -i.e.- not

given in the F.I.R. [Ex.136] of any culprits or

additional information about them could be gathered by PI

Kanani from the statements of the occurrence witnesses

 623

recorded by PI Baria. The record of the statements under

section 161 of the code, is in all probability

manipulated. Certainly however no manipulation has been

done for implicating the accused. The possibly falsely

recorded statements merely repeat the already available

information, and thus the manipulation of false record

was not made for giving more and more names of the

culprits or for giving a more violent and active role to

those already named. No manipulations have been done

with regard to the articles sent for examination to the

Forensic Science Laboratory, for attempting to show the

connection of these articles with the offences in

question, which was certainly not that difficult. If PI

Baria and PI Kanani could go to the extent of making

false entries about the lodging of F.I.R., planting

human bones and recording imaginary statements of the

occurrence witnesses, why could they not record atleast

supplementary statements of the occurrence witnesses

showing that the identity of the accused persons was

confirmed during the investigation, is impossible to

understand. This leaves no manner of doubt that whether

deliberate or not, the lapses and lacunae in the

investigation certainly have not prejudiced the accused.

If the lapses or lacunae were deliberate, they were not

designed to implicate the accused. If these lapses have

resulted in the loss of valuable evidence, the accused

 624

naturally stand benefited by it. It is not even

suggested how proper investigation could have exonerated

the accused. As it is, the case stands on the evidence

of the identifying witnesses and no proper efforts to

collect any other evidence were made during the

investigation. This is not in dispute, but the claim is

that this was done to implicate the accused, which is

totally unacceptable.

859. In a number of authoritative pronouncements, the

Supreme Court of India has laid down that the defect, if

any, in the investigation can not automatically result

in the acquittal of the accused. What is required to be

considered is whether because of the defect, the accused

was prejudiced which may happen in several cases. For

instance, in a given case, if the accused claims that he

is not known to the witnesses and demands a test

identification parade which is not held and the witnesses

identify the accused before the Court during the trial,

the accused can very well complain of prejudice. The

accused can contend in such cases that, had test

identification parade been held, the falsity of the claim

of the witnesses would have been established. No such

thing has happened in this case. The steps which ought

to have been taken during investigation and were actually

not taken, would not have helped the accused in any way.
 625

How they would have helped the accused, is not even

attempted to be suggested. Efficient investigation might

have resulted in the arrest of many more culprits,

and/or would have furnished more material to establish

the involvement of the accused. The cases where the

culprits are one or two, efficient investigation can show

that somebody else other than the one named or originally

suspected - can also be equally or even more suspected;

and when such steps are not taken, prejudice can be

complained of. Failure to verify an alibi can also give

rise to a legitimate grievance of prejudice. In a case of

this type, efficient investigation can reveal the

involvement of some others but how it will help those

already implicated because of that, is difficult to

understand. There is absolutely nothing in this case, to

indicate that by defective investigation the accused have

been prejudiced.

Thus, my conclusions are as follows:

860. There is no substance in the contention that the

supporting occurrence witnesses have been tutored. There

is also no substance in the contention that due to fear

of the Supreme Court of India, the witnesses are deposing

falsely during the retrial in order to ensure that the

accused are convicted. On the contrary, a number of

 626

witnesses turned hostile during the retrial also and have

shown more antipathy to the prosecution case than was

shown by them earlier. The contentions about statements

under section 161 of the Code not being accurate or true

and being manipulated appears to be true, but the

evidence indicates that the manipulated version was not

more adverse to the accused or that the manipulation is

not indicative of a design to implicate the accused. The

contention that the investigation was not efficiently

done; and that it is defective, is also correct, but the

defective investigation, nevertheless, has not affected

the accused in any way. Because of the defects, the

evidence of occurrence witnesses, including the evidence

of identification of some of the accused by them, can not

be discarded. There is nothing improbable, unbelievable

or unreasonable in the identification evidence.

861. Thus, the general contentions about tutoring, about

interest of the N.G.O., about fear of the Supreme Court

of India, defective investigation, do not impress me and

do not make me doubt the reliability of the evidence of

the supporting occurrence witnesses regarding the

identity. Moreover, while appreciating the evidence

involving the accused, the entire circumstances

established by the evidence ought to be kept in mind. In

this case, there is circumstantial guarantee to support

 627

the theory of the persons from the locality being

involved in the incident. Smt. Rao, the learned Spl.P.P.

is right in saying that looking to the happenings, it is

not possible to believe that among the mob of rioters

local residents were not present and had not taken any

active part therein. In this context, the silence and

the attitude not to disclose anything of the witnesses in

the locality is significant. The accused who are

residents of the same or nearby locality have chosen to

express a total ignorance of the happenings including the

existence of the Best Bakery itself, which is obviously

false. They have denied not only the knowledge of the

incident, but also of one another, other witnesses from

locality, the locations etc. Thus, there exists no

explanation of the prosecution evidence. There is also

substance in the contention of the learned Spl. P.P. that

had the offenders or atleast a number of them not known

to the victims they would not have got down from the

terrace in the morning. The palpably false defence of

the accused certainly can not take place of proof, and

even if held as not a factor strengthening the

prosecution case, the resultant absence of any

explanation offered by them of the evidence against them

certainly does not weaken the prosecution version.

Discussion of sufficiency or otherwise of the evidence

 628

against each accused.

862. Having come to the conclusion that there is nothing

inherently wrong, weak or improper in the identification

evidence, the evidence against each accused may now be

examined to come to a conclusion about his involvement or

otherwise in the alleged offences.

863. In this case, it was not granted by the learned

Advocates for the accused that the prosecution had even a

shadow of a leg to stand upon and even trivial points

were argued with the same intensity as given to the vital

issues. Many contentions which were over emphasized, have

been found to be baseless. Trivial issues were blown out

of proportion. Inconsistent and varying stands have been

taken. Everything was emphasized as indicative of a

conspiracy to falsely implicate the accused, and

everything having been emphasized, nothing has really

been emphasized. The Court however, can not lose sight of

the real issues which require deeper examination. An

objective analysis of the evidence disregarding the

weaknesses and falsity of certain contentions raised by

the defence is absolutely essential. It is therefore

necessary to examine the evidence against each accused

separately and to see whether it is of such a degree so

as to unhesitatingly come to a conclusion of the

 629

involvement of that particular accused in the alleged

offences. It is rarely that the Court comes to the

conclusion of a witness being 'wholly reliable' so as to

unhesitatingly accept and believe everything that he

says. The question of reliability does not depend only

on the attitude of the witness, or his desire to tell the

truth, but also on the accuracy of his perception and his

memory.

864. It is settled legal principle that the charge of an

offence must be proved beyond reasonable doubt. The

degree of assurance that is required before a criminal

Court can convict an offender is much higher than a mere

preponderance of probabilities.

865. Appreciation of evidence in riot cases presents some

peculiar difficulties, primarily because of the large

number of victims and the large number of offenders. A

reference to some of the authoritative pronouncements of

the Apex Court dealing with this aspect of the matter

would prove useful and provide guidelines in the matter

of appreciation of evidence in such cases.

866. In Masalti and others V/s. State of Uttar Pradesh

AIR 1965 Supreme Court 202, the appellants before the

Supreme Court had been convicted by the trial Court,

 630

inter-alia, of offences punishable under section 302 of

the I.P.C. r/w. Section 149 of the I.P.C. and the High

Court had upheld the conviction. In dealing with the oral

evidence, the High Court had taken into account the fact

that the witnesses belonged to a particular faction and

therefore, must be regarded as partisan. The High Court

confirmed the conviction of only those accused persons

against whom 4 or more witnesses had given a consistent

account. Before the Supreme Court of India, it was

contended that the test applied by the High Court for

convicting the appellants was mechanical. The Supreme

Court of India has observed that while it was true that

the quality of the evidence is what matters and not the

number of witnesses who gave the evidence, still

sometimes, it is useful to adopt the test like the one

which the High Court had adopted. The Supreme Court of

India has observed as follows:

“......Where a criminal court has to deal with

evidence pertaining to the commission of an

offence involving a large number of offenders

and a large number of victims, it is usual to

adopt the test that the conviction could be

sustained only if it is supported by two or

three or more witnesses who give a consistent

account of the incident. In a sense, the test

may be described as mechanical; but it is

 631

difficult to see how it can be treated as

irrational or unreasonable”.

867. In Chandra Shekhar Bind and others V/s. State of

Bihar, AIR 2001 SUPREME COURT 4024, the decision of the

Supreme Court of India in Masalti's case was referred to

and it was held that that there is no rule of evidence

that no conviction can be based unless a certain minimum

number of witnesses have identified a particular accused

as a member of the unlawful assembly; and that though

even the testimony of one single witness, if wholly

reliable, is sufficient to establish the identification

of an accused as a member of an unlawful assembly, still

when the size of the unlawful assembly is quite large and

many persons would have witnessed the incident, it would

be a prudent exercise to insist on at least two reliable

witnesses to vouchsafe the identification of an accused

as a participant in the rioting. Thus, though there is

no rule of law, that the testimony of a single witness

would be insufficient to convict an accused on the basis

that he was a member of an unlawful assembly, still, as a

rule of prudence and not of law, the Court may, in

appropriate cases, insist on evidence of identification

by at least two witnesses. From the observations made by

the Supreme Court of India, it is clear that it would be

rather unsafe to rely on the testimony of a single

 632

witness in most of the riot cases, unless either the

witness is considered as 'wholly reliable', or unless his

evidence is corroborated by some other independent

evidence.

868. Keeping all these relevant aspects in mind, I now

proceed to discuss the evidence against each accused to

come to a conclusion as to whether the charge against him

is proved or not.

Accused no.1 - Raju Dhamirbhai Baria

869. Accused no.1 - Raju Dhamirbhai Baria - has been

identified by three witnesses - Shehzad [P.W.28], Yasmin

[P.W.29] and Sailun [P.W.32]. Shehzad [P.W.28] has

pointed him out in the Court and identified accused no.1

as one of the rioters. He has stated about he being from

the same 'mohalla'.

870. Shehzad has not given the name of accused no.1, nor

has he attributed any specific role to him. The role

attributed to him is the same which Shehzad has

attributed to all the seven accused identified by him,

without naming.

871. Sailun [P.W.32] has also pointed him out as 'a

 633

person who was present in the morning [among the

rioters]', without, however, attributing any specific

role to him.

872. Yasmin [P.W.29] has, however, identified him by

giving his name as Raju. He was pointed out by Yasmin in

Court. The role attributed to accused no.1 - Raju - by

Yasmin is that he was involved in the act of catching

hands of the men when they were being assaulted - i.e.

she has spoken about his involvement in the incident that

took place in the morning. Yasmin undoubtedly knows

accused no.1 well. She has stated that he is related to

accused no.16 - Shanabhai. According to Yasmin, accused

no.1 - Raju - used to visit Shanabhai's house. It is

satisfactorily proved that Shanabhai's house is just

behind Best Bakery. That he is related to accused no.16

- Shanabhai - and used to visit his house, is not

disputed. In his examination under Section 313 of the

Code, accused no.1 has admitted this.

873. There can be no doubt that the accused no.1 is a

resident of the same locality and known to Sailun

[P.W.32] and Shehzad [P.W.28] since previously. The

evidence of Yasmin, which cannot be doubted as regards

her knowledge of this accused since prior to the

incident, can be safely accepted as regards the

 634

involvement of this accused. Similarly, Shehzad's

[P.W.28] evidence about having seen accused no.1 in the

mob of rioters also cannot be doubted at all. The

evidence of these two witnesses can be safely accepted

even if Sailun's evidence is not taken into

consideration, as the evidence is supported by

circumstances which lend assurance to the theory of

accused no.1 being in the mob which committed the

offences in question. It is not possible to hold that

Yasmin and Shehzad are both falsely pointing out the

accused no.1 and implicating him falsely simply because

they know him. Once it is established and accepted that

accused no.1 is a resident of the same locality, well

known to Yasmin and known to Shehzad also, the only

question that remains is of the witnesses falsely

implicating him. The question of their making any

mistake in that regard does not arise. It is not

possible to hold that he is deliberately and falsely

implicated by Yasmin and Shehzad.

874. The evidence however reveals the involvement of this

accused only in the morning incident. The unlawful

assembly continued its activities for a very long period

ranging from about 8.30 p.m. to 9.00 p.m. in the night

till about 10.45 a.m. on the next day. Though it is

quite possible that the accused no.1 was the member of

 635

the unlawful assembly since night, in view of the fact

that even a single witness has not spoken about his

presence in the night, I think it safe to proceed only on

the basis that he was a member of the unlawful assembly

in the morning and hold him liable only for the offences

committed in the morning.

Accused no.2 - Mahendra @ Langado S/o Vishwasrao Jadhav

875. Coming to accused no.2 - Mahendra @ Langado S/o

Vishwasrao Jadhav -, he has been identified by Shehzad

[P.W.28] by pointing out. Shehzad has not been able to

identify him by his name. Shehzad has identified 5

accused persons by name and 7 more without being able to

give their names. Accused no.2 - Mahendra Jadhav - is one

of those 7. No specific role has been attributed to him

by Shehzad and what is stated is that all the 7 accused

identified by him, though without naming, were having

'danda' or swords with them and all were shouting

'musalmanoko mari nakho'. Sailun has also pointed him

out as one of the persons present in the mob of rioters.

Though Shehzad and Sailun, as already discussed, cannot

be considered as an untruthful witnesses or liars, the

fact remains that it is not safe to hold accused no.2

guilty only on the basis of such general allegations.

 636

876. The accused no.2 has been arrested on the basis that

he is Mahendra Langado. There has been some endeavour on

the part of the learned Advocates for the accused to show

that he is not actually 'Langado' - 'i.e. lame' - and as

discussed earlier, I do not find any substance in the

said contention. The fact however remains that except

identification by Shehzad and Sailun, by pointing out,

which is of a too general nature, as discussed above,

there is no other material against him to show his

involvement in the alleged offence. In my opinion, it

would be hazardous to base a conviction only on the

evidence of Shehzad and Sailun, as it is.

Accused no.3 - Harish @ Tino Virendragir Gosai

877. Coming to the accused no.3 - Harish @ Tino

Virendragir Gosai -, he has been identified by Yasmin

[P.W.29]. Yasmin has given his name and other details.

According to Yasmin, he is the brother of accused no.4 -

Pankaj Gosai - and stays in the lane in front of the Best

Bakery building. Yasmin has attributed a specific role

to him. It is that he, along with Rinku [absconding

accused] and Pankaj [accused no.4], were setting fire to

the wood inside the bakery. Thus, apparently, Yasmin had

noticed him only in the night. Except of Yasmin, there

is no other evidence of any nature against him. Though

 637

the fact that Yasmin indeed knows him cannot at all be

doubted, taking into consideration all the relevant

aspects of the matter, it would not be safe to base a

conviction on the solitary and uncorroborated testimony

of a single witness who cannot be called as 'wholly

reliable'. Moreover, whatever the witness might say,

there would be a clear distinction in the weight to be

given to the identification evidence relating to the

incident in the night and relating to the incident in the

morning. In the morning, the offenders had come face to

face in front of the witnesses providing a much better

opportunity to the witnesses to observe them.

It would be appropriate, in my opinion, that the

accused no.3 is given benefit of doubt and acquitted.

Accused no.4 - Pankaj Virendragir Gosai

878. Coming to accused no.4 - Pankaj Virendragir Gosai -,

he has been identified by Raees Khan [P.W.27], Shehzad

[P.W.28], [Link] [P.W.29] and Sailun [P.W.32].

Sailun [P.W.32] has pointed him out as the one being

present in the morning in the mob of rioters. Raees Khan

[P.W.27] has identified him, without naming him, as the

person who was there. Though Raees has not attributed

any specific role to the accused no.4, it is clear from

 638

his evidence that he has identified all concerned as the

persons who were involved in the morning incident.

Shehzad [P.W.28] has also identified accused no.4 by

pointing out towards him. The role attributed to him by

Shehzad is the same that he has attributed to the 7

accused identified by him without being able to name them

[out of the total 12 accused identified by him]; and that

the role is that they were either having 'danda' or sword

with them and were shouting 'musalmanoko mari nakho”.

Yasmin [P.W.29] has also identified accused no.4 by

pointing him out in the Court and by giving his name as

'Pankaj Gosai'. Yasmin has said that he, along with

others named by her, was setting fire to the wood inside

the bakery. In the cross-examination, Yasmin has stated

that she knew Pankaj [accused no.4] since the time of her

marriage; and that he stays in the lane in front of her

house. Yasmin has also stated that he is the brother of

Haresh Gosai [accused no.3] over which there is no

dispute and both these accused, in their examination

under Section 313 of the Code, have admitted their

relationship. Thus, the knowledge of Yasmin about this

accused cannot be doubted. That he is from the same

locality, is also clear. A specific role has been

attributed to him by Yasmin. In my opinion, the presence

of this accused in the mob of rioters is very

satisfactorily established. The evidence of Raees

 639

[P.W.27], which is convincing, indicates his presence

during the morning incident. It can be safely concluded,

in my opinion, that that accused no.4 was indeed present

among the mob of rioters and was a member of the unlawful

assembly when it committed various offences during the

period from the night of 01/03/2002 till the time the

police arrived in the morning of 02/03/2002.

Accused no.5 - Yogesh @ Painter Laxmansinh Varma

879. The case of accused no.5 - Yogesh @ Painter

Laxmansinh Varma -, is rather peculiar. He has not been

identified by any of the witnesses by pointing him out.

He is supposed to be 'Painter' and has been arrested on

that basis. One 'Painter' has been named in the F.I.R.

and as discussed earlier, in this case, certain

statements in the F.I.R. are admissible in evidence under

Section 6 of the Evidence Act. That among the mob of

rioters there was one 'Painter', is therefore substantive

evidence. Moreover, D.C.P. Piyush Patel [P.W.67] and PI

Baria [P.W.72] have also stated about the 3 women, or one

of them, giving names of certain offenders to them on the

spot itself and among those names, the name of 'Painter'

is disclosed. Thus, there is evidence to indicate that

one 'Painter' was playing a leading role in the mob.

 640

880. Yasmin [P.W.29] has not been able to identify

Painter though she has attributed various overt acts to

Painter. Of course, that she involves 'Painter' but

cannot identify him in Court, cannot be held against

Yasmin as it is quite possible that due to the time gap,

she is not able to recognize Painter now. In fact, in

all probability, she had identified him in Court, but was

not sure of the identification and therefore did not say

so. This is clear from the fact that while giving

evidence and after saying that she was not able to

identify Painter, she stated that 'at that time, he had

no beard'. Accused no.5 before the Court was having

beard at that time. However, [Link], the learned

Spl.P.P., did not require Yasmin to carry the matter

further and therefore, there is nothing to hold that the

'Painter' spoken about by the witness and mentioned in

the F.I.R., is the same 'Painter' - i.e. accused no.5.

Yasmin has even indicated that Painter was residing in

the line of their house in front of the shop of Sindhi,

which shows Yasmin's knowledge of this particular person

'Painter'. The denial on the part of the hostile

witnesses of their being aware of any 'Painter', is

obviously false but in spite of coming to such a

conclusion, there appears to be no substantive evidence

to indicate that the accused no.5 is the same person who

is referred to as the 'Painter', or that the accused no.5

 641

was among the mob of rioters. No evidence aliunde has

been adduced to show that the accused no.5 resides, or

was at the material time, residing, in front of Sindhi's

shop. Undoubtedly, PI Kanani has arrested the accused

no.5 on the basis that he is the one who is referred to

as 'Painter' and though PI Kanani clearly says so, the

source from which PI Kanani came to the conclusion, has

not been examined. In my opinion, though there exists a

strong suspicion against the accused no.5, it is not

possible to hold that his involvement in the offences is

established in the absence of anybody pointing out

towards him in the Court as a person who was present in

the mob of rioters. The accused no.5, therefore, should

be acquitted.

Accused no.10 - Pratapsinh Ravjibhai Solanki

881. Coming to accused no.10-Pratapsinh Ravjibhai Solanki

-,he has not been identified by anyone except [Link]

discussed earlier, the identification of the accused by

Sailun –except of accused no.11,accused no.15 and to a

certain extent accused no.20,-is not convincing. No

reference to the name ‘Pratap’has been made by any of

the witnesses. Nobody has stated that a person by name

Pratap was among the mob of rioters. The other evidence

against Pratap is of the recovery of one iron pipe

 642

[Art.R/22] pursuant to the information given by him while

he was in police custody. The iron pipe however could

not be connected with the alleged offences. No stains of

blood or any other incriminating materials, indicating

the connection of the said iron pipe, with the alleged

offences were found thereon in spite of examination of

the same by the Chemical Analyzer. The pipe has been

recovered from the residence of accused no.10 -

Pratapsinh Solanki - on 04/04/2002 under panchanama

[Ex.90]. The panch witness Kamlesh Darji [P.W.24] has

neither identified accused no.10 as the accused at whose

instance the pipe was recovered, nor was he able to state

what was the weapon that was recovered from his house.

It is only after the pipe [Art.R/22] was shown, that he

said that he remembered that it was the same weapon.

Though there exists evidence of PI Kanani [P.W.74] to

indicate who was the accused who was concerned with the

recovery of the said iron pipe, since the weapon is not

shown to have been connected with the alleged offences in

any manner, the accused no.10 cannot be connected with

the offences in [Link] identification of this

accused by Sailun alone, without naming and attributing a

specific role to him and the recovery of iron pipe

[Art.R/22] at his instance and under a panchanama, even

if held to be satisfactorily proved, is not sufficient to

hold that he was among the mob of rioters; and that he

 643

was a member of the unlawful assembly which committed the

offences in question.

Accused no.11 - Sanjay @ Bhopo Ratilal Thakkar

882. As regards accused no.11 - Sanjay @ Bhopo Ratilal

Thakkar -, the evidence against him is overwhelming. The

accused no.11 has been identified by Taufel [P.W.26],

Shehzad [P.W.28], [Link] [P.W.29] and Sailun

[P.W.32]. All these witnesses have attributed specific

roles to him.

883. Taufel [P.W.26] has identified him, without naming

him, saying that he was the person who was making the

victims get down from the terrace in the morning; and

that he had, after the victims got down, tied their hands

and legs.

884. Shehzad [P.W.28] has identified him by name as

'Sanju'. Shehzad has also stated that Sanju had tied his

hands. According to Shehzad, accused no.11 took away the

amount of Rs.5,000/- [Rupees five thousand only] which

was with him. Shehzad has stated that he knew Sanju

since prior to the incident and gave the reason for

knowing him as, 'because he is a big man' and stays

opposite Shraddha Bakery. The evidence of identification

 644

of this accused by Shehzad is very natural and

convincing.

885. Yasmin [P.W.29] has also identified accused no.11 by

pointed him out and giving his name as 'Sanjay Thakkar'.

According to Yasmin, she knew accused no.11 since the

time of her marriage. She has stated that she and her

husband used to pass through the road and her husband

used to waive hand to him. Thus, he is quite well known

to Yasmin since prior to the incident. Yasmin has stated

that she had seen Sanjay Thakkar in the night also; and

that he was, along with Jayanti Chaiwala and Painter,

leading the mob and telling them to set fire by pointing

out the locations.

886. Sailun [P.W.32] also has clearly identified Sanjay.

As discussed earlier, Sailun's evidence as regards Sanju

accused no.11] and Dinesh [accused no.15] and to a

certain extent Suresh Vasava @ Lalo [accused no.20], is

on a different footing than his evidence in respect of

other accused. Sailun was very categorical about the

role played by Sanju and Dinesh. From out of many

accused, Sailun, in spite of his mental faculties being

below average, identified accused no.11 - Sanju - and

accused no.15 - Dinesh - by their names. He has

attributed the role of assaulting by sword to both of

 645

them and has stated that Sanju had taken the money of his

brother. I do not think that there is any reason to

doubt the evidence of Sailun so far as it relates to

accused no.11 - Sanju - and accused no.15 - Dinesh. The

acts of these two accused, as committed by them during

the incident, appear to have left a lasting impression in

the mind of Sailun.

887. The evidence of these witnesses leaves no manner of

doubt that the accused no.11 was actively involved in the

alleged offences; and that he was leading the mob in the

night; and that he did play an active role in the

morning incident also. Moreover, there is other material

also against him.

888. Zahira [P.W.41] and others had given the name of one

'Thakkar' among the names of some of the offenders to

D.C.P. Piyush Patel [P.W.67] and PI Baria [P.W.72]. The

contention that was advanced in this regard was that the

name was not of 'Sanjay Thakkar', but of 'Social Worker

Thakkar', who was already dead. All that can be said,

is, that in the facts and circumstances, there can be no

doubt that 'Thakkar' referred to by Zahira and others in

their statements immediately made to D.C.P. Patel and PI

Baria on the spot itself, whose mention has been made in

the F.I.R. also, is none else, but the accused no.11

 646

only.

889. There is also evidence that accused no.11 was

absconding. It is in evidence that his house was

searched by PI Kanani [P.W.74] on 12/03/2002. At least,

at that point of time, it ought to have been clear to the

accused no.11 that he was wanted by the police. There is

no reason to doubt the evidence that the house search was

taken in the presence of the brother of accused no.11.

In spite of this, the accused no.11 was not available to

the police till 01/04/2002, on which date, he came, along

with six others, and surrendered himself before the

D.C.B. Police Station. Thus, that he was absconding, is

also a circumstance against the accused no.11 and adds to

the weight of evidence against him.

890. Moreover, 2 weapons - viz. an iron rod [Art.R/17]

and sword [Art.R/18] - were recovered under a panchanama,

pursuant to the disclosure statement made by accused

no.11 on 04/04/2002. The panch Devendra Thakor [P.W.22]

has stated about the accused stating in his presence that

he would show the concealed weapons, the police writing

it down and then the police party and panchas going to

Ansuya Nagar. He then speaks of the accused taking out a

sword and iron rod from the bushes on an open spot. He

has identified 'salli' [Art/R/17] as the same that was

 647

recovered on that day, though has expressed his inability

to identify the sword. Interestingly, he has identified

his signature on the paper slip which was covering the

handle of the sword. Though he has not been able to

identify the accused, in view of PI Kanani's evidence,

this is hardly of any consequence. PI Kanani's evidence,

read with the evidence of Devendra Thakor [P.W.22],

leaves no manner of doubt that it was the accused no.11

only at whose instance the recovery of an iron rod and

sword was witnessed by P.W.22. The evidence of the

alleged recovery at the instance of the accused no.11 is

sought to be challenged, but the evidence cannot be

discarded as false. Though, the weapons have not been

connected with the alleged offences in any manner, the

very conduct of the accused in pointing out the weapons

would be a corroborative piece of evidence, in the facts

and circumstances. In any case, the evidence of

identification against accused no.11 is indeed

overwhelming, reliable and clinching. The accused no.11

is clearly proved to be the member of the unlawful

assembly in the night, as well as in the morning, having

performed overt acts and having played a leading role in

the mob.

Accused no.12 - Bahadursinh @ Jitu Chandrasinh Chauhan

 648

891. So far as accused no.12 - Bahadursinh @ Jitu

Chandrasinh Chauhan - is concerned, he has been

identified by Taufel [P.W.26], Shehzad [P.W.28],

[Link] [P.W.29] and Sailun [P.W.32].

892. Taufel [P.W.26] has not identified him by giving

name, but has identified him by pointing out to him as

the person who was present in the night among the mob of

rioters. According to Taufel [P.W.26], he had seen

accused no.11 coming running towards the bakery by

holding a 'mashal' and sword in his hand. It may be

recalled that later on, Taufel has claimed that he knew

the names of 4 of the accused identified by him and the

names given by him were Dinesh, Shana, Ravi and Jitu.

This accused is identified by other witnesses as Jitu.

Taufel, however, was not made to identify the 4 accused

who he stated, were known to him by name even after the

disclosure, that he knew 4 accused by names, was made.

Thus, even if the identification is treated as

identification without giving name, it is stil

convincing.

893. Shehzad [P.W.28] has also identified the accused

no.12 by pointing out towards him and saying that he is

Jitu. He knew accused no.12 - Jitu - since prior to the

riots. According to Shehzad [P.W.28], accused no.12 was

 649

present in the riots having sword with him; and that he

was present in the night and in the morning also. The

fact of prior acquaintance of the accused no.12, and that

too as Jitu, as deposed by Shehzad, is not at all shaken

in the cross-examination of Shehzad. Consequently, this

evidence of Shehzad can safely be accepted against the

accused no.12.

894. Yasmin [P.W.29] has also spoken about Jitu and the

role played by Jitu, though she was not able to identify

the accused no.12 as Jitu. This cannot be held against

Yasmin, in as much as, her explanation with regard to not

being able to identify some of the rioters to the effect

that the appearance of some of them had changed, is

acceptable. It is a fact that by the passage of time,

appearance of persons changes and it is possible that due

to the time gap, a witness might not be able to identify

a particular accused, though known to him previously and

about whose involvement he speaks.

895. Sailun [P.W.32] has also spoken about Jitu being one

of the rioters. He has attributed certain roles to Jitu

also. However, though he pointed out Jitu in the Court

as one of the persons present in the mob of rioters in

the morning, he could not point him out specifically as

‘Jitu’. It is therefore rather unsafe to rely on the

 650

evidence of Sailun, but even if his evidence is

ignored,there is sufficient evidence against the accused

no.12. That he is Jitu and known as such, cannot at all

be doubted. Much cross-examination of PI Kanani [P.W.74]

has been done on the aspect of identity of accused no.12

as Jitu. However, that cross-examination has not yielded

anything favourable to the defence. The question is not

whether Jitu is a full name or a pet name, but the

question is whether the person is, in fact, known or

identified as such. The evidence of PI Kanani

undoubtedly shows that the accused no.12 came to be

arrested on the basis that he is Jitu and no challenge to

that aspect was given by the accused no.12 at any time

till he was specifically questioned in the examination

under Section 313 of the Code about he being known as

Jitu. The name of accused no.12 is Bahadursinh

Chandrasinh Chauhan and had he not been known as Jitu, he

would have certainly protested against such arrest which

was made on that basis [Link], there could be no doubt

that the accused no.12 is also known as Jitu. In any

case, as discussed earlier, the real question will be of

the identification made by the witnesses by pointing out

towards him and that has been properly done in this case.

Even so, the fact that he is known as Jitu, is also

satisfactorily established.
 651

896. Against him, there is also other evidence in the

nature of his name being mentioned by Zahira and others

to D.C.P. Piyush Patel [P.W.67] and PI Baria [P.W.72] on

the spot itself. The 'Jitu' referred to by them, under

the circumstances, could be no one else and obviously the

reference is to the accused no.12 only. There is no

material to show that there exists any other Jitu in the

locality of Hanuman Tekdi. Moreover, while searching for

the 'Jitu' as referred to by Zahira and others, PI Kanani

made his search at Pandit Chawli, Gajrawadi, which was

the previous residence of the accused no.12. That it was

his old residence, has been accepted as true by the

accused no.12 in his examination under Section 313 of the

Code. The statements made by Zahira and others to D.C.P.

Patel and PI Baria on the spot are substantive evidence

under Section 6 of the Evidence Act. Further, in the

F.I.R. also, the name of one Jitu is mentioned as one of

the rioters and in the facts and circumstances, it is

clear that it refers to accused no.12 Jitu only. This

statement in the F.I.R. is also admissible as the

substantive evidence under Section 6 of the Evidence Act.

These statements, by themselves, would not establish the

identity of the accused no.12 as the same Jitu, but

certainly they serve as corroboration to the other

evidence against him. What is more remarkable is that

during cross-examination, apparently, a chance was taken

 652

by Shri Adhik Shirodkar, the learned Senior Advocate, and

the attention of Shehzad [P.W.28] was specifically drawn

to accused no.12 and Shehzad was asked as to what was the

name of that accused. Shehzad however again identified

accused no.12 as Jitu and also said that he knew him as

Jitu since prior to the riots. This confirmed the

identity of accused no.12 as Jitu further. Further,

Yasmin [P.W.29], though was unable to identify him as

Jitu, her evidence as to the involvement of one Jitu,

certainly can be taken into account against this accused,

once it is established that he is Jitu.

897. Apart therefrom, there is evidence of recovery of a

'gupti' [Art.R/19] at the instance of this accused and

pursuant to a disclosure statement made by him and

recorded under a panchanama [Ex.83]. However, as the

said 'gupti' has not been shown to be connected with the

alleged offences in any manner,even if much importance is

not given to this aspect,the evidence of identification

of this accused is, nevertheless sufficient,satisfactory

and can be safely accepted. There can be no doubt

that this accused was a member of the unlawful

assembly, both in the night as well as in the morning,

and had played active role during the incident.

Accused no.13 - Yasin Alibhai Khokhar

 653

898. As regards accused no.13 - Yasin Alibhai Khokhar -,

he has been identified by Yasmin [P.W.29] by giving his

name and other details. He is also identified by Sailun

[P.W.32], without, of course, giving his name and simply

by pointing out towards him as the person who was present

among the mob of rioters in the morning. Yasmin has not

given any role to Yasin. Yasmin states that she knows

him since the time of her marriage, that he is a Muslim

and was staying in front of the Best Bakery building.

Yasmin also knows that he has married to a Hindu lady.

Yasmin however does not attribute any role whatever to

him. As discussed earlier, Sailun's evidence with

respect to the accused other than Sanju, Dinesh and to a

certain extent, Suresh Vasava @ Lalo, is not safe to be

acted upon without corroboration.

899. It is seen that the role attributed to Yasin as per

the prosecution case is that the goods that were looted

from the bakery premises, were put in his truck by the

rioters and were taken away. There has been no evidence

showing that it had indeed happened. Yasin is a Muslim

and the motive that was available to the other accused,

was certainly not available to him. He himself being a

Muslim, it is difficult to accept that he was a member of

an unlawful assembly, the common object of which was to

assault, to attack and to kill Muslims and to damage and

 654

destroy their properties. He stays in the same area and

assuming that he was indeed present during the riots, it

would not make him a member of the unlawful assembly

unless some evidence to indicate that – in the nature of

an overt act or otherwise – exists. There is no such

evidence in this case. On the contrary, even if it is

assumed that the goods robbed from the bakery were kept

in his truck and taken elsewhere, still, it is difficult

to hold that he shared the common object of the unlawful

assembly. Considering the situation then existing, as

can be gathered from the evidence, it is obvious that

among the huge mob of Hindu persons, accused no.13 hardly

had any choice to say 'No' to what the mob desired him to

do. In the peculiar facts and circumstances; and that no

overt act has been attributed to Yasin, it is not

possible that he, even if present in the unlawful

assembly, was a member thereof.

Accused no.14 - Jagdish Chunilal Rajput

900. As regards accused no.14 - Jagdish Chunilal Rajput -

, he has been pointed out by Shehzad [P.W.28] as one of

the persons present in the mob of rioters, without being

able to name him. He has been pointed out by Sailun

also, as a person present in the mob of rioters, in the

morning, without naming him. He has been identified by

 655

giving his name by Yasmin [P.W.29]. According to Yasmin,

she knew accused no.14 - Jagdish - since the time of

death of her father-in-law. According to her, at that

time, the family wanted to remove the cable T.V.

connection; and that at that time, Jagdish had come to

their house. Yasmin has attributed a specific role to

Jagdish saying that he was threatening to rape the women.

Yasmin has said that Jagdish and Jitu [accused no.12],

together with Mafat and Munno [both absconding accused],

were saying that they would rape the women one by one.

That Yasmin knows Jagdish cannot be doubted as she has

been able to identify him properly out of so many

accused. She has also given a reason for knowing him.

There is no reason to doubt therefore that Yasmin knew

Jagdish since prior to the incident. This evidence of

Yasmin is very severely challenged on the ground that she

has not named accused Jagdish in her statement recorded

during investigation. According to Yasmin, she did name

him before the police, though the name is not found in

the record thereof made by Baria. As observed earlier,

non-mentioning of the names of the accused is not fatal

in this case; and that the police record itself is of a

doubtful value. It is true that even D.C.P. Patel and PI

Baria had not mentioned about the women having complained

about the threats of rape. However, as already discussed

in the context of Yasmin's evidence, I do not doubt the

 656

version of Yasmin as regards the threats of rape. It has

been discussed earlier that the evidence indicates that,

that the women were being dragged towards the

bushes/'jungle' by the mob of rioters. What is

significant is that [Link] [P.W.63], in his evidence,

has stated that when he reached the spot, 3 women came

from the bushes towards him and narrated the incident.

Once the fact that the women came from the 'bushes' is

established, the question is when the men were lying

injured, why and how the women went towards the

bushes/'jungle'. What was the occasion for them to go

there leaving the men in an injured condition, requires

an answer, which could be supplied only by theory of the

women having been dragged towards the bushes/'jungle'.

Once it is held that the incident of women being dragged

towards the bushes/'jungle' had indeed happened, there

seems to be no reason to disbelieve Yasmin on the aspect

of some of the rioters having threatened the women of

raping them. The failure to mention it to the police, or

rather its absence in Yasmin's statement recorded by the

police, is not of much consequence in my opinion. No

rape had actually been committed. A ghastly incident

shattering their entire personality had taken place.

Their near and dear ones were under the shadow of death.

Under those circumstances, if the women would not

specifically mention regarding the threat of rape, there

 657

is nothing surprising or unbelievable. Once it is

accepted that Yasmin indeed knows Jagdish, there seems to

be hardly any reason to believe that she would make this

type of false allegation against Jagdish. There would be

no specific reason for her to implicate Jagdish in this

manner. The presence of Jagdish in the mob; and that he

played an active role an a member of the unlawful

assembly, can be safely inferred from this evidence.

901. However, the evidence shows his presence as a member

in the unlawful assembly only in the morning. Though it

is possible that he was a member of the unlawful assembly

right since the night, the evidence in that regard is not

so convincing. I therefore think it fit to grant the

benefit of reasonable doubt which appears about his

presence and membership of the unlawful assembly in the

night and do not hold him guilty in respect of the

offences committed in the night.

Accused no.15 - Dinesh Phulchand Rajbhar

902. Coming to accused no.15 - Dinesh Phulchand Rajbhar -

, he has been identified by all the supporting witnesses

- i.e. Taufel [P.W.26], Raees [P.W.27], Shehzad [P.W.28],

[Link] [P.W.29] and Sailun [P.W.32].

903. Taufel [P.W.26] has pointed him out without naming

 658

him. According to Taufel, accused no.15 was holding a

sword and 'mashal' and was shouting and giving slogans.

904. Raees [P.W.27] has also identified accused no.15 by

pointing out towards him. He has also mentioned about a

sword being with him and has stated that he was

assaulting.

905. Shehzad [P.W.28] has also identified him by pointing

him out and by giving his name also. Shehzad has

categorically stated that accused no.15 assaulted him by

a sword. That Shehzad knows Dinesh well, cannot be

doubted at all. Shehzad has stated that Dinesh's father

owns a bakery and known to Shehzad. Shehzad has stated

that the new name of the bakery of Dinesh's father is

Mamata Bakery.

906. Yasmin [P.W.29] has also identified Dinesh by

pointing out towards him and by giving his name. Yasmin

knows Dinesh since the time of her marriage. She also

knows his full name as Dinesh Rajbhar. According to her,

since Dinesh also has his bakery, he used to come to the

Best Bakery in connection with the bakery business.

907. Sailun [P.W.32] has also identified Dinesh by

giving his name. Sailun has also stated that he knew

 659

Dinesh since prior to the riots; and that Dinesh used to

be at Mamata Bakery. The role attributed to Dinesh by

Sailun is that he was assaulting by sword after the hands

of the victims were tied. The evidence of these

witnesses has not been shaken at all in the cross-

examination. Thus, all these witnesses have identified

Dinesh and have attributed him an active and similar

role.

908. It is contended by Shri [Link], the learned

Advocate for accused no.15, that Dinesh has been falsely

implicated. Shri Bichu has pointed out that he was not

named, not only by these supporting witnesses, but also

by the 4 of the 5 hostile witnesses in their statements

recorded during investigation. It is contended that the

information of his involvement was revealed about a month

after the incident. These submissions of Shri Bichu

require serious consideration.

909. That the supporting witnesses had not named him, is

not important in my opinion. Undoubtedly, the 'omission'

to name a known person in the statement recorded during

the investigation, would be an omission on a material and

significant point due to which the testimony of the

witness in the Court can very well be doubted. However,

in this case, this is a general feature of the statements

 660

of these 5 supporting witnesses. The effect of the

omissions has already been discussed at length and

considering the condition of the victims, not much

importance to non mentioning of the names can be given.

Moreover, it has already been elaborately discussed that

the entire police record of the statement is suspect in

this case and the unreliability thereof, which has been

emphatically put forth by the learned Advocates for the

accused only, is established. Yasmin, though not

injured, was also in such a state of mind that the

omission on her part is also not significant even if PI

Baria is to be believed that Yasmin did not name 'Dinesh'

[accused no.15]. However, in the absence of his name in

the record of the statements under Section 161 of the

Code till a late stage, the evidence against him

certainly requires to be carefully considered.

910. After a careful consideration of all the relevant

aspects of the matter, I am not able to hold that the

evidence given by these witnesses against Dinesh, which

is consistent and unshaken in the cross-examination,

should be doubted only because the name of Dinesh is not

found in the record of the statements of these witnesses

made by them before the police. Sailun [P.W.32] and

Shehzad [P.W.28] have stated that they did not give the

names of anyone to the police and considering the

 661

condition in which they were at the material time, not

much importance to that can be given. Raees [P.W.27] did

not know the name at all and his failure to mention the

name Dinesh to the police is of no consequence. Taufel

[P.W.26] later on claimed that he knew Dinesh by name,

but had not given his name in the examination-in-chief

due to fear. That fear can have such an effect, has been

discussed earlier. When he was afraid of giving his name

in the Court, it would be too much to expect that he

would necessarily give the name of Dinesh to the police

when his statement was recorded, had he seen Dinesh. At

any rate, considering the entire facts, coupled with the

absolute unreliability of the police record in that

regard, not much turns on failure to find the name of

Dinesh in the statement under Section 161 of the Code.

It is significant that all have identified him and

Shehzad [P.W.28], Sailun [P.W.32] and Yasmin [P.W.29]

undoubtedly, knew him by name. Though the case arose out

of communal violence and though there is substance in the

contention of Shri Bichu that in order to implicate

anyone falsely, the witnesses need not have enmity with

such accused, but there may be general tendency to

implicate falsely to settle the score, the manner in

which the evidence has been given against accused no.15

and considering the entire evidence of the supporting eye

witnesses, I do not think that Dinesh has been falsely

 662

implicated. In spite of clear, unambiguous and consistent

version of the witnesses, if the evidence against Dinesh

is to be discarded only on the ground that it is a case

of communal violence, which might provide a motive for

false implication, and on the ground that the police

record does not show that the witnesses disclosed the

name of Dinesh as culprit in their statements made to the

police, it would create supremacy of police record - so

to say - over the evidence before the Court. It is as if

a pre-trial statement would be decisive and conclusive

rather than the evidence before the Court; and that too

when the accuracy of the pre-trial statement by the pre-

trial record is clearly and certainly doubtful. The

effect of omission to name a culprit before the police

will vary from case to case and for appreciating the real

significance of that, the entire evidence in the case and

of the relevant circumstances should be taken into

consideration. The manner in which the evidence has been

given, the stand of the accused, are all relevant factors

which aid the assessment of the evidence. Once it is

held that Dinesh was certainly known to the identifying

witnesses since prior to the incident, the only

possibility which remains is of they all falsely

identifying and implicating him as one of the culprits.

Judging by the evidence of the witnesses, it is not

possible for me to accept that the witnesses have done

 663

so.

911. As such, the evidence of these witnesses can be

safely accepted to hold that Dinesh was very much present

in the mob of rioters and has taken an active part in the

incident. The evidence of Lal Mohammad [P.W.36], even if

accepted, does not rule out the possibility of Dinesh

having been present in the mob of rioters. At the most,

it would show that at a particular point of time, Dinesh

was not present in the unlawful assembly. The evidence

indicates presence of Dinesh in the mob of rioters in the

night, as well as in the morning.

912. After carefully considering the evidence against the

Accused no.15 – Dinesh Rajbhar, I am of the opinion that

his presence in the unlawful assembly, as a member

thereof in the night, as well as in the morning is

satisfactorily established. As such he is guilty in

respect of offences that took place in the night as well

as in the morning. The evidence shows that he was armed

with a deadly weapon and is guilty of rioting being armed

with a deadly weapon. That the weapon is not actually

recovered from him, is immaterial in the circumstances

and considering his delayed arrest. No charge in respect

of offence punishable under Sections 144 and 148 of the

I.P.C. was framed against him. However, the accused had

 664

proper notice of the evidence with respect to the facts

constituting the said offences. He has had the

opportunity to cross-examine material witnesses. No

prejudice would be caused to him by convicting him in

respect of offences punishable under Sections 144 and 148

of the I.P.C. also without there being any specific

charge for those offences.

Accused No.16 -Shanabhai Chimanbhai Baria

913. As regards Accused No.16 - Shanabhai Chimanbhai

Baria, he has been identified by all the supporting

witnesses viz:- Taufel [P.W.26], Raees [P.W.27], Shehzad

[P.W.28], Yasmin [P.W.29] and Sailun [P.W.32]. Taufel

has identified him by pointing out towards him and has

attributed to him the role of making the victims get down

from the terrace, tying their hands and legs and

thereafter assaulting them. Later on, Taufel [P.W.26]

mentioned that he knew the names of 4 of the 7 accused

identified by him in the Court and one of the 4 names

which he gave, is 'Shana. However, the Special Public

Prosecutor did not require the witness to point out as to

who were the persons named by him from amongst the

accused before the Court. I have discussed the effect of

this. The identification of this accused by Taufel

[P.W.26], can not be weakened by that reason. Though the

identification may be treated as not made by giving name,

 665

still the reliability of the identification can not be

doubted in as much as, that Shana resides just behind the

Best Bakery; and that the claim of the witnesses

including that of Taufel [P.W.26] that they knew him

since prior to the incident, can not be doubted, at all.

Raees [P.W.27] has also identified Shana and has stated

that he was having a sword in his hand. Shehzad [P.W.28]

has identified this accused by pointing out and by giving

his name as 'Shana'. Shehzad[P.W.28] also states that

Shana was having a sword with him at the time of the

riots. Shehzad [P.W.28] states that the house of Shana

is just by the side of the Best Bakery. Yasmin [P.W.29]

has also implicated Shana by pointing out towards him

and by giving his name. According to Yasmin, she knew

Shana since the time of her marriage; and that he stays

behind their house. Yasmin states that, she and others

used to see him every day. This is quite natural and

ought to be believed. Yasmin has given some further

information about Shana which is to the effect that he is

related to Accused No.1 -Rajubhai Baria- and this

relationship is not in dispute, at all. Sailun [P.W.32]

has also identified Accused No.16 -Shana- as the persons

present in the morning among the mob of rioters. Even if

the evidence of Sailun [P.W.32] is excluded from

consideration, keeping in mind my observations about his

evidence so far as it relates to the accused other than

 666

accused no.11, accused no.15 and accused no.20, still,

there is clear and satisfactory evidence against Shana.

That information about Shana's involvement was available

to the investigating agency by 13/03/2002; and that he is

wanted in this case, was circulated to all the Police

Stations in Vadodara City as is clear from the evidence

of PI Kanani [P.W.74] corroborated by the document

[Ex.396], is a circumstance which lends support to the

evidence against him. PI Kanani[P.W.74] has stated that

Shana was not available at his residence. He was

arrested on 15/04/2002 when he surrendered himself coming

to the Police Station. There is sufficient evidence to

indicate that he was absconding. Though absconding by

itself would not be a strong circumstance against the

accused, it certainly adds strength to the evidence of

his identification which itself is clear, satisfactory

and can be safely accepted. There can, therefore, be no

doubt about the involvement of Shana in the alleged

offences.

914. However, the evidence of his being a member of the

unlawful assembly in the night also, is not very clear.

In the facts and circumstances, I proceed on the basis

that his presence in the unlawful assembly, as a member

thereof in the night, is not satisfactorily established

and do not hold him guilty in respect of offences that

 667

took place in the night. The evidence shows that he was

armed with a deadly weapon and is guilty of rioting being

armed with a deadly weapon. That the weapon is not

actually recovered from him, is immaterial in the

circumstances and considering his delayed arrest due to

the fact that he was absconding. No charge in respect of

offence punishable under Sections 144 and 148 of the

I.P.C. was framed against him. However, the accused had

proper notice of the evidence with respect to the facts

constituting the said offences. He has had the

opportunity to cross-examine material witnesses. No

prejudice would be caused to him by convicting him in

respect of offences punishable under Sections 144 and 148

of the I.P.C. also without there being any specific

charge for those offences.

Accused No.17 -Shailesh Anupbhai Tadvi

915. As regards Accused No.17 -Shailesh Anupbhai Tadvi-

he has not been identified by any of the occurrence

witnesses. There is also no other evidence against him.

There is therefore, no evidence to show his involvement

in the alleged offence.

Accused No.18 -Shailesh Anupbhai Tadvi

916. As regards the accused No.18 -Shailesh Tadvi- he is

 668

identified by Raees Khan [P.W.27], Shehzad [P.W.28],

Yasmin [P.W.29] and Sailun [P.W.32]. Raees [P.W.27] has

identified him by pointing out towards him and has

attributed to him the role of having tied hands and legs

of the victims in the morning. Shehzad has identified him

without being able to name him, but by pointing out

towards him. The role which Shehzad attributes to him is

that he was armed with weapon – 'danda' or sword and was

shouting 'musalmanoko mari nakho'. Yasmin has identified

this accused by giving his name as Shailesh. According

to Yasmin, he was catching the hands of the men when they

were assaulted during the incident that took place in the

morning. Yasmin has stated that she knows Shailesh since

the time of her marriage; and that he used to come to the

house of one Bhatt which was in front of the Best Bakery

building. In his examination under section 313 of the

Code, Shailesh had denied this aspect and has claimed

that police had told Yasmin his name and had pointed him

out to her; and that, that is why she identified him in

the Court. This can not be accepted. Even if the

evidence of Sailun is not taken into consideration

against this accused, the evidence of his identification

can safely be accepted.

917. As such, the involvement of this accused in the

alleged offence is satisfactorily established, in my

 669

opinion.

918. There is no specific evidence against him showing

that he was a member of the unlawful assembly in the

night also. I therefore, think it fit to give him benefit

of doubt in that regard and hold him guilty only on the

basis that he was a member of the unlawful assembly in

the morning.

Accused No.19 -Kamlesh Bhikhabhai Tadvi.

919. The accused No.19 - Kamlesh Tadvi - has been

identified by Taufel [P.W.26], Shehzad [P.W.28] and

Sailun [P.W.32]. Taufel [P.W.26] has identified him

without giving his name as the person who was seen by

Taufel in the morning. The role attributed to him is

that he was standing near the bakery. Shehzad has also

identified him without naming him. It may be recalled

that Shehzad has identified 5 accused by giving their

names and 7 others without naming them. This accused is

one of those 7. The identification by Shehzad without

naming this accused gives a general role to him.

Shehzad's evidence with respect to those 7 accused is

definitely on a different footing than that against the 5

who are named and identified by him. Similarly, Sailun

[P.W.32] also has simply identified this accused –

 670

without attributing any specific role to him – as a

person who was present in the mob of rioters in the

morning. Apart from the evidence of identification,

there is circumstantial evidence against the accused in

the nature of recovery of a stick, pursuant to the

disclosure statement made by this accused while he was in

police custody. According to PI Kanani [P.W.74], after

the arrest of the accused on 17/04/2002, he was

interrogated; and that during the course of his

interrogation on 19/04/2002, the accused offerred to

disclose certain information, pursuant to which the

police party and the panchas went to a plot of land, as

led by the accused, at Hanuman Tekdi; and that, from the

passage between construction work and the fencing of

'babool' trees, the accused took out a stick [Article

R/26] and produced the same. The information disclosed by

the accused was recorded under a panchnama [X-148] and

the said stick was seized under a panchnama. However,

no panch witness has been examined and the evidence in

support of this recovery is only of PI Kanani. Without

going into the question as to whether this evidence of

recovery of the stick [Article R/26] at the instance of

the accused can be relied upon or not in the absence of

the examination of panch witness, it may be observed,

that the stick has not been shown to be connected with

the alleged offence, in any manner. No stains of blood

 671

or any other incriminating evidence was found on the

examination of the stick by naked eyes as done by PI

Kanani on the spot and/or by its examination in the

Forensic Science Laboratory. Admittedly, this accused

was in custody since 21/03/2002, in some other case in

respect of offenes under section 435 and 188 of the IPC.

An application was made by PI Kanani on 17/04/2002 to

the Judicial Magistrate, 1st Class, for handing over the

custody of the accused, pursuant to which the accused was

handed over to PI Kanani and came to be arrested, in this

case, on the very day i.e. on 17/04/2002. Apparently,

the information regarding the involvement of this accused

was not known to the investigating agency at early stages

of the investigation. Considering the totality of the

circumstances and the too general role attributed to him

by the identifying witnesses, the involvement of this

accused in the alleged offences can, reasonably be

doubted. He undoubtedly belongs to the same locality

and admits it to be so.

920. The degree of satisfaction that would be required

for holding him guilty of the offences in question cannot

be arrived at, from the evidence against him.

Accused No. 20 -Suresh @ Lalo Devjibhai Vasava.

 672

921. He has been identified by Taufel [P.W.26], Raees

[P.W.27], Shehzad [P.W.28] and Sailun [P.W.32].

According to Taufel, this accused was seen by him in the

night; and that he was coming running towards the bakery

holding 'mashal' and sword. Raees [P.W.27] has also

stated about having seen this accused with a sword in his

hand. Shehzad [P.W.28] has actually not given the name of

this accused, before this Court. He has however, stated

that he knew his name though he did not remember it, when

he gave evidence before the Court. That Shehzad knows

his name should be believed, in my opinion. Shehzad's

evidence indicates that this accused was having a sword

with him at the time of riots. Sailun [P.W.32] has

pointed out to this accused and has given his name as

'Lala'. According to Sailun, he used to come to the

bakery and that is why Sailun knew him. Sailun has also

stated that he used to see this accused when Sailun used

to go out for a casual walk. That the accused is from the

same locality is satisfactorily established and therefore

the claim of the witnesses that they knew him since prior

to the incident, can not be doubted. A specific role has

been attributed to him by Taufel [P.W.26] Raees [P.W.27]

and Shehzad [P.W.28]. What is significant is that

according to PI Kanani, he is also known as 'Lalo'. As a

matter of fact, he has been arrested on the basis that he

is the accused Lalo who has been named in the FIR and
 673

whose name was mentioned by Zahira and other women to

D.C.P. Patel and PI Baria on the spot itself.

Undoubtedly, as Zahira and others from her family turned

hostile, whether 'Lalo' referred to by them in the F.I.R.

and in the information given by them to the police is the

same as accused No.20, has not been established. It is

however a fact, that he has been arrested on the basis

that he is 'Lalo'. He has never disputed this position

till he was specifically questioned regarding that during

his examination under section 313 of the Code. In this

context, Sailun has referred to him as 'Lala', is

significant. It is true that there is a difference

between 'Lalo' and 'Lala', but considering that Sailun is

Hindi speaking, this difference is not very significant.

The fact that he has been arrested on the basis that he

is 'Lalo'; and that the accused never disputed that he is

known as 'Lalo' also, till the fact was specifically put

to him, is significant. This, though by itself, would

not be sufficient to establish his identity, adds

strength to the evidence of the identifying witnesses as

to the identification done by them and of their claim of

the accused having seen by them in the mob of rioters,

playing an active role therein. The evidence against the

accused No.20, which shows that he was a member of the

unlawful assembly in the night as well as in the morning,

can be safely accepted.

 674

Accused No. 21 -Ravi Rajaram Chauhan-

922. As regards the accused No.21 - Ravi Rajaram Chauhan

- the evidence against him consists of his identification

by Taufel [P.W.26], Shehzad [P.W.28], Yasmin [P.W.29] and

Sailun [P.W.32]. Sailun's identification of the others

other than Sanju [P.W.11], Dinesh [P.W.15] and Lalo is

not of much value. Taufel has pointed out accused No.21

without giving his name initially, but has later on,

mentioned that among the accused identified by him there

is one Ravi whose name he knows. Obviously, Ravi among

the accused identified by him, was only this accused, but

as discussed earlier in case of other accused, the

Special Public Prosecutor did not require Taufel to

point out who that Ravi was. The effect of this failure

would be that the identification is not [Link]

denial of the accused persons including this one - of

they being from the same locality is false and therefore

the claim of Taufel that he knew him prior to the

incident can not be [Link], the role attributed

to him by Taufel to him is only that he was making Taufel

and others get down from the terrace in the morning. He

has been identified by Shehzad by giving a general role

to him as has been given by him to the 7 accused

identified by him without naming them. Yasmin has also

 675

identified the accused No.21 as 'Ravi' and there can be

no doubt that she indeed knew him since prior to the

[Link] has said that Ravi was on friendly terms

with her husband and they used to talk to each other.

Shehzad also stated that Ravi used to be called as

'Marathi' which is quite likely he happens to be a

Maharashtrian, as stated by his Advocates. What role

Yasmin gives him is rather interesting. According to

Yasmin, at the time of incident she was wearing a gold

chain; and that the accused snatched that chain. No

other act during the riots has been attributed by Yasmin

to [Link] my opinion, the character of the act of

snatching chain from her neck was materially different

from the acts which rioters were generally performing.

What he did before or after the hain was snatched,is not

[Link] does not attribute to him any other act or

acts which the rioters were performing. Yasmin

claims to have stated to the police about this accused,

but according to PI Baria, Yasmin did not state before

him that Ravi had snatched the chain which she was

wearing. Though PI Baria's evidence about what witnesses

stated before him is not reliable, the fact remains that

Yasmin's statement is uncorroborated.

923. The information regarding the involvement of this

accused appears to have reached the police very late and

 676

the source of the information has not been brought on

record. Considering this in the light of the nature of

identification evidence against him, it is difficult to

have satisfaction about the involvement of this accused

in the alleged offences. No chain has been recovered

from him during investigation and whether any efforts to

recover it were made, is not clear.

924. There is also evidence of recovery of the stick

[Article R/20] against this accused. This accused was

arrested on 21/05/2002. According to PI Kanani, during

his investigation on 22/05/2002, he disclosed certain

information which was recorded under a panchnama,

pursuant to which the police party and the panchas

recovered a stick [Article R/20] from the hollow place at

the lower portion of a 'babool' tree outside the rear

portion of the house of the accused. A number of

contentions have been raised by the learned Advocates for

the accused regarding the unreliability of this evidence

with which, I do not agree. The panch witnesses to the

panchnama [Ex.85] Avdhoot Nagarkar [P.W.23] and Abdul

Samin Abdul Gani Mansuri [P.W.37] have been examined and

though Avdhoot Nagarkar has turned hostile, the other

panch Abdul Samin Abdul Gani Mansuri has supported the

prosecution. As in the view that I am taking, not much

depends on the acceptability of this evidence, I propose

 677

to discuss the evidence only briefly. Avdhoot Nagarkar

[P.W.23] appears to be an untruthful witness and is

clearly determined to assist the accused. He invented the

story of not having witnessed anything and said only

having made a signature on a paper, but when it was

revealed that there were 3 signatures of his, tried to

deny that the other 2 signatures were his. Later on, he

admitted the second signature also as his. He even

claimed not to have seen the accused No.21 – Ravi - which

does not seem likely, as when this witness was examined

in the Court at Vadodara, there is every likelihood of

his having seen the accused No.21 - Ravi. In fact, his

deposition recorded in that Court clearly shows that it

was specifically put to him that the accused No.21 – Ravi

- who was present before the Court, was present in the

police station. This suggestion was denied as false by

this witness before that Court, but this fact indicates

that he had seen the accused No.21 before that Court. In

spite of this, in a dramatic way and to emphasize his

point, he made a false statement of not having seen the

accused No.21 at any time before. The evidence of Abdul

Samin Gani Mansuri [P.W.37] supports the prosecution. He

could not however identify the accused. In his cross-

examination nothing which would discredit his version has

been brought on record. He was ultimately confronted with

his evidence given in the previous trial and was made to

 678

admit, that, before that Court he had stated that he had

not seen anything; and that only his signatures were

taken at 2 places on the panchnama. In the re-examination

he was asked the reason for the inconsistency between his

version in that Court and in this Court to which he has

replied that 'there the victims of the incident

themselves had not supported the prosecution case and

therefore, he gave false evidence in the Court at

Vadodara'. In the re-examination, he agreed that he

deliberately gave false evidence in the Court at

Vadodara, but volunteered to add as follows: 'I have to

stay at Vadodara'. The witness has made a statement

against his own interest and is incriminatory in nature

Such statement being against his interest, ought to be

believed. The version of this witness as given by him in

this Court appears to be truthful and correct and it can

not be discredited by reason of it being inconsistent

with what he stated in the Court at Vadodara. On the

contrary, he was clearly under fear and his explanation

that he had to stay at Vadodara is indicative of the

factor that being a case of communal riots he apprehended

that by giving evidence implicating the accused he would

invite wrath of many, making it impossible for him to

stay in Vadodara.

925. Though the evidence of recovery of the stick

 679

[Art.R/20] at the instance of the accused can be safely

accepted, it does not have much value to advance the case

against the accused. This weapon is not shown to be

connected with the alleged offences. Admittedly, no

stains of blood could be seen on the weapon and none were

found even in its examination in the forensic Science

Laboratory. The offence had taken place on 01/03/2002,

The recovery though effected immediately after the arrest

of the accused No.21, was effected - much late from the

date of offence - on 22/05/2002. As huge mob was

involved in the alleged offences and there were number of

persons from the locality who were involved in the

offences, the recovery of the stick in question, on

22/05/2002, can have some other explanations also. In

the facts of the case, I am not inclined to take into

consideration the recovery of a stick at his instance as

a circumstance against the accused, adding weight to the

evidence of identification that exists against him.

926. In the peculiar circumstances, and considering the

role attributed to him, coupled with the fact that the

information of his involvement was obviously reached much

later to the investigating agency – with the source not

made known to the Court,- I think the possibility of this

accused being guilty is no more than the possibility of

he being innocent.
 680

927. In order to ascertain what offences have been

committed by the accused who are found to have been the

members of the unlawful assembly, it needs to be examined

as to what offences were committed by the members of the

unlawful assembly. In view of the earlier discussion,

the accused persons who have been held to be the members

of the unlawful assembly at the time when those offences

were committed, would be guilty in respect of those

offences by virtue of the provisions of Section 149 of

the I.P.C. The members of the unlawful assembly have

committed [apart from being members thereof] an offence

of rioting, punishable under Section 147 of the I.P.C.

The members of the unlawful assembly had set the

handcarts, motorbike, rickshaw tempos, etc., on fire and

had also set on fire the Best Bakery building, the

'wakhar' of Lal Mohammad [P.W.36], house of Aslam, etc.,

and thereby committed offences punishable under Sections

435 and 436 of the I.P.C.

928. The evidence shows that the members of the unlawful

assembly robbed maida, ghee, sugar, etc., which was in

the bakery. This amounts to dacoity as all the

ingredients of dacoity are present and established by the

evidence.
 681

929. Though there is no direct evidence about the members

of the unlawful assembly committing criminal trespass,

the robbing of the maida, ghee, sugar, etc., could not

have been done without making an entry inside the house.

Further, though the manner in which the 'wakhar' of Lal

Mohammad was set on fire, is not clear, obviously, by

making an entry inside, fire was set.

930. Also, there is evidence that the rioters had dragged

Kausarali and Lulla from the first floor. Thus, the

members of the unlawful assembly had committed criminal

trespass by entering inside the Best Bakery building and

the 'wakhar' of Lal Mohammad and it is clear that the

said criminal trespass, which amounts to house trespass,

was committed in order to committing a number of

offences, including an offence punishable with death.

Setting fire to the wood below the Best Bakery building

is an act which, in the event of deaths having been

caused on that account [as have been caused actually],

would amount to an offence of murder. The members of the

unlawful assembly therefore committed offences punishable

under Sections 449, 450 and 451 of the I.P.C.

931. Also, the members of the unlawful assembly had

assaulted the victims by dangerous weapons and caused

grievous hurt to the vicims. The members of the unlawful

 682

assembly had also caused hurt to the victims by burns.

Thus, the offences punishable under Sections 326 of the

I.P.C. and 324 of the I.P.C. were committed by the

members of the unlawful assembly.

932. Prakash, Baliram and Ramesh, as also Firoz and

Nasru, who were assaulted in the morning, died due to

the injuries inflicted on them by the members of the

unlawful assembly and thus in the morning also, the

offence of murder was committed.

933. Lastly, the members of the unlawful assembly

committed an offence punishable under Section 188 of the

I.P.C. It is clear that the fact that curfew was in

force, was known to the members of the unlawful assembly

and in any case, there is positive evidence of Bhimsinh

Solanki [P.W.66] that announcement that curfew had been

imposed, was being made by him while patrolling. Some of

the accused have also committed offences punishable under

Sections 144 of the I.P.C. and 148 of the I.P.C.

934. In my opinion, on the facts proved, the offence

punishable under Section 342 of the I.P.C. cannot be said

to have been committed. The inmates of the Best Bakery

building, in effect, had been prevented from coming out

of the building. Such effect was however only incidental,

 683

resulting from the fire that was set and the presence of

the rioters outside the building.

935. As a result of the aforesaid discussion, it is clear

that the accused whose presence in the unlawful assembly

in the morning, as a member thereof is proved, are

liable for the offences committed by the members of the

unlawful assembly in the morning. The accused whose

presence, as members, in the unlawful assembly in the

night is proved, are liable for the offences committed by

the members of the unlawful assembly in the night.

Needless to say that those who are proved to be the

members of the unlawful assembly in the night as well as

in the morning, are liable for the offences committed

both in the night as well as in the morning.

Hence, Point Nos. 12 and 13 are answered

accordingly.

As to point No.14:

936. At this stage, I have heard the accused on the

question of sentence. Shri Ashik Shirodkar, the learned

Senior Advocate, on behalf of the accused, states that he

has no submission to make on the question of sentence;

and that the matter is left to the Court.

 684

937. Heard [Link] Rao, the learned Special Public

Prosecutor for the State of Gujarat. She has submitted

that an appropriate sentence be awarded by keeping in

mind the seriousness of the offences and the number of

deaths caused.

938. Though this indeed is one of the aspects of the

matter, it cannot be ignored that the accused are being

convicted by virtue of the provisions of section 149 of

the Code. The exact role played by each accused in the

entire incident is not specifically proved. Though

there is no rule that the death sentence can not 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.

939. Much damage was caused to the property. Much

destruction of the property was done. As such, I think

it proper to impose appropriate sentences of fine also,

in addition to the substantive sentences. It would also

be appropriate to award compensation to be paid to the

victims, keeping in mind the provisions of section 357 of

the Code.
 685

940. Taking into consideration all the relevant aspects

of the matter, in my opinion, the following sentences

will meet the ends of justice.

In the result, the following order is passed.

O R D E R

1. All the accused are acquitted of the charge of an

offence punishable under section 342 of the IPC read with

section 149 of the IPC.

2. Accused Nos. 2, 3, 5, 10, 13, 17, 19 and 21 are

acquitted of the charge of offences punishable under

Section 143 of the I.P.C., Section 147 of the I.P.C.,

Section 324 of the I.P.C. read with Section 149 of the

I.P.C., Section 326 of the I.P.C. read with Section 149

of the I.P.C., Section 302 of the I.P.C. read with

Section 149 of the I.P.C., Section 435 of the I.P.C. read

with Section 149 of the I.P.C., Section 436 of the I.P.C.

read with Section 149 of the I.P.C., Section 395 of the

I.P.C., Section 448 of the I.P.C. read with Section 149

of the I.P.C., Section 449 of the I.P.C. read with

Section 149 of the I.P.C., Section 450 of the I.P.C. read

with Section 149 of the I.P.C. and Section 451 of the

I.P.C. read with Section 149 of the I.P.C.

 686

3. Accused nos.2, 3, 5, 10, 13, 17 and 19 be set at

liberty forthwith, unless required to be detained in some

other case.

4. The bail bond of accused no.21 stands discharged.

5. Accused No.1 - Rajubhai Dhamirbhai Baria, accused

no.14 - Jagdish Chunilal Rajput, accused no.16 -

Shanabhai Chimanbhai Baria and accused no.18 - Shailesh

Anupbhai Tadvi are acquitted of the charge of offences

punishable under Section 395 of the I.P.C., Section 435

of I.P.C. r/w Section 149 of the I.P.C., Section 436 of

the I.P.C. read with Section 149 of the I.P.C., Section

448 of the I.P.C. read with Section 149 of the I.P.C.,

Section 449 of the I.P.C. read with Section 149 of the

I.P.C., Section 450 of the I.P.C. read with Section 149

of the I.P.C., Section 451 of the I.P.C. read with

Section 149 of the I.P.C.

6. Accused No.1 - Rajubhai Dhamirbhai Baria, Accused

No.4 - Pankaj Virendragir Gosai, Accused No.11 - Sanjay @

Bhopo Ratilal Thakkar, Accused No.12 - Bahadursinh @

Jitu Chandrasinh Chauhan, Accused No.14 - Jagdish

Chunilal Rajput, Accused No.15 - Dinesh Phulchand

Rajbhar, Accused No.16 - Shanabhai Chimanbhai Baria,

 687

Accused No.18 - Shailesh Anupbhai Tadvi, and Accused

No.20 - Suresh @ Lalo Devjibhai Vasava are convicted of

an offence punishable under section 143 of the I.P.C. and

each of them is sentenced to suffer rigorous imprisonment

for 6 [six] months, and also to pay a fine of Rs.500/-

[Rupees five hundred only] each, in default, to suffer

further rigorous imprisonment for 15 [fifteen] days.

7. They are also convicted of an offence punishable

under Section 147 of the I.P.C. and each of them is

sentenced to suffer rigorous imprisonment for 2 [two]

years, and also to pay a fine of Rs.1,000/- [Rupees one

thousand only] each, in default, to suffer further

rigorous imprisonment for 1 [one] month.

8. They are also convicted of an offence punishable

under Section 324 of the I.P.C. read with Section 149 of

the I.P.C. and each of them is sentenced to suffer

rigorous imprisonment for 3 [three] years, and also to

pay a fine of Rs.1000/- [Rupees One thousand only] each,

in default, to suffer further rigorous imprisonment for 1

[one] month.

9. They are also convicted of an offence punishable

under Section 326 of the I.P.C. read with Section 149 of

the I.P.C. and each of them is sentenced to suffer

 688

imprisonment for life and also to pay a fine of

Rs.5000/- [Rupees five thousand only] each, in default,

to suffer further rigorous imprisonment for 5 [five]

months.

10. They are also convicted of an offence punishable

under Section 302 of the I.P.C. read with Section 149 of

the I.P.C. and each of them is sentenced to suffer

imprisonment for life and also to pay a fine of

Rs.5,000/- [Rupees five thousand only] each, in default,

to suffer further rigorous imprisonment for 5 [five]

months.

11. They are also convicted of an offence punishable

under Section 188 of the I.P.C. and each of them is

sentenced to suffer simple imprisonment for a period of 1

[one] month.

12. Accused No.4 - Pankaj Virendragir Gosai, Accused

No.11 - Sanjay @ Bhopo Ratilal Thakkar, Accused No.12 -

Bahadursinh @ Jitu Chandrasinh Chauhan, Accused No.15 -

Dinesh Phulchand Rajbhar, and Accused No.20 - Suresh @

Lalo Devjibhai Vasava are convicted of an offence

punishable under Section 435 of the I.P.C. read with

Section 149 of the I.P.C. and each of them is sentenced

to suffer rigorous imprisonment for 7 [seven] years, and

 689

also to pay a fine of Rs.5,000/- [Rupees five thousand

only] each, in default, to suffer further rigorous

imprisonment for 5 [five] months.

13. They are also convicted of an offence punishable

under Section 436 of the I.P.C. read with Section 149 of

the I.P.C. and each of them is sentenced to suffer

imprisonment for life, and also to pay a fine of

Rs.10,000/- [Rupees ten thousand only] each, in default,

to suffer further rigorous imprisonment for 10 [ten]

months.

14. They are also convicted of an offence punishable

under Section 395 of the I.P.C. and each of them is

sentenced to suffer rigorous imprisonment for 10 [ten]

years and also to pay a fine of Rs.500/- [Rupees five

hundred only] each, in default, to suffer further

rigorous imprisonment for 15 [fifteen] days.

15. They are also convicted of an offence punishable

under Section 448 of the I.P.C. read with Section 149 of

the I.P.C. and each of them is sentenced to suffer

rigorous imprisonment for 1 (one) year and also to pay a

fine of Rs.500/- [Rupees five hundred only] each, in

default, to suffer further rigorous imprisonment for 15

[fifteen] days.
 690

16. They are also convicted of an offence punishable

under Section 449 of the I.P.C. read with Section 149 of

the I.P.C. and each of them is sentenced to suffer

rigorous imprisonment for 10 [Ten] years and also to pay

a fine of Rs.500/- [Rupees five hundred only] each, in

default, to suffer further rigorous imprisonment for 15

[fifteen] days.

17. They are also convicted of an offence punishable

under Section 450 of the I.P.C. read with Section 149 of

the I.P.C. and each of them is sentenced to suffer

rigorous imprisonment for 10 [Ten] years and also to pay

a fine of Rs.500/- [Rupees five hundred only] each, in

default, to suffer further rigorous imprisonment for 15

[fifteen] days.

18. They are also convicted of an offence punishable

under Section 451 of the I.P.C. read with Section 149 of

the IPC and each of them is sentenced to suffer rigorous

imprisonment for 2 [Two] years and also to pay a fine of

Rs.500/- [Rupees five hundred only] each, in default, to

suffer further rigorous imprisonment for 15 [fifteen]

days.

19. Accused No.11 - Sanjay @ Bhopo Ratilal Thakkar,

 691

Accused No.12 - Bahadursinh @ Jitu Chandrasinh Chauhan,

Accused No.15 - Dinesh Phulchand Rajbhar, Accused No.16 -

Shanabhai Chimanbhai Baria and Accused No.20 - Suresh @

Lalo Devjibhai Vasava are convicted of an offence

punishable under Section 144 of the I.P.C. and each of

them is sentenced to suffer rigorous imprisonment for 2

[two] years, and also to pay a fine of Rs.500/- [Rupees

five hundred only] each, in default, to suffer further

rigorous imprisonment for 15 [fifteen] days.

20. They are also convicted of an offence punishable

under Section 148 of the I.P.C. and each of them is

sentenced to suffer rigorous imprisonment for 3 [three]

years, and also to pay a fine of Rs.1,000/- [Rupees one

thousand only] each, in default, to suffer rigorous

imprisonment for 1 [one] month.

21. All the substantive sentences, except the sentences

of imprisonment for life, shall run concurrently.

22. The accused shall be entitled for set off as per

Section 428 of the Code of Criminal Procedure.

23. The sentences of imprisonment for life shall run

after the expiration of the concurrent sentences for

imprisonment for terms.

 692

24. No order for the disposal of the property is passed

at this stage, as the case against the original accused

Nos.6, 7, 8 and 9 is pending.

25. Issue notices to Nasibulla Habibulla Shaikh

[P.W.30], Nafitulla Habibulla Shaikh [P.W.31],

[Link] Habibulla Shaikh [P.W.35], [Link]

Habibulla Shaikh [P.W.40] and [Link] Habibulla Shaikh

[P.W.41] to show cause why each of them should not be

tried summarily for giving false evidence and punished

for the offences punishable under Section 193 of the

I.P.C., as contemplated under Section 344 of the Code of

Criminal Procedure, returnable on 20/03/2006.

26. If fine is realized, an amount of Rs.20,000/-

[Rupees twenty thousand only] each shall be paid to

each of the injured witnesses -i.e. Taufel Ahmed

Habibulla Siddiqui [P.W.26], Raees Khan Nankau Khan

[P.W.27], Shehzad Khan Hasan Khan Pathan [P.W.28] and

Sailun Hasan Khan Pathan [P.W.32], as compensation under

Section 357(1)(b) of the Code of Criminal Procedure.

27. Out of the fine imposed on accused nos.4, 11, 12, 15

and 20, if realized, an amount of Rs.60,000/- [Rupees

sixty thousand only] shall be paid to [Link]

 693

Kausarali Shaikh [P.W.34]; and from the remaining amount,

an amount of Rs.40,000/- [Rupees forty thousand only] [or

such other amount as may be available] shall be paid to

Aslambhai Haroonbhai Shaikh [P.W.42], as compensation

under Section 357(1)(c) of the Code of Criminal

Procedure.

([Link])
[Link] Judge,
February 24, 2006 Greater Bombay (Mazgaon)