Gujarat High Court
State Of Gujarat vs Pinalkumar Sureshbhai Patel on 27 April, 2021
Bench: Ashutosh J. Shastri
R/CR.A/66/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 66 of 2011
With
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 2 of 2020
In R/CRIMINAL APPEAL NO. 66 of 2011
With
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/CRIMINAL APPEAL NO. 66 of 2011
With
R/CRIMINAL APPEAL NO. 714 of 2011
With
R/CRIMINAL APPEAL NO. 715 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
PINALKUMAR SURESHBHAI PATEL & 50 other(s)
==========================================================
Appearance:
MR MITESH AMIN, PUBLIC PROSECUTOR (2) WITH MR DHARMESH
DEVNANI, APP for the State Appellants (Criminal Appeal No.66 of 2011)
MR VIJAY PATEL for HL PATEL ADVOCATES (2034) for the opponent(s) /
MR PP MAJMUDAR (5284) for the Opponent(s)/Respondent(s) No.12
MR SP MAJMUDAR (3456) for the Opponent(s)/Respondent(s) No.12
MR YV BRAHMBHATT for the Appellants (Criminal Appeal Nos.714 & 715 of
2011)
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 27/04/2021
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1 The above three appeals have been preferred
assailing correctness of the judgment and order dated
23.09.2010 passed by the 2nd Additional District & Sessions
Judge, Anand in Sessions Case Nos.8 of 2006 and 10 of
2006 whereby all the accused (53 in number) have been
acquitted of all the offences under which they were charged
which include offences under Sections 147, 148, 149, 436,
332, 337, 153(3), 454, 457, 380 of the Indian Penal Code,
1860 and Section 135 of the Bombay Police Act.
2 Criminal Appeal Nos.66 of 2011 has been
preferred by the State and Criminal Appeal Nos.714 of 2011
& 715 of 2011 have been preferred by the complainant side.
3 The incident is of unlawful assembly entering
into rioting, loot, arson, causing bodily injuries and other
related offences. The incident, is alleged to have taken
place at 4:30 p.m. on 01.03.2002 near the Masjid in
village Vasad, Vasad Police Station, District Anand. The
First Information Report is lodged by Harisingh Noparam
Jhat, Assistant Sub-Inspector, SRP Group 10 Company
D, Ukai, which was registered as I-C.R.No.49 of 2002,
Vasad Police Station for the offences punishable under
Sections 147, 148, 149, 436, 332, 337 and 153 of the
Indian Penal Code and under Section 135 of the Bombay
Police Act. The incident, as described in paragraph 2 of
the judgment of the trial Court, is reproduced below:
"2 The fact of the case of prosecution against the
accused persons is such that the communal riots
have been erupted in Gujarat State as a reaction of
the train massacre which took place at Godhra on
27-02-2002, in that connection, the accused
persons of this case, in collusion with the other
people and the mob of about 3 to 4 thousand people
have gathered at about 16:30 hours on 01-03-2002
at Vasad with an intention to take revenge on the
Muslims, have formed unlawful assembly, equipped
themselves with deadly weapons like scythes,
spears, sticks, swords etc. and started stone pelting
on the Mosque situated near the Tower of Vasad.
The S.R.P. personnel tried to persuade them, but
the mob turned out of control and the Mosque and
the houses of Muslims were sabotaged and set on
fire. When the personnel of S.R.P. gave warning to
this unruly mob, they pelted stones on S.R.P. and
as they have set on fire the Mosque and houses of
the Muslims, the personnel of S.R.P. have started
firing, in which Pareshbhai @ Dipakbhai Ishwarbhai
Parekh, Lilaben Maheshbhai Ambalal Shah and
Pinkalben Bhupendrabhai Ramanbhai Soni have
died in firing and injuries were sustained to accused
nos.1 to 9 and all the accused persons and the mob
of remaining people have sabotaged and set on fire
at Vasad Tower Takiya, Kumbharvada, Vasad
Vadala, Devpura, Vasad Cross Roads, Sangam Hotel
Compound, Pashwa Complex Compound, Luv-Kush
Apartment, Hirakunj Society, Unnat Hotel, drinking
water tank of cold water situated near Hotel Kismat
and the Dargah located in the farm opposite to Toll
Booth. They also sabotaged the houses of the
Muslims who left and robbed their utensils, articles,
precious ornaments of gold and silver, household
goods and cash amount, thus in total they have
caused loss of lakhs of rupees. The accused no. 44
& 45 have looted the amount of Rs.1,42,000/- from
the house of witness nos. 56 & 63. Though the
Notification of the District Magistrate about
prohibition to keep arms was in force, they have
violated it, hence have committed an offence. The
complaint regarding the same was lodged against
the mob of about 3 to 4 thousand by Harising Jat of
S.R.P. Group no.10 who was on-duty at the relevant
time at 18:15 hours on 01-03-2002. The on-duty
P.S.0. at the relevant time had recorded the
complaint and allotted the further investigation to
P.l. - Mr.Ranmalsinh Chandrasinh Rathod - who
was rendering his duly as P.S.I. at the relevant time.
I.O. - Mr. Rathod has recorded the statements of the
witnesses of this case. He had seized the cases of
bullets which were used at the time of police firing
in presence of the Panchas. He carried out the
procedures to fill Inquest on dead body of 3 persons
and for P.M. of the dead body of the deceased, and
handed over the dead body after P.M. He drew the
Panchnama of the scene of offence, recorded the
statements of the witnesses. Received the Treatment
Certificate and P.M. note of the deceased. As the
names of the accused persons were found out
during the investigation, at first 9 accused persons
were arrested on 21-03-2002 and 44 accused
persons were arrested on 19-07-2002. The clothes
were seized of the S.R.P. personnel who were
present at the time of incident and the clothes of 3
persons who were died. As there was sufficient
evidence against the accused persons, the Charge-
sheet was filed in the Court of Judicial Magistrate
(F.C.) of Anand. As the said Ld. Judge does not have
the jurisdiction to run the trial of this case, he had
committed this case to Sessions Court, Nadiad u/s.
209 of Cr.P.C. vide order dated 12-07-2004. It was
registered vide Sessions Case no. 199 of 2003 at the
relevant time. The said case was tried in the Court
of Addl. Sessions Court, Camp Court, at Anand at
the relevant time. It was transferred (to this Court)
for further procedure."
4 Two sessions cases were registered for the reason
that one of the accused (No.4) Keyurbhai Ashokbhai Patel
was absconding, as such the original charge sheet was only
against 52 accused viz. 1, 2, 3, 5 to 53 and later on the said
accused No.4 was arrested and separate charge sheet was
submitted and as such a separate sessions case was
registered. However, both the sessions cases were clubbed
and tried together. The trial Judge framed the charges on
16.06.2004 based upon the police report against the
accused for the alleged offences in support of which
evidence was collected.
5 The police during the investigation collected 34
documentary evidence which were exhibited and proved
during the trial. The prosecution further examined as many
as 90 witnesses. The list of witnesses include formal
witnesses as well as witnesses of fact. The witnesses of fact
were further categorised into two categories; (i) who had
sufferred losses i.e. victims, but had not seen the
commission of crime; and (ii) who were eye witnesses to the
occurrence and may have also sufferred loss of property or
had suffered injuries. Prosecution examined the following
90 witnesses during the trial:
PW No. Exh. Name of Witness
1 77 Madhusudan Jayantilal Soni
2 79 Chandubhai Shanabhai Gohil
3 81 Rajeshbhai Kantibhai Patel
4 83 Undesinh Bhathibhai Parmar
5 84 Bhalabhai Chaturbhai
6 89 Ramabhai Pujabhai Zala
7 91 Dilipsinh Chhatrasinh Parmar
8 92 Nitinbhai Thakorbhai Patel
9 94 Sureshbhai Prabhatbhai Gameti
10 96 Kantibhai Mithabhai
11 98 Ramanbhai Lavjibhai Rohit
12 99 Naginbhai Bhupatbhai Parmar
13 101 Alpeshbhai Ramanbhai Parmar
14 102 Jayantibhai Chhitubhai Vasava
15 108 Mahammad Hanif Fakirmahammad Memon
16 109 Firoz Mohsinali Vohra
17 110 Nazirbhai Ibrahimbhai
18 111 Murlidhar Hiralal Shah
19 112 Shafi Mohammed Fakirmohammed Memon
20 113 Husseinali Sharif Tharadara
21 114 Iqbalbhai Adambhai
22 115 Yunusbhai Isubbhai Vohra
23 116 Salimbhai Yusufbhai Vohra
24 117 Madinabibi Widow of Kalusha Subhratisha
Diwan
25 118 Ibrahimbhai Adambhai Vohra
26 119 Habibsha Alaudinsha Diwan
27 120 Haji Hasambhai Chhotani
28 121 Asiquali Basirali Sheikh
29 122 Swatiben Maheshkumar
30 123 Maheshbhai Ambalal Shah
31 124 Jashbhai Prabhudas
32 125 Bhupendrabhai Ramanbhai Soni
33 126 Ishwarbhai Shankarbhai Parekh
34 127 Abdulwahab Mahammad Hanif Pathan
35 128 Mahammad Rafiq Diwan
36 129 Ayubsha Alauddin Diwan
37 133 Ambusha Lallubha Diwan
38 134 Idrishbhai Ganibhai
39 135 Mahammadsha Ambusha Diwan
40 136 Jashbhai Fatesinh
41 137 Mehboobbhai Jashbhai Malek
42 138 Kalubhai Jashbhai
43 139 Himmatsinh Udesinh
44 140 Rahimaben Widow of Ganibhai Ibrahimbhai
45 141 Sirajbhai Alijbhai
46 142 Rajubhai Bhikhabhai Vohra
47 143 Yusubsha Pirasha Diwan
48 144 Ganibhai Adambhai
49 145 Mumtazben w/o. Rafiqbhai Mehboobbhai
50 146 Dr. Hemang Rameshchandra Shah
51 153 Sikandersha Jivasha Diwan
52 154 Manuben w/o. Mahammad Hanif Sumansha
Diwan
53 155 Kherunaben w/o. Mustufa Motisha Diwan
54 156 Shantaben alias Sushilaben widow of
Chhotabhai Parmar
55 157 Abdulmajid Abdulrasidkhan Pathan
56 158 Jamelaben widow of Rahimbhai Jivabhai
57 161 Munnabhai alias Noormohammed Adambhai
Vohra
58 162 Bhikhabhai Shabaibhai Vohra
59 163 Aminaben Yusufbhai Vohra
60 164 Shantaben w/o. Pujabhai Gamechi
61 168 Abbasbhai Habibbhai Jagrara
62 169 Mustufabhai Ganibhai Qureshi
63 170 Idris Alauddin
64 171 Ashrafbaig Abdulbaig Mirza
65 172 Saifuddin Akbarali
66 173 Nareshkumar Govindlal Bhalja
67 179 Sabbirbhai Chhatrasinh Chauhan
68 180 Rafiqbhai Mehmoodbhai Malek
69 181 Shirajsha Alauddinsha Diwan
70 182 Tirthraj Balgovind Upadhyay
71 183 Ashok Ramdas Kor
72 184 Ramanbhai Gulambhai Gameti
73 193 Ravjibhai Himmatsinh Gohil
74 195 Harisinh Noparam Jat
75 197 Shakinaben Yusufbhai Vohra
76 198 Waheedaben Anwarbhai Vohra
77 199 Yusufbhai Rasoolbhai Vohra
78 202 Mahemudbhai Abdulrahim Mansuri
79 208 Satarbhai Aadambhai Vohra
80 209 Aadambhai Shabhaibhai
81 210 Madinaben Aadambhai
82 211 Salimbhai Aadambhai
83 213 Samimben Salimbhai Vohra
84 214 Anvarbhai Yusufbhai Vohra
85 215 Ismailbhai Yusufbhai Vhora
86 347 Dr. Hirenkumar Nandlal Zha
87 347 Yusufbhai Alimohamad Sunesara
88 351 Dr. Abhyud Verma
89 352 Yusubkhan Nasibkhan
90 357 Ranmalsinh Chandrasinh Rathod
6 Briefly we will deal with the relevant witnesses,
the purpose for which they were examined, whether they
supported the prosecution case and if yes to what extent
and / or whether they turned hostile. PW Nos. 1 to 14 are
panch witnesses, who were said to be signatories to the
recovery memos. The recovery memos related to the damage
caused to vehicles, injuries caused to the accused, damage
caused to houses and shops, recovery of clothes, damage
caused to Masjid and Dargah, etc. All these 14 witnesses i.e.
PW Nos. 1 to 14 did not support the prosecution case and
accordingly upon an application being moved by the Public
Prosecutor, the trial Judge declared them hostile and
allowed the prosecution to cross-examine them. PW Nos.15,
16 and 17 were produced as witnesses to support the
prosecution case, but their evidence is totally based on
hearsay. PW Nos.18 to 25, 27, 28, 34, 37, 38, 39, 40, 41,
42, 43, 44, 45, 46, 47, 48, 49, 52, 53, 54, 55, 56, 57, 58,
59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 75, 76 and 77 had
sufferred losses (they are victims of occurrence), but they
were not present at the time of occurrence and as such had
not seen the commission of crime. PW Nos.26, 29, 30, 31,
35, 36, 51, 78, 79, 80, 81, 82, 83, 84 and 85 are the
witnesses of fact, who have sufferred also and had
witnessed the occurrence. PW Nos.70, 71 and 72 are the
Police officers, who were injured in the occurrence and have
been examined as eye witnesses of the incident. The
remaining witnesses are the family members of the three
deceased, who have been examined to identify the dead
bodies and they had also narrated some part of the incident,
but have not been able to identify any of the accused. Other
witnesses are doctors, who had given treatment to the
injured both to the police officials as also the accused side
and had conducted autopsy on the body of the three
deceased. Rest of the witnesses are formal witnesses of the
Police Department, who have proved the police papers.
7 The trial Court, after considering the entire
material on record both documentary and oral, recorded the
following findings:
[1] The prosecution has fully established that an
unlawful assembly had collected at the given date,
time and place and it had committed arson, loot,
rioting and damaging private as well as public
property.
[2] In the said incident, three persons from the
accused side died of bullet injuries, which was a result
of private firing and not police firing.
[3] A number of accused had received injuries, which
were duly examined and proved.
[4] A number of Police officials had received injuries,
which were also examined and proved.
[5] Even though the witnesses of the recovery memos
(panch witnesses) had turned hostile, but nevertheless
it was proved that the loss of life and property had
taken place in the given incident.
[6] The eye witnesses produced by the prosecution
did not instill and inspire confidence in placing
reliance upon their testimonies in the identification of
the accused.
[7] The trial Court discussed each of the eye
witnesses both their examination in chief and also
their cross-examination, but could not find even one
eye witness worthy of reliance, for the reasons given in
the judgment.
[8] Once there was no reliable and credible evidence
to prove the charge against any of the accused, the
trial Court recorded acquittal of all the accused for all
the offences they were charged.
8 Aggrieved by the aforesaid judgment of acquittal,
the State has preferred Criminal Appeal No.66 of 2011,
whereas the complainant side has preferred Criminal
Appeal Nos.714 of 2011 and 715 of 2011.
9 We have heard Mr. Mitesh Amin, learned Public
Prosecutor with Mr. Dharmesh Devnani, learned Additional
Public Prosecutor for the State appellant, Mr.
Y.V.Brahmbhatt, learned counsel appearing for the
appellant in the victims' appeal, Mr. Vijay Patel, learned
advocate for M/s. H.L.Patel Advocates representing all the
respondents except respondent No.12, who is represented
by Mr. P.P.Majmudar.
10 Mr.Amin, learned Public Prosecutor submitted
that there was cogent and reliable evidence led by the
prosecution before the Trial Court which completely and
without any iota of doubt proved the charges against all the
accused, but despite the same the learned Trial Judge
against the weight of evidence on record recorded acquittal.
According to Shri Amin there were five eye-witnesses
account which were unimpeachable namely that of P.W.
No.26, 79, 80, 82 and 51 (Exhibits - 119, 208, 209, 211 and
153 respectively). Shri Amin took us to the relevant contents
of their statements and submitted that they had proved the
guilt of the named accused and as such the accused named
by these five witnesses ought to have been convicted and
sentenced accordingly.
11 Further Shri Y.V.Brahmbhatt, learned counsel
appearing for the complainant in their appeals submitted
that in addition to the aforesaid five witnesses relied upon
by Shri Amin, reliance may be placed upon eight other
witnesses of fact namely PW-78, PW-83, PW-84, PW-85, PW-
70, PW-71, PW-72 and PW-74 (Exhibits-202, 213, 214, 215,
182, 183, 184 and 195 respectively). Drawing our attention
to the statements of the aforesaid witnesses Shri
Brahmbhatt submitted that the accused whose names have
been taken by these witnesses could not have been
acquitted and the learned Trial Judge committed serious
error in discarding the evidence of these witnesses and
recording an acquittal.
12 Learned counsels for the appellants namely Shri
Amin, learned Public Prosecutor and Shri Brahmbhatt,
learned counsel submitted that the learned Trial Judge
discarded evidence of these witnesses as not reliable and
credible for flimsy reasons and minor contradictions,
thereby vitiating the findings recorded by it. Shri
Brahmbhatt also placed reliance upon Section 114 of the
Evidence Act and submitted that all those who had formed
an unlawful assembly with deadly weapons and with a pre-
planned motive, presumption ought to have been drawn
against them for having committed the crime of riot, loot
and arson.
13 On the other hand, Shri Vijay Patel, learned
counsel for H.L.Patel Advocates appearing for all the
respondent accused except accused No.12 represented by
Shri S.P.Majmudar, drew our attention to the statements of
all these witnesses relied upon by the appellants and took
us to the relevant portions which impeach their testimony
and discredited the same making it unworthy of reliance.
Shri Majmudar representing respondent No.12 adopted the
arguments advanced by Shri Patel.
14 We will deal with the respective submissions
advanced by the learned counsels for the appellants as also
the respondents, but before that we will record a general
view on the evidence led during the trial. We are in
agreement that the finding recorded by the learned Trial
Judge that the prosecution had fully established the
occurrence of the incident at the given date, time and place.
It was also established that there had been damage to the
property. It is also established beyond doubt that there had
been arson, loot and robbery. The question therefore which
lies for determination by us and as also dealt with by the
Trial Judge in detail is as to who committed the crime.
Whether any of the accused facing the trial had committed
any of the offence alleged? Whether the prosecution had led
reliable, credible and unimpeachable evidence to establish
that it was the accused and the accused alone or some of
the accused who had committed the crime by being actually
present in that unlawful assembly at the given date, time
and place with deadly weapons and were a party to the
commission of the crime?
15 As already recorded above, Shri Mitesh Amin,
learned Public Prosecutor had relied upon five eye-
witnesses, whereas Shri Brahmbhatt added eight more
witnesses on which he placed reliance which also included
the Police Officials examined by the prosecution who are
said to have suffered injuries in the entire transaction. We
will deal with each of these witnesses at a later stage.
16 It would be relevant to record here that three
persons, two women and one man, namely Lilaben
Maheshbhai Ambalal Shah, Pinkalben Bhupendrabhai
Ramanbhai Soni and Pareshbhai @ Dipakbhai Ishwarbhai
Parekh died due to bullet injuries in the said transaction. It
has been proved by the prosecution that these bullet
injuries were caused by private shooting and not by firing by
Police. Evidence has come on record that the complainant
community had actually opened fire because of which three
persons died. The cause of the death of these three
deceased is not an issue in the present trial out of which
these appeals arise.
17 At the outset, we may refer to the settled
principles on the scope of hearing appeal against the
judgment and order of acquittal.
18 Pertaining to the question of an appeal against
acquittal and the scope of power of appellate court in an
appeal against acquittal, it is appropriate to refer Padam
Singh v. State of U.P., (2000) 1 SCC 621, in which while
explaining the duty of the appellate court, the Supreme
Court has expressed thus:
"It is the duty of an appellate Court to look into the
evidence adduced in the case and arrive at an
independent conclusion as to whether the said evidence
can be relied upon or not and even if it can be relied
upon, then whether the prosecution can be said to have
been proved beyond reasonable doubt on the said
evidence. The credibility of a witness has to be adjudged
by the appellate court in drawing inference from proved
and admitted facts. It must be remembered that the
appellate court, like the trial court, has to be satisfied
affirmatively that the prosecution case is substantially
true and the guilt of the accused has been proved
beyond all reasonable doubt as the presumption of
innocence with which the accused starts, continues right
through until he is held guilty by the final Court of
Appeal and that presumption is neither strengthened by
an acquittal nor weakened by a conviction in the trial
court."
19 In K. Gopal Reddy v. State of Andhra Pradesh,
(1979) 2 SCR 363 : (1979) 1 SCC 355 : AIR 1979 SC 387,
the Supreme Court was considering the power of the High
Court against an order of acquittal under Section 378 of the
Criminal Procedure Code, 1973. Chinnappa Reddy, J. after
considering the relevant decisions on the point stated:
"The principles are now well settled. At one time it was
thought that an order of acquittal could be set aside for
'substantial and compelling reasons' only and Courts
used to launch on a search to discover those 'substantial
and compelling reasons'. However, the 'formulae' of
'substantial and compelling reasons', 'good and
sufficiently cogent reasons' and 'strong reasons' and the
search for them were abandoned as a result of the
pronouncement of this Court in Sanwat Singh & Ors. v.
State of Rajasthan (1961) 3 SCR 120. In Sanwat Singh's
case, this Court harked back to the principles
enunciated by the Privy Council in Sheo Swamp v.
Emperor (1934) 61 IA 398 and re-affirmed those
principles. After Sanwat Singh v. State of Rajasthan, this
Court has consistently recognised the right of the
Appellate Court to review the entire evidence and to
come to its own conclusion, bearing in mind the
considerations mentioned by the Privy Council in Sheo
Swarup's case. Occasionally phrases like 'manifestly
illegal', 'grossly unjust', have been used to describe the
orders of acquittal which warrant interference. But,
such expressions have been used more, as
flourishes of language, to emphasise the
reluctance of the Appellate Court to interfere with
an order of acquittal than to curtail the power of
the Appellate Court to review the entire evidence
and to come to its own conclusion. In some cases
(Ramabhupala Reddy & Ors. v. State of A.P. AIR 1971
SC 460, Bhim Singh Rup Singh v. State of Maharashtra,
AIR 1974 SC 286), it has been said that to the principles
laid down in Sanwat Singh's case may be added the
further principle that "if two reasonable conclusions can
be reached on the basis of the evidence on record, the
Appellate Court should not disturb the finding of the
Trial Court". This, of course, is not a new principle. It
stems out of the fundamental principle of our criminal
jurisprudence that the accused is entitled to the benefit
of any reasonable doubt. If two reasonably probable
and evenly balanced views of the evidence are possible,
one must necessarily concede the existence of a
reasonable doubt. But, fanciful and remote possibilities
must be left out of account. To entitle an accused person
to the benefit of a doubt arising from the possibility of a
duality of views, the possible view in favour of the
accused must be as nearly reasonably probable as that
against him. If the preponderance of probability is all
one way, a bare possibility of another view will not
entitle the accused to claim the benefit of any doubt. It
is, therefore, essential that any view of the evidence in
favour of the accused must be reasonable even as any
doubt, the benefit of which an accused person may
claim, must be reasonable". (emphasis supplied) In
Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC
225, this Court said; "While setting in judgment over an
acquittal the appellate Court is first required to seek an
answer to the question whether the findings of the trial
Court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate Court
answers the above question in the negative the order of
acquittal is not to be disturbed. Conversely, if the
appellate Court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in view
of any of the above infirmities it can then-and then only-
reappraise the evidence to arrive at its own conclusions".
In Alarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC
57, referring to earlier decisions, the Court stated; "The
paramount consideration of the court should be to avoid
miscarriage of justice. A miscarriage of justice which
may arise from the acquittal of guilty is no less than
from the conviction of an innocent. In a case where the
trial court has taken a view based upon conjectures and
hypothesis and not on the legal evidence, a duty is cast
upon the High Court to re- appreciate the evidence in
acquittal appeal for the purposes of ascertaining as to
whether the accused has committed any offence or not.
Probable view taken by the trial court which may not be
disturbed in the appeal is such a view which is based
upon legal and admissible evidence. Only because the
accused has been acquitted by the trial court, cannot be
made a basis to urge that the High Court under all
circumstances should not disturb such a finding"."
20 Therefore, taking into consideration the above
decisions, it can be concluded that the power of the
appellate Court in an appeal against acquittal is the same
as that of an appeal against conviction. But, in an appeal
against acquittal, the Court has to bear in mind that the
presumption of innocence is in favour of the accused and it
is strengthened by the order of acquittal. At the same time,
appellate Court will not interfere with the order of acquittal
mainly because two views are possible, but only when the
High Court feels that the appreciation of evidence is based
on erroneous considerations and when there is manifest
illegality in the conclusion arrived at by the trial Court.
21 In Chandrappa Vs. State of Karnataka (2007
(4) SCC 415), the court stated certain general principles
regarding powers of appellate Court while dealing with an
appeal against an order of acquittal:
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate Court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law;
(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds', 'very
strong circumstances', 'distorted conclusions', 'glaring
mistakes', etc. are not intended to curtail extensive
powers of an appellate Court in an appeal against
acquittal. Such phraseologies are more in the nature of
'flourishes of language' to emphasize the reluctance of
an appellate Court to interfere with acquittal than to
curtail the power of the Court to review the evidence and
to come to its own conclusion.
(4) An appellate Court, however, must bear in mind
that in case of acquittal, there is double presumption in
favour of the accused. Firstly, the presumption of
innocence available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.
22 We will now proceed to deal with the statement of
each of the witnesses relied upon by the appellants and
weigh out the credibility and reliability thereof. As
Mr.Brahmbhatt has also referred to the witnesses relied
upon by Mr. Amin, we are referring to the submissions
made by Mr. Brahmbhatt in detail.
23 Learned counsel appearing for the appellants
submits that, from the depositions of police personnel i.e.
PW-70 Exh-182, PW-71 Exh-183, PW-72 Exh-184, PW-74
Exh-195, PW-90 Exh-357 it clearly appears that on 01-03-
2002 at about 16:30 the mob of 3000 to 4000 persons came
towards the mosque and cordoned mosque from all sides. It
is further submitted that all members of the assembly were
armed with scythes (dharia), sword and spears and they
were pelting stones. As per the instructions of guard
commander to disperse the mob who were out of control,
first lathi charge was resorted but as they set the mosque
on fire and the mob was shouting to kill S.R.P. and
Muslims, the police personnel fired one round in air and
upon instructions another fire was made and 10 rounds
consequently was fired. It is, therefore submitted that
considering the evidence of police personnel the mob formed
unlawful assembly with deadly weapons with a common
object and intention and they cordoned the mosque,
however, they could not identify any of the assailants and it
is clear that the persons armed with deadly weapons,
formed unlawful assembly, robbed and damaged property.
23.1 It is further submitted that considering and
evaluating the evidence of witnesses PW-26 Exh-119-
Habibsha, he has given names of 3 accused (1) Dineshbhai
Manibhai, (2) Shambhubhai Rameshbhai (3) Bakabhai
Rameshbhai all were having dharia. This witness has
identified all the three accused before the court and further
deposed that one person named Vitthalbhai Dahyabhai
Patel, Dehlavala is not present before the court. In the cross
examination, this witnesses has admitted that earlier in his
3 police statements he has not given the names of these 3
witnesses. He has also not deposed the name of assailants
in his police statement. This witness has fairly admitted the
real truth and he has not suppressed anything. This
witness has given name of three accused persons, and there
is no reason to disbelieve the presence of three persons in
the unlawful assembly. This witness has not given name of
more persons even after long period and no persons are
wrongly identified.
23.2 Considering and evaluating the evidence of PW-
51 Exh-153 it is submitted that this witness has given name
of (1) Dineshbhai Manibhai Patel (2) Shambhubhai
Rameshbhai Patel (3) Atulkumar Kantibhai Patel (3)
Bakabhai Rameshbhai Patel and identified other persons by
seeing them. This witness has identified all the persons in
the court. While one person is identified by face whose
name was Kaushikbhai Mohanbhai. There is no discrepancy
in the deposition of this witness and looking to the cross-
examination no material has been brought on record to
disbelieve the deposition of this witness. The evidence of
this witness is reliable and believable, however, the learned
trial Judge has not properly appreciated the evidence of this
witness and wrongly disbelieved the evidence of this
witness.
23.3 Further, looking to the evidence of PW-79 Exh-
208, it is submitted that this witness has given names of (1)
Dineshbhai Manibhai (2) Shambhubhai Manibhai (3)
Madhavbhai Ramanbhai (4) Rakeshbhai Jashbhai (5)
Narayanbhai Dahyabhai (6) Bhaveshbhai Shashikant (7)
Prafulbhai Lallubhai (8) Samirbhai Indubhai (9) Munnabhai
Naginbhai (10) Munnabhai Jitubhai (11) Hiteshbhai
Arvindbhai (12) Kaushikbhai Khushalbhai (13) Kaushikbhai
Contractor of Gram Panchayat (14) Bhaveshbhai Bhalabhai,
who blazed Indica car and also committed offence of illegal
trespass, robbery of household items. This witness had
occurred a loss of Rs.7,00,000/-, however, the Police has
not recorded his statement. Further, this witness has
identified Madhavbhai Ramanbhai whose name is
Prakashbhai Ramanbhai, Vimalbhai Dahyabhai is identified
as Naranbhai Dahyabhai, and Bhaveshbhai Shashikant is
identified but his name is Bhaveshbhai Hasmukhbhai.
Further, Rameshbhai Naginbhai is identified as Munnabhai
Naginbhai, Amarbhai Jitubhai is identified as Munnabhai
Jitubhai, Hiteshbhai Ramanbhai is identified as Hiteshbhai
Arvindbhai, Kaushikbhai Contractor of Gram Panchayat is
identified and his name is Kaushikbhai Mohanbhai while all
others are identified correctly as per their names. This
witness had not falsely identified any person but he has
identified the accused by name. Naranbhai Dahyabhai is
identified as Vimalbhai Dahyabhai and that does not mean
that he has wrongly identified this accused. Further,
Bhaveshbhai is identified but his father's name was
Hasmukhbhai, Munnabhai is identified but his name was
Rameshbhai Naginbhai, so they may have pet names.
Munnabhai Jitubhai is also identified but his pet name is
Amarbhai Jitubhai. Hiteshbhai Arvindbhai is identified but
his name is Hiteshbhai Ramanbhai. It is further submitted
that no accused person is wrongly identified by this witness
and looking to the cross-examination, he has given true and
proper deposition and there is no reason to disbelieve his
evidence as he is residing in the same area. However, the
police has not recorded his statement at the earliest and it
cannot be said that his evidence is unreliable and not
credible. It is further submitted that this witness has also
not falsely involved any of the persons, who are not
identified by him even after lapse of period.
23.4 Next submission is that PW-80 Exh-209 has
identified and given names of (1) Dineshbhai Manibhai (2)
Shambhubhai Rameshbhai (3) Rameshbhai Shanabhai (4)
Ramanbhai Matthurbhai Gameschi (5) Nathubhai
Maganbhai (6) Hiteshbhai Ramanbhai (7) Tinabhai
Ramanbhai and (8) Ashokbhai Bhagvanbhai. This witness
has not identified Ramanbhai Mathurbhai Gamechi, as he
was not present in the court room, while Sanjaybhai
Ramanbhai is identified as Tinabhai Ramanbhai. In fact
there is nothing wrong, as the pet name of Sanjaybhai is
Tinabhai. All other accused are identified by this witness.
Further, looking to the cross-examination of this witness
there is nothing against his examination-in-chief. There is
no reason to disbelieve his evidence. This witness has also
stated that police has not asked anything to him. His
deposition is fully believable and reliable, however the
learned Sessions Judge has disbelieved his evidence and
acquitted the accused. The evidence of this witness cannot
be discarded on the ground that first time he has identified
this witness before the court and no identification parade is
held before the executive magistrate. This witness has
deposed that after 6 months he returned to his home and
even after lapse of this much period he has not falsely roped
any person in the offense and he has given true facts before
the court.
23.5 It is then submitted the evidence of PW-82 Exh-
211 is reliable and believable. This witness has given names
of (1) Dineshbhai (2) Shambhubhai (3) Atulbhai (4)
Rakeshbhai (5) Bhaveshbhai (6) Ramanbhai (7) Bhanubhai
(8) Naranbhai (9) Nathubhai (10) Melabhai and (11)
Kaushikbhai. He has also deposed that the accused persons
set ablaze Indica car and pelted stones. He left his house
under fear. He has identified Bhailalbhai Bhikhabhai as
Bhanubhai and Vimalbhai is identified as Naranbhai, as
this witness knew them by their pet names and all other
accused by their real names. Further, there is no
contradiction or exaggeration in the evidence of this witness
and looking to the cross examination of this witness there is
no material on record to disbelieve the evidence of this
witness and though the evidence of this witness is credible,
the learned trial Judge has not believed the same and
erroneously acquitted all the accused persons.
23.6 In so far as evidence of PW-78 Exh-202 is
concerned, it is submitted that the same is reliable,
trustworthy and acceptable. He has given full descriptions
of the incident. This witness has also deposed the incident
of burning Indica car. He has identified (1) Sarpanch
Dineshbhai Patel (2) Shambhubhai (3) Bakabhai (4) Thakor
Manda (5) Son of Manda (6) Chetan (7) Elder son of Thakor
Mana (8) Popatbhai (9) Sanjaybhai (10) Subhashbhai (11)
Madhubhai and (12) Ramanbhai Gameti. This witness has
identified Miteshbhai Ramanbhai as Bakabhai as his name
is Miteshbhai @ Bakabhai. He has identified son of Thakor
Manda and Chintanbhai Arvindbhai is identified as
Chethan. Popatbhai is identified as Ashokbhai. Prakashbhai
Ramanbhai is identified as Madhubhai and all others are
identified as per their names. This witness has identified 8
persons by their face and their names are given. The
statement of this witness is not recorded by the police. He
has not falsely identified any persons or roped any persons
falsely in the offence. However, the learned trial Court has
disbelieved the deposition of this witness on the ground that
there are many discrepancies.
23.7 It is also submitted that evidence of PW-83 Exh-
213 is most credible and believable and there is no reason
to disbelieve evidence of this witness. She has given true
and real deposition before the court. This witness has
identified (1) Dineshbhai Sarpanch (2) Miteshbhai (3)
Melabhai and (4) Bhalabhai and others are known by face.
She has identified all the accused persons correctly. There
is no discrepancy in the evidence of this witness and looking
to the cross-examination there is no contradiction and the
evidence of this witness cannot be discarded. The evidence
of this witness is highly reliable and credible. However the
learned trial Court has not believed the same. This witness
has not involved any innocent persons even after lapse of
time. The learned trial Court has not believed this witness
only because she has identified the accused persons in the
court room for the first time and this reason is not valid to
disbelieve the evidence of this witness. It is further
submitted that relying upon evidence of this witness the
accused can be convicted.
23.8 Further submission is that evidence of PW-84
Exh-214 is also reliable and credible and there is no reason
for not believing the same. This witness has given full
description of the incident. This witness has identified (1)
Bakabhai whose name is Miteshbhai Ramanbhai (2)
Shambhubhai (3) G.P. Bhai Ghanshyambhai owner of
Bharat Pulse Mills. (4) Kaushikbhai (5) Gaurangbhai and (6)
Bhurabhai. These persons were armed with weapons
(Trishul) and carboys of petrol. Bakabhai was armed with
revolver. Under fear they left their houses and from distance
he has seen that they burnt Indica car. There was a crowd
of approximately 100-150 persons. A person named
Chitubhai and Bharatbhai took away a bag, which was of
brother of this witness, in which there was Rs. 1,42,000/-
given by finance company. This witness has identified
Bakabhai, while Shambhubhai is identified but his name is
Sandipbhai Rameshbhai, Bhurabhai is identified while his
name is Bhaveshbhai Ramanbhai. Further, son of
Harmanbhai is identified and his name is Dhirubhai
Harmanbhai. Bhaveshbhai Hasmukhbhai is identified and
his name as Bhavo Bareli and all others are identified as per
their names. Even, there is no contradiction or exaggeration
in the cross-examination of this witness. The evidence of
this witness is trustworthy and reliable and there was no
reason to disbelieve evidence of this witness.
23.9 Learned counsel next submitted that evidence of
PW-85 Exh-215 is believable, acceptable and trustworthy.
This witness has given true facts before the Court. He has
deposed that Bakabhai got down from the car with revolver,
Shambhubhai Rameshbhai got down with Trishul,
Kaushikbhai, Gaurangbhai, Bhaveshbhai Rameshbhai, G.P.
Bharat Pulse Mills got down from the car. They were having
petrol carboy and they set car at fire. This witness has
identified Bakabhai whose name is Miteshbhai Ramanbhai,
Pinkalbhai Bhupendrabhai is identified whose name is
Kinjalbhai Bhupendrabhai, Bhaveshbhai Jeepwala is
identified whose name is Bhaveshbhai Hasmukhbhai and
all others are identified by their names. In the cross-
examination this witness has deposed that after 7 month of
the incident he has given statement before the Police and
prior to that no statement has been given before police or
court. This witness has also deposed that he was under fear
and in fear he left his house for Borsad village. It is
submitted that there is no reason to disbelieve the version of
this witness. However the learned trial Judge has wrongly
disbelieved the evidence of this witness.
23.10 Learned counsel Mr. Brahmbhatt submits that
looking to the provision of Section 114 of the Indian
Evidence Act regarding presumption against those who
gathered, formed unlawful assembly, armed with deadly
weapon, set ablaze a car and attacked on the house of
witnesses, the witnesses may not be able to give the
description of whole incident and may not depose the acts of
all the witnesses, but when the household items are robbed
and damaged, naturally presumption would be that the
persons who were present with deadly weapons in the
unlawful assembly had participated and attacked and
committed the offence.
23.11 Learned counsel for the appellants submitted
that looking to the evidence of above witnesses, the
prosecution has proved presence of accused persons and
the evidence of witnesses are believable and acceptable.
However, the learned trial Judge has wrongly disbelieved
the same and acquitted the accused persons. Considering
evidence of witnesses the judgment of trial court requires to
be reversed and the accused are required to be convicted
and sentenced appropriately.
24 Mr. Vijay Patel, learned counsel for all the
respondent accused except accused No.12 submitted that
PW26 - Habibsha Allaudin Diwan, Exh.119 has deposed
that a mob of 2000-4000 members, armed with different
weapons, had committed the offence and therefore, they had
apprehension that riots would take place and therefore, they
had gone to Vasad Police Station and they were sent to
Borsad in a Vasad Police Station vehicle. They stayed
outside the Village for 5 days and then, they returned and
found his house and shop demolished and he has identified
the following persons as the members of the mob, accused
No.10-Dineshbhai Manibhai accused No.11- Shambhubhai
Rameshbhai and accused No.38-Bakabhai Rameshbhai. He
also named one Vitthalbhai Dahyabhai who was not present
in the Court. The said witness has stated in Paragraph 3 of
his cross-examination that "I have not given names in my
earlier police statement. It is true that today itself, I have
stated the fact for the first time that 4 persons were
standing with scythes and I have not stated the same in my
earlier police statement."
24.1 In Paragraph 4 of the cross-examination, he has
further stated that "It is true that Dineshbhai Manibhai,
Shambhubhai Rameshbhai, Baka @ Nitesh Ramesh are
political leaders. It is true that I have given names of these
persons today for the first time in the Court because they
are political leaders. It is true that in all 3 of my earlier
police statements, I have dictated the fact that I do not
know the persons from the mob. It is true that mob
containing of 2000-4000 persons of which I stated also
included persons from nearby areas of Vasad in addition to
the persons of Vasad." It is, therefore, submitted that the
witness has, in clear terms, admitted that he has named the
aforesaid 3 respondents - accused for the first time in the
Court despite the fact that he knew them well because they
are political leaders. The witness has not given any
explanation as to why he did not name these respondents -
accused in his earlier 3 police statements. This fact creates
strong room of doubt about the correctness of his deposition
about the alleged presence of 3 persons in the mob coupled
with the fact that he has also stated that the mob included
persons from nearby areas of Vasad in addition to the
persons from Vasad.
24.2 Learned counsel Mr. Vijay Patel submitted that so
far as evidence of police witnesses, namely, PW-70, PW-71,
PW-72, PW-74, as stated herein above, they do not name
any of the respondents - accused because they do not
belong to the said Village and they were posted at Vasad on
01.03.2002 as per the deposition of PW-70 - Tirthraj
Balgovind Upadhyay, Exh.182 (Paragraph 1) and therefore,
they could not recognize any of the accused and therefore,
in the humble submission of the respondents-accused, the
said witnesses do not implicate any of the respondents-
accused and therefore, they are not useful to the
prosecution in any manner whatsoever.
24.3 Learned counsel Mr. Vijay Patel submitted that so
far as the evidence of PW-51 Sikandarsha Jivasha Diwan,
Exh.53 is concerned, he has deposed that on 01.03.2002,
leaders attacked them in form of a mob containing 2000-
3000 persons and therefore, they had gone to the Police
Station at around 02:00 O'clock in the afternoon and as per
the case of the prosecution, the offence took place at about
16:30 hrs. and the said witness along with others had also
sent to Borsad in a police van and the said witness returned
to Village Vasad after about 5 to 6 months. His house and
shop were ransacked and damaged. The said witness has
named the following accused in his deposition:-
Sr. Accused Name of the accused
No. No.
1 10 Dineshbhai Manibhai Patel
2 11 Shambhubhai Rameshbhai Patel
3 29 Atulkumar Kantibhai Patel
4 38 Bakabhai Rameshbhai Patel
24.4 He has further deposed that he has also seen so
many others, but he does not know names of all those
persons. He further stated in his deposition that he saw
some of the persons in the mob who were present in the
Court. He identified one person whose name is Kaushikbhai
Mohanbhai Patel. He has further deposed in his cross-
examination that he left for Borsad-cum-Vasad Police
Station at about 07:00 p.m. and he remained in Vasad
Police Station for 5 to 6 hours. He has also deposed that he
took his family to the Police Station from the backside
through the ravine. He has admitted in his cross-
examination at Paragraph 2 that he did not say anything
about the incident that they were attacked and have fled. He
has further deposed that he was interrogated by the police
after 6 months of the incident i.e. in the 8th month and he
had stated true facts to the police in his police statement.
He has further deposed that he has not stated in his police
statement that he does not know as to who caused damage
to his house, shop and mosque, etc. and that he does not
know any names also. He has further deposed that he grew
up in Vasad. He has also admitted the persons he named
who are the leaders of Vasad and respondent - accused
no.10 - Dineshbhai Manibhai is Sarpanch of the Village. He
has also admitted in his cross-examination at Paragraph 2
that "It is true that I have not dictated any fact in my police
statement that when we were attacked, we left the house
from the back door. It is true that I have not dictated name
of assailants in the police statement." He has further
deposed in Paragraph 3 of the cross-examination that "I
have not dictated any fact that I saw the persons to whom I
have identified today or the fact that I dictated about his
appearance in my police statement." The Court has noted
that per-se the witness stated that the police did not inquire
about it. It is, therefore, submitted that the witness himself
admits in his cross-examination at Paragraph 2 that he did
not name the persons in his police statement whose names
had been given by him in his deposition. This demolishes
his entire evidence because he was interrogated by the
police and he did not name any persons as assailants or
persons of the mob and the witness, for the first time, in the
Court named 3 persons who were leaders of the Village and
he identified one person as the member of the mob, but at
the same time, he admits in his cross-examination at
Paragraph 3 that he did not state about him in his police
statement or his appearance in the police statement.
24.5 It is further submitted that PW-78 Mehmud
Abdulrahim Mansuri was examined at Exh.202. He has
deposed in his evidence that he is the owner of Indica Car
bearing registration no. GJ-7 R-9705 and on the day of the
incident, the said car was set ablaze. He has deposed that
he stays with his family at Kumarva, Vasad and he was
engaged in the business of transport at that point of time.
On 01.03.2002, he had to gone to Vadodara refinery and he
returned at about 12:00 noon. He has deposed that he was
sitting at the 3rd floor of the house with his wife and children
and when they were about to have meal, he heard shouting
that "burn Indica loot them do whatever you can". He had
seen burning Indica Car and after 15 to 20 minutes, the
mob came towards his house. The mob entered the house
breaking lock and he has identified the following accused:-
Sr. Accused Names of the accused
No. No.
1 10 Dineshbhai Patel
2 11 Shambhubhai
3 38 Bakabhai
4 49 Thakor Manada
5 ? Chetan elder son of Thakor Mana
6 Popatbhai
7 48, 27 Sanjaybhai
8 53 Subhashbhai
9 12 Madhubhai
10 50 Ramanbhai Gamit
24.6 The learned Sessions Judge has made a note that
the witnesses replied after thinking a lot. He has further
deposed that there were 100-150 members in the mob. They
damaged house, they looted also. He has deposed that they
had hidden themselves in the bathroom and police arrived
after 15-20 minutes and everyone left after police arrived.
He has, in term, stated that "Everyone had left after the
police had arrived. Thereafter, we went out of the house and
saw the situation around." He further deposed that "all of
us went out and felt that it was not advisable to stay there.
Hence, we reached Borsad road through railway crossing by
walking. We stopped a tempo there and requested them and
left for Borsad in that tempo.
24.7 Learned counsel Mr. Vijay Patel submitted that
the learned Sessions Judge has made a note that he
identified Bakabhai by name who is Miteshbhai Ramanbhai
- accused No.38 and the witness identified Chetan as a son
of Thakor Manada is Chetan Arvindbhai - accused No.51
and the person who is identified as Popatbhai is Ashokbhai
- accused No.46. The person who is identified as
Madhubhai is Prakashbhai-accused No.12 and the person
who is identified as Sarpanch-Dineshbhai Patel - accused
No.10, Shambhubhai Patel-accused No.11, Thakor Manada
- accused No.49, Sanjaybhai - accused No.48,
Subhashbhai-accused No.53 and Ramanbhai-accused
No.50. Accused further stated that he could identify some
accused by face, but not by name and thereafter, he
identified the following accused:-
Sr. Accused Names
No. No.
1 41 Gaurangkumar Arjunbhai
2 37 Melabhai Shankarbhai
3 18 Samirkumar Ishvarbhai
4 29 Atulbhai Kantibhai
5 22 Kaushikbhai Manubhai
6 23 Kaushikbhai Khushaldas
7 40 Bhaveshbhai Rameshbhai
8 50 Bhaveshkumar Hasmukhbhai
24.8 He further deposed in his cross-examination at
Paragraph 3 that "It is true that I have stated in my
statement recorded before the police that first of all, they
had burnt my Indica Car and I was hidden in the toilet due
to fear. In the deposition at present, I stated that I reached
the terrace when they arrived to burn Indica Car. Out of
these two, it is true that I went to terrace. Now, I state that
it is true that I was hidden in bathroom and toilet and I was
there when Indica burnt down. It is not true that in my
police statement recorded before the police, I have not
stated that I went to terrace along with my wife and children
when the mob arrived to burn Indica Car." The Court has
recorded that the witness voluntarily stated that he had
dictated, but police could not record it. Similarly, there are
many other improvements of the witness before the Court
for which he had given the explanation that he had stated to
the police but the police did not record it. This is also the
same as to names of the accused also. It is the humble
submission on behalf of the respondents that at not more
than 6 times, he has stated that he is stated it to the police
but the police did not record it. It is submitted that the
witness is a businessman, he is having business of
transport of 3 tankers and he has improved his version
before the Court suitably to ensure that leaders of the
Village are implicated in the offence. It is submitted that in
his cross-examination, he has deposed that "I have not
stated the names of Madhubhai, Popatbhai, elder son of
Thakorbhai and others. I had dictated the names but the
police did not record it. This is the quality of the evidence
which has come before the Court for examining the
truthfulness of the deposition of the witness. It is further
stated by the said witness in Paragraph 6 of the deposition
that "It is true that in the complaint of private firing
registered vide CR no. I-57/02, Vasad Police Station, the
police had recorded my statement as accused. It is not true
that I have not stated in the police interrogation that I was
at Vasad the entire day on 01.03.2002. I had stated that I
was not at Vasad after 01:00 p.m. on that day. It is true
that I had informed the police that I had left on 27.02.2002
and returned after 15 days." It is, therefore, submitted that
the witness has admitted that he had left Vasad at about
01:00 p.m. on 01.03.2002 and in the same Paragraph, he
deposed that he had informed the police that he had left
Vasad on 27.02.2002 and returned after 15 days. It is,
therefore, submitted that there is a strong room of doubt as
to his presence on the day of the incident.
24.9 He has further deposed in Paragraph 7 of the
deposition that "I did not try to give information at Borsad
Police Station regarding the incident till my statement was
recorded before the police." He has also deposed in
Paragraph 7 of his deposition that it is not true that my
Varanda was broken down while making RCC road of Vasad
Panchayat. This is the case of the respondents of course the
witness has denied that this is the reason as to why he has
implicated leaders of the Village in the offence including the
Sarpanch - Dineshbhai Manibhai - accused no.10. It is
further deposed by him in the same Paragraph 7 that "It is
true that when my statement was recorded before the
police, I had stated that "the situation was tensed at Vasad
so we could not go to Vasad Police Station. Other relatives
Sattarbhai Adambhai residing in the same locality has filed
complaints in the Court and police." It is not true that I was
not present at Vasad at the time of incident. It is not true
that I dictated their names because they were leaders of the
Village and people of Patel community." It is, therefore,
submitted that the learned Sessions Judge has recorded
that the witnesses replied after thinking a lot and he has
deposed before the Court for not less than 8 to 10 times
that he stated to the police but police did not record the fact
and further that, in another case, he has admitted that he
had informed the police that he left on 27.02.2002 and
returned after 15 days. This shows the falsehood of the
evidence of the witness and therefore, entire evidence is not
believable. The witness was not in Vasad at the time of
incident as admitted by him and therefore, he has falsely
implicated and therefore, his testimony is not reliable.
24.10 Learned counsel Mr. Vijay Patel submitted
that so far as deposition of PW79 - Sattar Adam Vora,
Exh.208 is concerned, he has deposed that incident took
place at 01.03.2002 at about 12:30 hrs., whereas, the
complainant PW74 - Harisinh Noparam Jat, Exh.195 says
that the incident took place at 04:30 p.m. The witness
further deposed that when he was at his home with his
family members, 10 to 15 people came in that point of time.
He has named following persons:-
Sr. Accused Names
No. No.
1 10 Dineshbhai Manibhai
2 11 Shambhubhai Rameshbhai
3 12 Madhubhai Ramanbhai
4 13 Rakeshbhai Jasbhai
5 14 Narayanbhai Dahyabhai
6 15 Bhaveshbhai Shashikantbhai
7 16 Prafulbhai Lallubhai
8 18 Samirbhai Indubhai
9 19 Munnabhai Naginbhai
10 17 Munnabhai Jitubhai
11 ? Hiteshbhai Arvindbhai
12 23 Kaushikbhai Khushalbhai
13 22 ? Kaushikbhai contractor of Gram
Panchayat
14 ? Bhaveshbhai Bhalabhai
24.11 He has deposed that these people set ablaze the
car of Maheboobbhai. They also did robbery of his house. It
is stated that therefore, they came out to the back door and
left for Borsad from there. He has deposed that I had not
gone to the Police Station to give statement and his
statement was not recorded even on 01.07.2002. The Court
has made note that the witness identified a person as
Madhubhai Ramanbhai who disclosed his name to be
Prakashbhai Ramanbhai. Similarly, the witness identified
person as Naranbhai Dahyabhai who disclosed his name to
be Vimalbhai Dahyabhai. similarly, the witness identified a
person as Bhaveshbhai Shashikantbhai. The accused
disclosed his name to be Bhaveshbhai Hasmukhbhai.
Similarly, the witness identified a person as Munabhai
Naginbhai, the accused disclosed his name as Rameshbhai
Naginbhai. Similarly, the witness identified a person
Munnabhai Naginbhai, the accused disclosed his name as
Amarbhai Jitubhai. Similarly, the witness identified a
person Hiteshbhai Arvindbhai, the accused disclosed his
name to be Hiteshbhai Arvindbhai. Similarly, the witness
identified a person Kaushikbhai Gram Panchayat of
Contractor, the accused disclosed his name to be
Kaushikbhai Mohanbhai. It is further deposed in Paragraph
3 of the deposition that "I have not given names of the
people to police earlier at any time whose names I submitted
today, but I have submitted names in complaint which I
gave in the Court at Anand. He has further deposed in
Paragraph 4 of the deposition that "It is true that when the
mob came, we all felt fear and left through back side door
along with the family. Therefore, I could not see as to who
came from Machhiwad and Kumbharwad." The witness has
further deposed in Paragraph 5 that "I had not gone to
Borsad Police Station." Now I state that "I have not given
any complaint in the Court. But I have given complaint in
the Police Chowky located opposite Old Railway Station."
The witness has admitted that he was interrogated by the
police on 26.06.2002, 01.07.2002 and 03.07.2002. The
witness has also deposed in Paragraph 5 of his deposition in
last portion that "It is true that I have given not given names
of any persons before the police or officer at any time after
incident before 01.07.2002. It is, therefore, mostly humbly
submitted that the witness did not disclose the names of
any of the accused during his police statement on
26.06.2002, and thereafter, he improved the story in his
further police statement and he has not given any reasons
as to why that he did not disclose names of the accused
persons at the first opportunity available to him before the
police and therefore, he has improved his story and falsely
implicated the accused persons subsequently and even
though he is permanent resident of Village Vasad, he had
identified wrong persons in the Court.
24.12 Learned counsel Mr. Vijay Patel submitted
that so far as deposition of PW-80 Adambhai Shabaibhai,
Exh.209 is concerned, he has deposed that the mob had
come and first set his nephew's car ablaze, etc. He had not
given the date and time of the incident. He has further
deposed that he has come out front door of his house along
with the family passing through the ravine and went to
Borsad and thereafter, he returned after six months. He has
named following persons:-
Sr. Accused Names of the accused
No. No.
1 10 Dineshbhai Manibhai
2 11 Shambhubhai Rameshbhai
3 24 Rameshbhai Shanabhai
4 50 Ramanbhai Mathurbhai Gamechi
5 25 Natubhai Maganbhai
6 26 Hiteshbhai Ramanbhai
7 ? Tinabhai Ramanbhai
8 28 Ashokbhai Bhagwanbhai
24.13 It is noted by the learned Sessions Judge that on
being asked to identify, Ramanbhai Mathurbhai Gamechi,
the witness is not able to identify any of the accused. The
witness has identified Tinabhai Ramanbhai. He disclosed
his name to be Sanjaybhai Ramanbhai. The witness has
further deposed in cross-examination that "It is true that
today, I am stating the facts relating to incident before the
Court for the first time." It is, therefore, submitted that the
witness disclosed this information in the Court for the first
time as admitted by him. Despite the fact that he had ample
opportunity of disclosing these facts to police during various
occasions including when his police statement was
recorded. He has further deposed in his deposition that "the
person whom I identified belongs to Vasad Village and they
have been residing since years. The mob came moving from
four directions and fled as police came. I did not talk with
police. I have not given information at Borsad Police Station
too." It is, therefore, submitted that the witness has not
disclosed the name of the accused given in the deposition at
any point of time before any police officer and therefore, his
evidence is not reliable and trustworthy.
24.14 Learned counsel Mr. Vijay Patel submitted that so
far as deposition of PW82-Salim Adam, Exh.211 is
concerned, he has deposed that the incident occurred at
01.03.2020 at about 12:30 in the morning. The mob was of
about 200 people. he has named the following persons:-
Sr. Accused Names of the accused
No. No.
1 10 Dineshbhai
2 11 Shambhubhai
3 29 Atulbhai
4 32 Rakeshbhai
5 40 Bhaveshbhai
6 50 Ramanbhai
7 30 Bhanubhai
8 ? Naranbhai
9 25 Natubhai
10 ? Melabhai
11 22, 23 Kaushikbhai
24.15 He has deposed that he had seen the incident of
setting ablaze Indica Car. The accused started pelting stone.
He has further deposed that on feeling fear, they went out
from the back door with his family members. He has further
deposed that he had gone to Anand for lodging a case after
15 days. However, the witness has not produced anything
on record that he has filed complaint at Anand. The Court
has noted that the witness identified a person as
Bhanubhai. The accused disclosed his name to be
Bhailalbhai Bhikhabhai. The witness who identified person
as Narayanbhai, the accused disclosed his name to be
Vimalbhai. He is further deposed in Paragraph 3 of his
deposition that his brother Sattrabhai Adambhai got a
complaint registered at Anand. The police recorded his
statements on 26.06.2002, 01.07.2002, 03.07.2002 and
04.07.2002. He has deposed that "It is not true that the said
complaint was given in Anand Court after contacting an
advocate.", which is contradictory to the deposition of his
brother - Sattarbhai. He further deposed in Paragraph 4 of
his deposition that the police arrived at the time of the
incident. He left after the police came. I did not say anything
to the police." It is, therefore, submitted that the witness did
not disclose anything about the incident at the earliest
opportunity available to him and thereafter, after about 4
months, he has implicated some of the respondents -
accused and identified the accused because he is from the
local small Village. The witness has deposed in last portion
of Paragraph 4 of his deposition that "It is true that that I
have not dictated such facts to the police that too the
person whom I identified by 04.07.2002 were setting Indica
Car ablaze are the part of the mob." It is, therefore,
submitted that the witness has implicated the respondents
- accused at subsequently and he has given detailed
accounts of the role of the accused in his deposition,
whereas, he did not state anything before the police in his
police statement as to role played by the particular accused.
24.16 Learned counsel Mr. Vijay Patel submitted that so
far as deposition of PW83 - Samimben Salim Vora, Exh.213
is concerned, she has deposed in the Court that the incident
took place at half past 12 on 01.03.2002, whereas the
deposition of the complainant, PW74 - Harisinh Noparam
Jat, Exh.195, the incident occurred at 04:30 p.m. and thus,
there is a basic infirmity and contradictions so far as the
time of the incident. It appears that all the witnesses have
brought backward the time of the incident so as to claim
their presence at the time of the incident with a view to
falsely implicate the accused persons. She has deposed that
she saw about 100-150 persons who set ablaze the Indica
Car and she named following persons:-
Sr. Accused Names
No. No.
1 10 Dineshbhai - Sarpanch
2 38 Miteshbhai
3 37 Melabhai
4 30 Bhalabhai
24.17 She further deposed that she knew all other
persons by face and not by name. She further deposed that
she left through back door and went to Borsad via Vasad
Railway Track and Borsad Road. She has further deposed in
her cross-examination at Paragraph 3 that she stated the
same details to the police when asked her which she
deposed in the Court but however, the Court has recorded
that the witness voluntarily stated that she dictated it but
police did not record it. She has deposed that she was
present in her house with her husband and parents-in-law
and they all left together. She has deposed in Paragraph 4 of
her cross-examination that she knew all the persons in the
mob because they were from Vasad and she lived in Vasad
for many years. She has further deposed that police
recorded statements of all of her family members along with
her police recorded statement separately. She has deposed
in Paragraph 4 that "I came to know that riot has taken
place in the Village before 12:00 O'Clock." It is, therefore,
submitted that she even did not know when the incident
took place. It appears that she has derived some
information about the incident from some other person. She
has deposed that "I have not stated any facts to any police
officer or before any Court prior to 04.07.2002 after the
incident took place." It is, therefore, most humbly and
respectfully submitted that the witness remained silent for
about 4 months after the incident took place and thereafter,
she has implicated some of the persons in her statement
and therefore, she did not give name of the accused at the
earliest point of time and therefore also, her deposition is
not reliable and is required to be rejected.
24.18 Learned counsel Mr. Vijay Patel next submitted
that so far as deposition of PW84 - Anwarbhai Yusufbhai
Vora, Exh.214 is concerned, he has deposed that he stayed
with his family at Vasad and was having a business of
Garage and vehicle broker. He has also deposed in his
deposition that the incident took place at about 10:00 to
11:00 O'Clock on 01.03.2002. He has deposed that "the
incident took place on 01.03.2002 Friday at around 10:00
to 11:00 O'clock, as there was chaos in the Village, we went
out to see. When the chaos started, I was at my home.
Therefore, we left for Borsad with my wife, my father,
mother and son. As chaos, uproar and riots started, we left
from there. Thereafter, we returned on the night of that day.
I and my brother Ismail returned. We came at my Garage at
Vasad. My Garage was situated at Vasad cross roads.
However, our vehicles were lying near Garage which we
shifted behind the Garage and came home and suddenly,
shout was heard "kill-slaught". As they were such shouts,
we climb at our house. We saw from there that Bakabhai,
Shambhubhai, G.P. bhai, Ghanshyambhai, owner of Bharat
Pulse Mill, Kaushikbhai, Gaurangbhai, Bhurabhai were
there..." It is, therefore, submitted that the witness states
that the incident took place at about 10:00 to 11:00 in
morning and they left for Borsad with all family members
and then, he and his brother returned at night and he had
seen the incident and implicated the accused. It is,
therefore, submitted that the witness talk about the incident
of night hours which is not the case of the prosecution and
therefore, the entire evidence is not useful to the
prosecution. It is further submitted that the said witness
has given names of so many persons, but it is of no benefit
to the prosecution and therefore, I do not burden my
submission by giving names of all accused in my written
brief.
24.19 The witness has deposed in Paragraph 3 of the
deposition that he had given complaint at Anand and the
said complaint was prepared through an advocate and filed
in the Anand Court. He has also stated that Vasad police
did not record his statement before he gave his complaint.
He has further deposed in Paragraph 5 of his deposition
that "at the time of incident took place at 11:00 o'clock in
the night as stated by me I was hidden at the shelf of first
floor of my house. The mob arrived in Varanda of my house.
We escaped from back side of my house. This shows that
this is not the case of the prosecution that the incident took
place at night and therefore, his entire evidence is not going
to any benefit to the prosecution and therefore, here further
evidence of the said evidence is not discussed in detail.
24.20 Learned counsel Mr. Vijay Patel then submitted
that so far as evidence of PW-85 Ismailbhai Yusufbhai Vora,
Exh.215 is concerned, he has deposed that he was present
at his house on the day of the incident on 01.03.2002. He
has deposed that his parents, brother - Anwarbhai, his wife
- Vahidaben, came to his house at about 01:00 p.m. and
told that situation in Vasad was not good and therefore,
they locked the house. That, he and his brother went to see
his house in Vasad at about 09:30 p.m. and he had seen
the mob came there near his house at about 11:00 O'Clock.
The witness has given the names of the accused. Their
names are not discussed because the case of the
prosecution is that the incident took place at 04:30 p.m.
whereas this witness deposed about the incident of 11:00
O'clock in night and therefore, no such charge is framed
against the accused and therefore, entire evidence including
the naming the accused persons is of no consequence so far
as the case of the prosecution is concerned.
24.21 Mr. Vijay Patel, learned counsel submitted that
the following points are required to be considered:-
[i] The witnesses have not disclosed names of the
accused to the police.
[ii] Some of the witnesses have identified the accused
by face, but no T.I. Parade is held by the Investigating
Officer.
[iii] At the earliest opportunity available to them,
some of the accused have given the different time of
the incident i.e. 11:30 p.m.
[iv] There are contradictions in terms of
improvements with respect to witnesses in the
evidence and the detailed role of the accused.
[v] No complaint filed in the Court about the incident
brought on record by the witnesses.
[vi] One witness says that he filed the complaint in
the Court through the advocate and another witness
states that no assistant of advocate was taken.
[vii] One of the witness deposed that the members of
the mob were also from other Villages.
[viii] It is the most humble submission on behalf of
the accused that the prosecution has not proved the
case beyond reasonable doubt and the respondents -
accused are residents of Village and they were known
to each other and even the accused who were from
other Village, the witnesses have named them
subsequently at the later stage after about 4 months to
police which raises strong doubt about the
truthfulness of the evidence of the witnesses. Hence,
the judgment of the learned Trial Court which is not
otherwise required to be disturbed in the case of
acquittal. There are two views possible so far as the
incident and involvement to accused is concerned and
therefore, the judgment of the learned Trial Court is
not required to be disturbed.
25 The submissions as advanced by learned
counsels for the parties are based upon the testimonies of
each of the witnesses referred to above. We have examined
and gone through the statements and we find that the
factual submissions advanced regarding contents of the
statements of each of the witnesses referred to above are
borne out from the record and there is nothing which can be
said to be contrary to the record.
25.1 The reference made by Mr. Brahmbhatt, learned
counsel for the complainant side, is mainly with regard to
examination-in-chief of the witnesses. If the testimonies
given in the examination-in-chief are accepted as they are
recorded, then apparently in every case where the
prosecution witnesses support the prosecution case,
conviction will have to be recorded treating the said
examination-in-chief to be wholly true. The opportunity of
cross-examination is given to test as to whether the witness
is speaking the truth or not and it is only after considering
the contents of the cross-examination that the reliability,
credibility and truthfulness of the witnesses is determined.
Accordingly what is stated in examination-in-chief is
decided as to whether it is worth accepting or not and that
too either as a whole or in part.
25.2 Cross-examination is an integral and essential
part in a criminal case. The ultimate quest in any judicial
determination is to arrive at the truth, which is not possible
unless the deposition of witnesses goes through the fire of cross-
examination. In a criminal case, using a statement of a witness
at the trial, without affording to the accused an opportunity to
cross-examine, is tantamount to condemning him unheard. Life
and liberty of an individual recognised as the most valuable
rights cannot be jeopardised leave alone taken away without
conceding to the accused the right to question those deposing
against him from the witness box, Sunil Mehta vs. State of
Gujarat, (2013) 9 SCC 209: (2013) 3 SCC (Cri) 881.
25.3 The Constitution Bench of Supreme Court in the
case of Kartar Singh vs. State of Punjab reported in
(1994) 3 SCC 569, vide paragraph 278 very succinctly
explained the purpose of cross-examination of a witness,
which is reproduced hereunder :
"278. Section 137 of the Evidence Act defines what cross-
examination means and Sections 139 and 145 speak of the
mode of cross-examination with reference to the documents
as well as oral evidence. It is the jurisprudence of law
that cross-examination is an acid-test of the
truthfulness of the statement made by a witness on
oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness
of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's
client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by
impeaching the credit of the said witness;
and the questions to be addressed in the course of
cross-examination are to test his veracity; to discover
who he is and what is his position in life; and to shake
his credit by injuring his character."
On the above principles if we test the evidence of all
the wittinesses of fact alleging themselves to be eye-
witnesses what they have been able to prove is that the
incident took place but they have not been able to prove
beyond reasonable doubt that any of the accused was
present.
26 In the present case, what we find is that the
reference to the portions of the cross-examination made by
Mr. Patel, learned counsel for the accused, are borne out
from the record and if that is taken to be correct, then the
credibility and reliability of all these witnesses appears
doubtful. The reasons for the same are given hereunder:
[1] None of the witnesses lodged any complaint or
report at any stage either with the police or with the
Magistrate. No explanation has been given for the
same. It is not the case of any of these witnesses that
they made an attempt to lodge FIR or that they
approached the senior police officers or approached
the Magistrate with their complaint.
[2] These witnesses have taken few names in their
examination-in-chief. 3 to 4 names are common to all
the witnesses, whereas a couple of them have taken
some additional names. Interestingly, in their
statements to the police which were recorded on more
than one occasion, none of these witnesses took the
names of any of these accused and it is only during the
trial that in the examination-in-chief they have taken
these names. Not one name was taken by these
witnesses during investigation.
[3] The submissions of Mr. Brahmbhatt that these
witnesses were honest and truthful as they admitted
that they had never taken these names while giving
their statements before the police and as such it
should be taken that they are truthful and it is not a
case of false implication. Therefore, he submits that
their statements of identifying these witnesses during
the trial and taking their names should be accepted
and accordingly conviction should be recorded.
[4] Mr. Brahmbhatt forgets that such truthfulness
may have a flip side also. It is not the case of any of
these witnesses that they had taken these names
before the police, but the police did not record or
incorporate their statements correctly during the
investigation. Further, the names of 3 to 4 persons are
common to most of the witnesses who are politically
and financially influential persons of the village. No
explanation has been given for not taking their names
earlier.
[5] The submission of Mr. Patel is that deliberately at
such a late stage during the trial the names of
politically and financially influential persons of the
village have been taken for the first time only for
malafide reasons to implicate them falsely. The trial
Judge has rightly extended benefit of doubt to the
accused while recording acquittal.
[6] One more reason for not placing reliance of any of
these witnesses is that they have not been able to
correctly identify the accused during the trial before
the Court. X has been identified as Y, Y has been
identified as Z and Z has been identified as X. All these
inconsistencies, inaccuracies, discrepancies and
improvements as pointed out by Mr. Patel and as
borne out from the records has substance and creates
a doubt regarding the credibility and reliability of the
so-called eye witnesses in proving the presence of any
of the accused at the time of the incident. The said
inconsistencies, inaccuracies and the contradictions
have been noticed by the learned trial Judge also. We
thus do not find any fault with the judgment of the
trial Court recording acquittal.
27 Therefore, for all the reasons recorded above, the
appeals lack merit and are accordingly dismissed.
Consequently, the connected Criminal Misc. Applications
stand disposed of.
(VIKRAM NATH, CJ)
(ASHUTOSH J. SHASTRI, J)
GAURAV J THAKER / P. SUBRAHMANYAM
