Gujarat High Court
State Of Gujarat vs Nizamuddin Chhotumiya Kaji on 19 August, 2023
Bench: Umesh A. Trivedi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 130 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
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STATE OF GUJARAT
Versus
NIZAMUDDIN CHHOTUMIYA KAJI & 11 other(s)
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Appearance:
MS. MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 11,4
MR. B.S.PATEL, SR. ADVOCATE Assisted by
MR CHIRAG B PATEL(3679) for the Opponent(s)/Respondent(s) No.
1,10,12,2,3,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 19/08/2023
Page 1 of 57
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
[1] This is an appeal filed by the State of Gujarat, under
Section 378 of the Code of Criminal Procedure, 1973 (for short "the
Code"), challenging the judgment and order of acquittal recorded by
the learned Additional Sessions Judge, Vadodara dated 10.10.1994 in
Sessions Case No.151 of 1994, whereby respondents - accused have
come to be acquitted of the charge levelled against them.
[2] During the course of trial, accused No.9 - Akhtar Akbar
Khokhar, since died, more particularly before charge came to be
framed, case against him was ordered to be abated. Two more
accused, during the pendency of this appeal, have also died, vide
order dated 10.06.2019, appeal qua respondent No.11 i.e. Kamalludin
Ibrahim Kaji was ordered to be abated. Again, as recorded in an order
dated 23.06.2022, since accused No.4 i.e. respondent No.4 herein has
also died, appeal qua him was also ordered to be abated.
[3] In view thereof, this appeal is now required to be
considered against accused Nos.1 to 3, 5 to 8, 10 & 12 herein.
[4] As per the case of the prosecution, on 06.12.1992, Babri
Masjid was demolished and pursuant thereto, leaders of one political
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party came to be arrested. There was a call of "Bharat Bandh" given
by that political party on 09.12.1992. The political party at Village -
Sinor had also determined to observe the call of "Bharat Bandh". It
had come to the notice of the party workers that some schools in
Sinor Village were working, therefore, Secretary of that political party
at Village level Mr. Kiritkumar Shah - deceased, Kanubhai,
Maheshkumar, Bharat Raj, Hemendra, Nilesh Harsih Raj, went to
Gujarati Kumarshala to get it closed. According to the case of the
prosecution, there were about 20 to 25 workers of concerned political
party, who went to that school. At that time, mob of 100 to 150
people reached there armed with deadly weapons like stick, pipe,
knife, chhara (big knife), scissor etc., from Jakatnaka Gate at Sinor. As
per the case of the prosecution, mob included Nizamuddin
Chhotumiya Kaji - A1 , Salim @ Sallu Malang Kaji - A2, Kadar Sattar
Memon -A3, Anwar Akbar Khokhar -A4, and Latif Suleman Memon -A5,
as coming out from the FIR. As the case pleaded by the prosecution,
the members of the mob caught hold of Kiritbhai Shah and Anwar
Akbar Khokhar -A4 gave three to four blows of big knife on the lumber
region of deceased - Kiritbhai and Salim @ Sallu Malang Kaji -A2 also
gave two blows of knife on the right leg of Kiritbhai - deceased and
Kadar Sattar Memon -A3 is said to have given two blows of pipe on
the head of Kiritbhai, because of which, he fell down. At that time,
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Police arrived and one of the Police man open fired in air from his rifle
and the mob dispersed. Kiritbhai was taken to the Government
Hospital, which is situated just opposite to the said school but during
the treatment he succumbed to the injuries.
[4.1] It is further the case of the prosecution that Shri K.J.Soni,
the then Police Sub Inspector, Sinor Police Station, who was on
patrolling duty at Village - Sadhli, was informed by wireless to return
to Sinor, therefore, he returned to Sinor and came to know about the
disturbance as well as murder of Kiritbhai Shah. Then, he recorded
the complaint of one Gopal Shah and sent the same to the Police
Station for registration of an offence. He then took over the
investigation, carried out inquest panchnama and dead body was sent
to the Medical Officer through Police Constable - Amanullahkhan for
the purpose of postmortem.
[4.2] On carrying out the investigation and on conclusion of it,
charge-sheet came to be filed against the aforesaid accused. On case
being committed to the Court of Sessions, it was entrusted to the
learned Additional Sessions Judge for the purpose of trial. Charge
came to be framed against all the accused except accused No.9 -
Akhtar Akbar Khokhar as he died prior to framing of charge, vide
Exhibit - 23 on 25.07.1994. Since accused pleaded not guilty to the
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charge, trial against the accused is conducted by the learned Judge.
To prove the charge against the accused, prosecution examined in all
17 witnesses, produced and proved approximately 19 documents.
[4.3] On appreciation of the evidence led before it, hearing the
prosecution as also the learned advocate for the accused, learned
Judge has acquitted all the accused of the charges levelled against
them, giving benefit of doubt.
[5] Ms. Monali Bhatt, learned Additional Public Prosecutor
assailing the judgment and order of acquittal recorded by the learned
Judge took us to the entire evidence recorded by the Court as also the
documents, which were produced and proved. According to her
submission, the prosecution had proved the guilt of the accused
beyond reasonable doubt. She submitted that the learned Judge has
failed to consider the evidence adduced by the prosecution in its true
perspective.
[5.1] Taking us to the evidence of (PW-1) - Gopalbhai Shah,
who is first informant and eye witness to the incident, Ms. Bhatt,
vehemently submitted that there is no reason to disbelieve the said
witness as he is also an injured eye witness. She has submitted that
within no time of occurrence, First Information Report has come to be
filed, and therefore, there is no scope of false implication of any of the
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accused. Taking us to the findings recorded by the learned Judge, in
para - 30, she has submitted that condemning the eye witnesses, in
all 6 in number, out of which two are injured eye witnesses, the
learned Judge has stated that they have given examination-in-chief,
like verbatim reproduction of all facts as if all of them are playing a
record, is in consonance with what was witnessed by them, they have
deposed to before the Court.
[5.2] She has further submitted that for discarding the
deposition of first informant (PW-1) - Gopalbhai, learned Judge has
criticized him on the ground that when FIR was given, mob of 100 to
150 persons of a particular community was shown, armed with
different weapons coming from Jakatnaka Gate, whereas while
deposing before the Court, number of persons in the mob reduced to
10 to 12 persons only. Therefore, she has submitted that it may
happen that mob comprising of more persons come to a spot and only
persons, who are known and identified by the witness, may be stated
before the Court but by that it cannot be said that the prosecution has
pleaded a false case. Even witness may not be knowing all the
persons present in the mob. Therefore, while deposing before the
Court, they may reduce to the persons, who were identified by name,
who have assaulted the deceased. She has further submitted that he
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named five accused in his deposition before the Court with different
weapons who assaulted the deceased but if their involvement into the
offence is disclosed by other eye witnesses by name, their arrest into
the offence cannot be doubted by the learned Judge. As such, the
witness has, according to the submission of learned APP, given very
natural version on seeing the attack by the mob and the witness ran
away but seeing Police coming there and firing two shots, he
mustered courage to come back to the spot. While attempting to
rescue the deceased, he was also given kick and fist blow according
to the witness. Reasons assigned by the learned Judge, according to
submission of learned APP, to discard the testimony of this injured eye
witness (PW-1) - Gopalbhai, are such that no person of a normal
prudence would discard the evidence of injured eye witness. As such,
according to the submission of learned APP, his presence at the time
of incident cannot be doubted. If witness has not behaved in a
manner, which is expected by the learned Judge, cannot be a ground
to discard his testimony. Different witnesses may react in a different
manner on witnessing the occurrence, that too, of murder.
[5.3] It is further submitted that discrepancy about recording of
FIR at the Police Station, as asserted by the witness, or at the
Hospital, as asserted by the Investigating Officer, cannot be given
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much importance as there is no variation so as to material aspect in
the FIR whether it is recorded in the Hospital or at the Police Station. If
the person who recorded the FIR asserts that he recorded the same in
the Hospital, it is also not supported by any contemporaneous record
and therefore, it cannot be made a major ground if Police Officer
asserts that it has been recorded in the Hospital. It is submitted that
the learned Judge has given undue importance to the answers given
by the witness to the questions put in cross-examination that "he
does not know". However, drawing attention of the Court to the
evidence of the eye witness, she pointed out that the facts, which are
not known to him, he may state before the Court that he does not
know. But at nowhere in the cross-examination, witness has, in
respect of assault to the deceased by different accused with different
weapons, stated that he "does not know".
[5.4] The very fact that deceased - Kiritbhai was working in
which shift in the school, if witness does not know exactly, he can
plead so. However, according to submission of learned APP, it cannot
be given much importance so as to discard the evidence led before
the Court by him and corroborated by other 5 eye witnesses. Drawing
attention of the Court to para-37 of the impugned judgment, 25 issues
to which witness has answered that "he does not know", are not of
much importance so as to go to the root of the case to discard the
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whole testimony of the witness. She has further submitted that the
testimony of the first informant (PW-1) - Gopalbhai is discarded on the
ground that after giving the whole account in the examination-in-chief
of occurrence, the witness thereafter pleaded that he does not know
anything else about surrounding happenings, is the incorrect
conclusion recorded by the learned Judge and on that ground, his
testimony could not have been rejected by the learned Judge. She has
further submitted on the ground that when deceased taken to the
hospital, despite presence of Police and other witnesses, eye witness
has wrongly claimed that he was alone in the hospital. However,
according to submission of learned APP, witness took treatment in the
hospital on the next day of incident at about 12:30 p.m. and
therefore, where the dead body of Kiritbhai lying, naturally he would
not know at that time as he was never in the hospital on that day.
Therefore, doubting the credibility of the injured first informant,
rejecting his testimony as a witness of truth, according to learned
APP, the learned Judge has committed grave error, and therefore, the
order of acquittal passed by the learned Judge is required to be
interfered with.
[5.5] She has further submitted that undue importance is given
to FIR reaching late to the learned Magistrate. Though offence came
to be registered on 09.12.1992, as endorsed on the FIR, it has
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reached to the concerned Magistrate on 17.12.1992. Therefore,
drawing attention of the Court to the deposition of the Investigating
Officer and the date of arrest of different accused as well as date of
statement recorded of the eye witnesses, it is submitted that the
names of other accused except named by complainant, were revealed
on that very day by other witnesses and in all 6 of them came to be
arrested on 10.12.1992 and further few accused were arrested prior
to FIR reaching to the Magistrate based on their names revealed
during the course of investigation. Despite that, there are no addition
of the accused in the FIR by name, which is suggestive of the fact that
late reaching of the FIR has not caused any improvement in the
prosecution's case or caused prejudice to the accused. Therefore,
according to her submission, no undue importance should be given to
such circumstance discarding the case of prosecution.
[5.6] She has further submitted that under the law, there is no
requirement of mentioning name of the accused in the inquest
report / panchnama, even if FIR is registered prior to execution of it.
Therefore, she has submitted that it can never be a ground to raise
any doubt on the point of FIR reaching late to the Magistrate, with a
view to create any case. It is further submitted that even if on the
point of place of recording FIR, if Investigating Officer is to be
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disbelieved, the consistent testimonies of first informant as also other
witnesses to the incident could not have been discarded by the
learned Judge to acquit the accused.
[5.7] Learned APP has further submitted that exact time of the
occurrence, though asserted by the witness to be 11:30 or so, it
cannot be discarded if there is any variation of about half an hour or
an hour in the testimony of different witnesses. It can never be stated
to be with exactness. Some witness may perceive approximate time,
some may not look at exact timing in the watch, and therefore, no
undue importance to it can be given to discard the evidence of the
prosecution. The learned Judge, according to submission of learned
APP, thrown overboard the deposition of the eye witnesses on the
ground of time of the assault on the basis of deposition of one Police
Constable Virpalsinh, who opened fire to disperse the mob, deposed
to before the Court that the dead body of deceased was lying there at
the place of incident about half and hour. Therefore, it is submitted
that based on the presumption that after injured was taken to the
hospital, witnesses might have gathered there and they must have
decided to lodge a complaint against some of the persons who are
leaders of other community against whom they had some grievances.
The said finding recorded by the learned Judge, according to
submission of learned APP, is without any substance. Any suggestion
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with regard to false implication of the leader of a community, though
denied by the witness, learned Judge has based his presumption on
the said evidence to conclude that prosecution has not presented true
account of occurrence through the witnesses but some tainted
evidence is led and doubted the truthfulness of the case of the
prosecution.
[5.8] It is further submitted that the testimony of other witness
(PW-3) - Maheshkumar Mehta has been discarded by the learned
Judge based on irrelevant and immaterial contradictions giving undue
importance to it. If an eye witness has not stated in the statement
from which direction mob had come and he has so stated before the
Court, it cannot be said to be such an improvement which doubts the
credit of the witness, even if, witness answers the suggestion that he
does not remember whether he has stated before the Police that
Hareshbhai and Gopalbhai had intervened to rescue the Kiritbhai,
cannot be a ground to disbelieve the said witness. So based on
irrelevant and immaterial contradictions / improvements in the case,
according to submission of learned APP, testimony of an eye witness
cannot be discarded if otherwise found to be reliable. If the witness
has not deposed to before the Court anything about the Police person
coming there at spot, opened up fire to disperse the mob, cannot be a
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ground to discard the testimony of the said witness if said evidence is
found to be there on the overall view of the prosecution case.
[5.9] The finding recorded by the learned Judge, as submitted
by the learned APP, with regard to ransacking the shop and setting it
on fire having not stated before the Police or before the Court whether
seen by him or not, cannot be given undue importance to discard the
testimony of eye witness. Learned APP has further submitted that the
important aspect missed by the learned Judge while recording the
judgment and order of acquittal is the report of FSL. It is submitted
that find of blood marks group "A" on the clothes of the deceased,
clothes of some of the accused, weapon of offence recovered, if not
believed to be discovered from some of the accused, is a vital
circumstance proving presence of the accused at the time of
occurrence or else no blood marks on the clothes of some of the
accused matching with the blood group of the deceased would have
been there. At any rate, according to submission of learned APP, even
on the weapon of the offence recovered from the accused also there
appears the marks of blood group that of the deceased, on it. The said
circumstance also cannot be ignored by the learned Judge while
discarding the prosecution case in its entirety.
[5.10] Rejection of testimonies of all eye witnesses on the
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ground that they are interested because they hail from same political
party, as submitted by the learned APP, is under a wrong premise.
Merely because witness belongs to same political party, their
testimonies cannot be branded as testimony of the interested witness
when one of the party worker is killed. According to submission of
learned APP, there exists no other FIR than the one which is produced
on record by the prosecution at Exhibit -42. Though first informant
may have claimed that he had orally informed the Police at the Police
Station with regard to the incident, they have noted it down, it cannot
be presumed that there was another FIR registered at Police Station,
as PSI Mr. K.J.Soni (PW-17) claims that he recorded complaint at
Hospital. Therefore, prosecution cannot be condemned for not
producing the FIR which was registered at the Police Station.
[5.11] Assailing the judgment and order of acquittal, learned APP
submitted that the infirmities narrated in para -79 of the impugned
judgment and order, certain infirmities are based on mere
presumption, not supported by even evidence based on which it can
be presumed. Learned APP, therefore, submitted that based on the
evidence led before the Court, keeping in mind the corroborating
evidence in the form of documents, Report of FSL, etc., no view other
than the view that the accused are guilty of an offence, can be
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recorded and therefore, the impugned judgment and order of
acquittal is erroneous and requires to be interfered with. According to
her submission, the only view possible based on the evidence led
before the Court is that the accused are guilty of an offence and
therefore, their acquittal recorded by the learned Judge requires to be
upturned and accused are required to be punished accordingly for the
offence they have committed.
[6.0] As against that, Mr. B.S.Patel, senior advocate, learned
counsel assisted by Mr. Chirag Patel, learned advocate for the
respondents - accused, submitted that as rightly concluded by the
learned Judge, there appears no witness to the incident of murder of
the deceased and therefore, at each and every stage there appears
deliberate lapses and witnesses posed themselves as eye witnesses,
which is not believable. He has further submitted that the conduct of
(PW-1) - Gopalbhai Shah, who is the first informant, is also not beyond
any doubt. From the narration of incident and the evidence on other
corroborative nature, he appears to have not given true account of
the same as he has not witnessed the incident at all. Though he
asserts, as according to submission of learned counsel, he went to
Police Station and gave a complaint, the evidence brought on record
by independent witness, if at all is to be believed like K.J.Soni,
Investigating Officer, who deposed to before the Court that he
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recorded the FIR of Gopalbhai in the hospital. Learned counsel for the
respondents - accused further submitted that if injured eye witness -
first informant is to be believed, he went to the Police Station and he
informed the Police accordingly, which was reduced into writing but
that has not been brought to the Court. He has further submitted that
a complaint Exhibit -42 produced by the prosecution, claimed to be
recorded by PW-17 - K.J.Soni, the Investigating Officer, does not bear
the time or the place of recording the same. Therefore, if the witness
asserts with regard to complaint given at the Police Station, it is found
to be contradictory, that too, on evidence led by the prosecution
itself. If Investigating Officer - PSI, is believed to be an independent
witness, his conduct is also very much doubtful in respect of
investigation carried out into the present offence. He submitted that
despite he claims to have recorded the complaint of PW-1 - Gopalbhai
Shah at Hospital, his attention was drawn to the assertion made in the
inquest panchnama, which recites that after reaching Sinor from
Sadhli, he went to the Police Station and took note of complaint filed
in respect of murder of Kiritbhai Shah and he proceeded to the
Hospital. The said inquest panchnama is carried out at 12:30 p.m. to
1:10 p.m. on that day.
[6.1] He has further submitted that, not only the Police but the
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evidence of doctor, who is presumed to be an independent witness,
also does not inspire confidence when he deposed to before the Court
with regard to injury sustained by two of the injured - eye witnesses
whose medical certificates are produced on record, the date and time
of examination is not mentioned in the said certificate. He has further
submitted that the Police Constable- Amanullahkhan, who was
entrusted duty to take the body to the hospital for the purpose of
postmortem, is not examined by the prosecution and surprisingly, the
shirt worn by the deceased was not found at the time when inquest
panchnama was carried out, is produced by him to PSO. Surprisingly,
a panchnama is drawn, that too, by PSO, seizing clothes of the
deceased, said to have been produced by said Amanullahkhan.
Though witness to the said panchnama has supported the case of the
prosecution, according to submission of Mr. Patel, learned counsel,
the Police Station Officer who carried out the said panchnama and
Amanullahkhan - Police Constable who produced those clothes, have
not been examined before the Court and the prosecution has failed to
resolve the mystery how the shirt of the deceased, which was not
found at the time of inquest panchnama or at the time of postmortem
conducted, produced and seized by the Police and sent to the FSL. He
has further submitted that the depositions of eye witnesses also do
not inspire confidence. The manner in which they deposed to before
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the Court during the course of examination-in-chief, they are
consistent in respect of assault on the deceased, whereas events
which took place at the time of incident as also surrounding
circumstance exist thereat at the time, witnesses have conveniently
answered that they do not know or are having lack of information on
the issue. Therefore, he has submitted that the evidence of the
prosecution is lacking in material details and the witnesses who posed
themselves as eye witnesses are not believable at all and rightly not
believed by the learned Judge. He has further submitted that though
two of the injured eye witnesses claimed to have witnessed the
incident, they have either superficial or no injury at all, which is
visible.
[6.2] He has further submitted that though independent
witness, like Medical Officer (PW-2) - Dr. Natvarbhai Nanjibhai
deposed to before the Court that injured when brought to the hospital
was semiconscious and alive and therefore, he administered glucose
saline and thereafter referred to Higher Center like Vadodara, for the
purpose of treatment, however, according to submission of learned
counsel for the respondents - accused, the case papers produced on
record at Exhibit -44 do not reflect his act of administering glucose
saline to the injured. He has further submitted that Exhibit -44 also
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inspires no confidence as there are overwriting at some important
place, does not bear even signature of the witness who deposes
before the Court. If that overwritten certificate Exhibit -44 is seen, the
injured was advised reference to SSG Hospital, which is written after
scoring off to Dabhoi. He has further submitted that despite he
examined the patient first and administered glucose saline, nowhere
he noted down the external injuries found on the dead body at the
time when he examined him. He has further submitted that the
postmortem note, is claimed to be issued on 12.12.1992, while
postmortem is performed on 09.12.1992. It is prepared based on
rough note according to the deposition of the doctor, which is not
preserved.
[6.3] Mr. Patel, learned counsel further submitted that all the
witnesses who have been examined by the prosecution did not know
whether injured Kiritbhai Shah was taken to the hospital alive for
treatment at Vadodara and was brought back within 15 minutes in a
dead condition. He has further submitted that though witness claimed
that Police took the injured to the hospital, nothing is mentioned in
the certificate Exhibit -44 that who brought injured to the hospital as
also who gave history about various injuries on the body parts and
head on 09.12.1992 at 11:45 a.m.
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[6.4] Mr. Patel, learned counsel for the respondents - accused
further submitted that (PW-9) - Parshottambhai Dhanabhai, Principal
of School, where deceased was serving as a Clerk, appears to be got-
up witness as brought out on record by the prosecution itself in the
examination-in-chief. His statement was recorded on 16.12.1992. In
his statement, as deposed to before the Court, one mob wherein Latif
Suleman Memon -A5, Iqbal (Bhagat) Rasul Khokhar-A12, Anwar Akbar
Khokhar-A4 and 10 others came to his office and asked him why
school is not functioning. They also inquired whether school function
got over at the instance of any political party, which he denied.
Thereafter, the mob containing aforesaid referred accused, left the
school. While leaving the school, near staircase, Anwar Akbar
Khokhar-A4, Iqbal (Bhagat) Rasul Khokhar-A12 were talking to each
other that deceased - Kiritbhai Shah is going against us and he is to
be taught a lesson. If the version of the said witness is to be believed
that he overheard two of the accused so stated in respect of Clerk of
his School, who is also Secretary of one of the political party in a
village, he did not bother to inform either to the Police on that very
day when he came to know that Kiritbhai is to be taught a lession or
to any of the person in his office or in the office of trustee, despite he
is having telephone in his own chamber. As brought out in the cross
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examination of the witness, there was a police bandobast near his
school, he could have informed the police immediately if at all what
he deposed to before the Court is believed to be true.
[6.5] As admitted by the witness in his cross examination that
he did not tell the aforesaid fact to anyone from 09.12.1992 to
16.12.1992, if this witness is to be believed, as revealed from the
cross examination of this witness, while he was going towards his
home at about 12:50 p.m. from nearby hospital or the Kumarshala, he
did not see any police man there. He has further submitted that the
learned Judge, while recording an order of acquittal, has given ample
reasons, supported by evidence and the documents, if not clean
acquittal, raising grave doubt about the manner in which incident
occurred and witness deposed to before the Court is believed by the
learned Judge, which requires no interference. He has further
submitted that from the overall appreciation of evidence, even if, it is
re-appreciated, there is no other view possible except the view taken
by the learned Judge, and therefore, under the principle of law
enunciated by the Supreme Court even if two views are possible,
Appellate Court cannot substitute its own view in place of view taken
by the learned Trial Court, therefore this Court may not interfere with
the order of acquittal recorded by the Trial Judge, and therefore, he
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has submitted that the appeal be dismissed.
[7.0] Heard the learned Additional Public Prosecutor for the
applicant - State as also the learned counsel appearing for the
respondents - accused. Perused the deposition of all the witnesses
and documents produced and proved on record in detail as also we
have been taken through the reasons assigned by the learned Judge
for recording an order of acquittal in detail by both the sides.
[8.0] Before embarking upon the detail examination and re-
appreciation of the evidence, the principles of law interfering with
judgment and order of acquittal, as enunciated by the Supreme Court,
is required to be kept in mind. Unless the judgment of the Trial Court
is perverse, Appellate Court would not be justified in substituting its
own view and reverse the judgment of acquittal. Not only that, if at all
on re-appreciation of evidence, even two views of the matter is
possible, the view in favour of the accused is to be accepted and in
that case, no order of acquittal can be interfered with by the Appellate
Court. The Appellate Court would not be justified in setting aside the
Trial Court's judgment unless it arrives at a clear finding on
marshaling the entire evidence on record that the judgment of the
Trial Court is either perverse or wholly unsustainable in law.
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[9.0] It would be profitable to refer a decision in the case of
Arulvelu and Anr. Versus State represented by the Public
Prosecutor and Anr. reported in (2009) 10 SCC 206, relied on by
the learned counsel for the respondents - accused in respect of
guidelines for the Appellate Court in dealing with the cases, in which,
Trial Courts have acquitted the accused, more particularly para-34
therein, which is as under:
"34. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a
two Judge Bench of this Court of which one of us (Bhandari, J.) was a
member had an occasion to deal with most of the cases referred in
this judgment. This Court provided guidelines for the Appellate Court
in dealing with the cases in which the trial courts have acquitted the
accused. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty.
The accused possessed this presumption when he was before
the trial court. The trial court's acquittal bolsters the
presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate
court can re-appreciate the entire evidence on record. It can
review the trial court's conclusion with respect to both facts
and law, but the Appellate Court must give due weight and
consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the
trial court had the distinct advantage of watching the
demeanour of the witnesses. The trial court is in a better
position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb
the trial court's acquittal if it has "very substantial and
compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one
that leads to acquittal, the other to conviction - the High
Courts/appellate courts must rule in favour of the accused."
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[10.0] Now let us examine the evidence led before the Court
starting with the deposition of (PW-1) - Gopalbhai Kantilal Shah who
claims in his First Information Report about mob of 100 to 150
persons, armed with different weapons, of Muslim community,
wherein he could identify 5 accused by name mentioned in the FIR
being Nizamuddin Chhotumiya Kaji - A1, Salim @ Sallu Malang Kaji -
A2, Kadar Sattar Memon -A3, Anwar @ Bago -A4, and Latif Suleman
Memon -A5. As such, in his First Information Report, he referred to
mob of 100 to 150 persons caught hold of deceased - Kiritbhai and
out of the persons named, Anwar @ Bago i.e. Anwar Akbar Khokhar -
A4 as also Salim @ Sallu Malang Kaji - A2 said to have assaulted
deceased with knife. Though what is stated in the First Information
Report is deposed to before the Court, he could identify by name only
5 accused while giving it. Whereas in his examination-in-chief, in para-
2 thereof, he claimed that all accused are of Village - Sinor and he
knows all of them, 12 in number, as they are of his own village.
However, he named Anwar Akbar Khokhar -A4, Salim @ Sallu Malang
Kaji -A2, Kadar Sattar Memon -A3, in his examination-in-chief with
their respective weapons, assaulted deceased, he identified named
accused before the Court. Surprisingly, though this witness was not
knowing all the accused 12 in number as chargesheeted, except
named by him, there is no test identification parade conducted by the
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Investigating Officer nor any attempt to identify other accused not
named by him in his deposition.
[11.0] Though (PW-1) - Gopalbhai Shah claims in his deposition
that he attempted to save Kiritbhai from the assault but in cross
examination on behalf of the accused he had to admit that it is so
stated before the Court for the first time. He has also claimed in his
deposition before the Court that when he attempted to save Kiritbhai
from the assault, he was also assaulted with kick and fist blows.
However, such assertion by the witness in his examination-in-chief
cannot be believed for the simple reason that in a communal frenzy
when the accused of one community assaults the person of other
community, heavily armed with different weapons, they will not
assault the rescuer leaving their weapons aside with kick and first
blows. Though the said witness deposed to before the Court about the
assault on the deceased, he claims to have escaped immediately after
the assault but on Police having arrived at the spot immediately and
fired two shots from the rifle, he returned back to the place of
occurrence. He is candid enough in his cross examination that there is
hardly one or two minutes in between escape and return back to the
place. However, he did not notice the Police when he escaped. He did
not remember which Police had fired shots. He has also, though
reduced the assailants to 10 to 12 in his deposition, despite mob of
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100 to 150 Muslim persons is asserted in FIR, in his cross examination
stated that how many police men were there "he did not know". Even
he did not know after shots were fired by the Police whether members
of public assembled there or not. Except and except assault on the
deceased, that too, by named accused 5 in number in the deposition,
for rest of the surrounding facts and the surrounding events which
took place immediately after incident, just prior to the incident and at
the time of incident, he pleaded to each question that "he does not
know".
[12.0] Despite the deceased was belonging to the political
party, to which not only the first informant - Gopalbhai (PW-1) but
other eye witnesses who were there at the spot are also belonging to
that party, they did not care to take deceased to the hospital. As
stated by him in his cross examination, deceased was taken to the
hospital by the Police. At the same time, (PW-8) - Vipalsinh, Police
Constable, who fired two shots to disperse mob asserted in his
deposition that Kiritbhai was taken to hospital by the public. He had to
admit in his cross examination that no police personnel but public
assembled took Kiritbhai to the Hospital. Though he claims to have
gone to the hospital on that day and had seen the dead body of
Kiritbhai at about 11:30 -11:45 a.m., he did not inform either the
Doctor or the Police present in the hospital about the occurrence
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having witnessed by him. He claims to have given his FIR in the Police
Station. If his cross examination is seen, after he visited the hospital
he straight went to the Police Station and gave complaint about the
murder of Kiritbhai. That means after Kiritbhai died, the FIR for the
murder of Kiritbhai has been given by the witness to the Police Station
on that very day. His further assertion that he met some Police man
there and he gave his complaint, whose name he does not know. As
per his claim whatever he had stated, the Police man recorded it in
writing. He further claims that his signature was also obtained in some
register but he was not provided with copy thereof. However, in the
very next breath in his cross examination, he states that from Police
Station he went straight to the Hospital for the purpose of treatment
and he was treated there. He has also stated that Doctor interacted
with him about the place and time of injury and his treatment was
over by 12:30 p.m. He has denied the suggestion by the learned
advocate for the accused that on that day at Sinor, he did not take
any treatment. Meaning thereby, he confirms that he took treatment
in the hospital on the date of incident i.e. 09.12.1992, which is
contrary to the deposition of (PW-2) - Dr. Natvarbhai Nanjibhai who
states before the Court that he examined (PW-1) - Gopalbhai on
10.12.1992 at 12:30 p.m. Police yadi (Exhibit -48), prosecution did not
produce as it reflected witnesses received injuries in communal
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incident with kick and fist blows as also stick respectively, as
mentioned in it. However, surprisingly, injury certificates Exhibit -46
and Exhibit -47 of (PW-1) - Gopalbhai and (PW-7) - Hareshbhai does
not bear date and time of examination of injured. Not only that it
reflects that (PW-1) - Gopalbhai was beaten with lathi and injury was
simple in nature which cuts at the root as (PW-1) - Gopalbhai has
never said that he was beaten with lathi but he was specific that he
was given kick and fist blows by armed accused. However, in the
cross examination, he has candidly stated that who and with what
weapon he was assaulted is not known to him, whereas in the
examination-in-chief, he stated that he was given kick and fist blows
by the accused.
[13.0] If deposition of this witness is seen, keeping in mind
Police yadi (Exhibit - 48) addressed to Medical Officer, Sinor and
medicolegal certificate issued by Medical Officer (Exhibit -46), coupled
with the deposition of Doctor himself who treated him, it reveals that
on 10.12.1992 a yadi was written by PSI, Sinor addressed to Medical
Officer to give treatment and certificate thereof, who was given kick
and fist blows. The Doctor in his deposition claimed to have examined
PW-1 on 10.12.1992 at about 12:30 p.m., who had come to him with
police yadi. However, in the cross examination of the Doctor, who
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treated (PW-1) - Gopalbhai Kantilal Shah, in his very first question had
to say in his certificate it is reflected that witness - Gopalbhai was
examined on 09.12.1992, but he was actually examined on
10.12.1992. As per the deposition of the doctor, on 09.12.1992, he
was injured by lathi at about 12:30 p.m. However, injury certificate
Exhibit -46 does not reflect the date on which patient was examined,
though it is claimed to have been issued on 26.02.1993 as date
appended on right side top part of it. The claim made by (PW-1) -
Gopalbhai having been assaulted by kick and first blows, appears to
be incorrect when he informed to the doctor on 09.12.1992 at about
12:30 p.m. that he received injury with lathi. Though injured witness -
Gopalbhai claims to have taken treatment on 09.12.1992, the Police
yadi as also doctor who examined him, though date of examination is
not mentioned in the certificate itself, claims that he was examined
on 10.12.1992 for a complaint of beaten by lathi on 09.12.1992. As
such, year and day mentioned in the certificate stated being
09.12.1993 to be written by mistake despite patient was examined on
09.12.1992, as claimed by the doctor who treated (PW-1) - Gopalbhai.
If that certificate Exhibit -46 is seen, it is not in a prescribed format of
the Government Hospital for Medico Legal case. The date on which
patient was examined is also not stated in it. However, conveniently
Doctor deposed to before the Court that he was examined on
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10.12.1992 as police yadi Exhibit -48 reflects the date to be
10.12.1992. Because of such anomaly, police yadi Exhibit -48 was not
being produced by the prosecution, it has been produced and
exhibited as said document referred during the cross examination of
the doctor by the defence. What is narrated in the yadi in respect of
the injury received by (PW-1) - Gopalbhai, he was given kick and fist
blows and witness - (PW-1) in his examination-in-chief was also
categoric about the same having received kick and first blows while
attempting to save Kiritbhai. However, in the history given to the
doctor, as deposed to by (PW-2) - Dr. Natwarbhai Nanjibhai, he was
assaulted by lathi and the said history was given by (PW-1) -
Gopalbhai himself, as stated by the doctor in his deposition.
Therefore, to come out of such discrepancy during the course of cross
examination, he has deposed to before the Court that who assaulted
him with what weapon he did not know.
[14.0] For discarding the deposition of (PW-1) - Gopalbhai,
learned Judge has devoted so many paragraphs with reasons why PW-
1 - Gopalbhai is not believable starting from para-30, while concluding
in para -40, it is stated at the end of it that the complainant is not the
witness of truth. The learned Judge has assigned good reasons
appreciating the evidence of the witness himself, doctor who
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examined him as also the investigating officer who recorded his
complaint who claims that it is recorded in the hospital as also who
issued the yadi to the Doctor dated 10.12.1992, a day after the
alleged incident.
[15.0] As such, the investigating officer (PW-17) - K.J.Soni who
claims to have recorded the complaint of (PW-1) - Gopalbhai in the
hospital contrary to the Gopalbhai's own version about complaint
being given in the Police Station does not bear the time starting
recording of complaint and ending as also place where it is recorded.
Under the normal circumstance, if any complaint / FIR is being
recorded out of the Police station, invariably it bears date, time of
starting the complaint and ending time along with the place where it
is recorded. In this case, complaint Exhibit -42 misses all that
requisites of a complaint recorded outside of the Police Station. Not
only that, such complaint recorded outside the Police Station has to
be sent for the purpose of registration with forwarding letter by the
person who recorded it to register in the book kept at the Police
Station and with an endorsement of a copy being given to the first
informant. Complaint Exhibit -42 does not bear endorsement that
copy of it is given to the complainant. As such, (PW-1) - Gopalbhai-
first informant has asserted in his deposition that information supplied
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by him was recorded by some police man in the police station and no
copy of it was ever furnished to him. Be that as it may, for (PW-1) -
Gopalbhai, learned Judge has recorded that though he has deposed to
with regard to incident in his examination-in-chief while he being
cross examined to certain questions put to the witness about the
surroundings at the time of incident, presence of other police men in
or after the incident, which may have strengthen his assertion having
witnessed the incident or proves him wrong, he has answered that
"he does not know" for more than 40 times. The demeanor of the
witness was recorded in the judgment concluding that he has come to
the Court only to give witness evidence regarding implication or
involvement of the accused and for rest of the things, he has to say
that "he does not know".
[16.0] After critically examining his deposition and the
demeanor, the learned Judge, in para -36, concluded that he was not
at the place of occurrence, as claimed by him. For that, in para -37 of
the impugned judgment and order, learned Judge has enumerated 25
circumstances, the answers to the questions put to him during the
course of cross examination, he replied that "he does not know". He
would not like to repeat those circumstances but it goes to the root of
the case. Referring few of them, if deceased - Kiritbhai was Secretary
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of BJP Unit of a Political Party wherein witness himself is a member
and active party worker despite he knows that he serving in school
which runs in shift but in which shift deceased is working, he pleaded
ignorance answering that "he does not know". Though witness (PW-1)
- Gopalbhai and all other party workers, nearly 20 to 25 in number,
passed through bus stand, he has again pleaded ignorance that he
does not know whether there was a police Bandobast near bus stand
on that day or not which was Bharat Bandh call given by a particular
party, pursuant to which, they assembled and going to schools which
were running on that day, to observe bandh. Though they passed
through market near Masjid whether there was any police bandobast
or not is also answered by the witness that "he does not know".
Despite incident occurred near the residential locality, though
adjacent to the market, (PW-1) - Gopalbhai does not know whether
person residing near the place of occurrence had come out from their
house or not even at the time of incident when police reached the
place from which direction they reached witness has stated that "he
does not know". Not only that, from which direction the police man
who had opened fire, also claimed to be not known to the witness. On
top of everything, despite they were in 20 to 25 in number having
gone to close the school, mob of 10 to 12 persons, maybe with
weapons, when assaulted Kiritbhai, no one has raised hue and cry so
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as to bring to the notice of police on Bandobast duty nearby to reach
the spot instantly, nor any attempt is made by anyone of them to
save Kiritbhai from the assault. The claim that he received injury by
lathi as coming out from injury certificate Exhibit -46, there appears
no corresponding injury which can be caused by lathi. Therefore, (PW-
1) - Gopalbhai had to state in examination-in-chief that all persons,
though armed with different weapons, had given him kick and fist
blows and the corresponding injury appears to be only one, that too, a
contusion, as reflected from Exhibit -46, on backside of abdomen
eliminating the theory of assault with lathi or even kick and fist blows
by any of the accused. Such contusion, if at all, is to be believed, may
be possible by anything else even by fall or because of a gentle push
with hard and blunt object. The claim of (PW-1) - Gopalbhai - first
informant having been assaulted with kick and fist blows by heavily
armed accused carrying different weapons is not digestible to any
man of a normal prudence.
[17.0] So far as deposition of other eye witnesses viz.
Maheshbhai, Bharat Raj, Balubhai Tulsibhai, Hareshkumar and
Virpalsinh are concerned, learned Judge has dealt with in detail their
deposition and appreciated the same on the basis of other material
brought on record by assigning good reasons recorded that the
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testimony of each witness is not reliable. Witness - Virpalsinh (PW-8)
Exhibit -55 who claims to have shot two round in air to disperse the
mob is also not believable as prosecution attempted to bring tainted
evidence raising strong suspicion regarding truthfulness of the case
for the reasons assigned in para -63 of the decision. According to his
deposition, deceased - Kiritbhai was lying there in an injured condition
for about half and hour at the place. Though claimed in his deposition
that he had seen Anwar Akbar Khokhar and one other person at the
place of incident, however he identified Anwar as an accused in the
Court but another person he was not able to either name or even
identify. Coincidentally, while identifying Anwar, he also identified one
Salim @ Sallu Malang Kaji -A2 who was also present in the Court.
However, surprisingly he has not deposed to before the Court or even
identified both the accused assigning them any weapon in their
hands, either bloodstain or not, apart from assembly of any other
accused present in the mob. If his deposition is seen when he reached
the place, Kiritbhai Shah was lying in an injured condition. After
assaulting Kiritbhai, if the version of this witness is to be believed,
accused Anwar and Salim @ Sallu Malang Kaji were there either they
must be armed with any weapon or even their clothes might be
stained with blood as they assaulted to the Kiritbhai according to the
case of the prosecution but nothing is deposed to by this very witness
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who showed Anwarbhai at the place without assigning him any
weapon or even bloodstain cloth.
[18.0] Analyzing the evidence of (PW-1) - Gopalbhai, one thing
is certain that according to him, he has given information with regard
to the incident in the police station which was noted down by the
police present whose name he did not know. However, he is candid
that it was noted down by the police present there that with a no copy
provided to him. On the other, if the deposition of (PW-17) - K.J.Soni,
Investigating Officer, who claims to have recorded complaint of
Gopalbhai is to be believed, he recorded it in the hospital which is
produced at Exhibit -42 and not at the Police Station. If the case
pleaded by the prosecution is to be believed, it has not come out with
the FIR given by (PW-1) - Gopalbhai in the Police Station for the death
of Kiritbhai which was noted down by the police man present in the
police station which is being suppressed. Even presuming that it was
not an FIR, the prosecution should have come out with any material
which is recorded in writing by the police man present in the police
station to explain that either it is not an FIR or a cryptic message
given by an eye witness which was not capable of being registered as
FIR. Having failed to bring it on record, nor producing the FIR, though
claimed by the first information (PW-1) - Gopalbhai having been given
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in the Police Station, very serious doubt about genuineness of the
complaint Exhibit -42 is raised about incident as deposed to by the
witnesses, more particularly, when FIR claimed to be registered on the
very date of incident has reached to the Magistrate after about 8 days
i.e. 17.12.1992, leaving too much scope for police to probable
interference in it, even if not real.
[19.0] Not only that, prosecution has not even tried or
attempted to explain why and under which circumstance it reached 8
days late before the Magistrate. The Court is situated within a stone
throwing distance from the Police Station as village is too small where
the incident occurred. An attempt was made by the prosecution to
explain that since there was curfew in the town and the Magistrate
was at Karjan, FIR could not reach in time but the said explanation is
not supported by any evidence even presuming that there was any
curfew was imposed in Sinor town. However, since Police is arresting
the accused during that curfew time and producing before the
Magistrate for the purpose of even police remand, it cannot be
believed that FIR cannot reach to the Magistrate, that too, promptly if
not forthwith.
[20.0] According to the case of the prosecution, (PW-8) -
Virpalsinh Thakore, who was on Bandobast duty along with Head
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Constable - Kantilal at about 10:45 a.m. in the morning on the date of
incident, heard commotion near Government Hospital and therefore,
they rushed there. According to his deposition, when they reached
there, they found deceased - Kiritbhai Shah lying in injured condition.
He has further deposed to that he saw Anwarbhai Akbarbhai Khokhar -
A4 and one another person whose name he did not remember at that
time but was able to identify in the Court. Thereafter, witness
identified Anwarbhai Akbarbhai Khokhar -A4 and other person, whom
he claims to identify was not able to do the same, whereas he said
that at the place of offence Salim @ Sallu -A2 was also there and he is
present in the Court. According to his claim, he opened fire in air to
dispel the mob and mob dispersed. Thereafter, he went back to his
security point for duty. According to this witness, person from public
gathered there took injured to the hospital. No police officer can open
fire without an order of either his superior or without order of
Executive Magistrate present. If his version is to be believed, how
many shots were fired in air is not deposed to by him in examination-
in-chief.
[21.0] As per his deposition, on the date of incident there was
tight police bandobast in Sinor town. Even at the bus stop there were
police men deployed. Even near Gujarati Kumar Shala where the
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incident occurred is situated within tower point and bus stand point.
As per the cross examination of this witness, he did not see any
person running from opposite direction, though claimed by other
witnesses in their deposition, who claims to be eye witnesses. If
version of the eye witness is to be believed, other eye witnesses
claimed that Kiritbhai was taken to the hospital by Police. Whereas
witness - Virpalsinh at whose prompt action firing two gun shots, mob
dispersed, no police man took injured Kiritbhai to the hospital but
people assembled there took him to the hospital. Apart from the fact
that, without order of the Superior Officer or the Executive Magistrate,
no such shots can be fired even in air. As per the evidence led before
the Court by the prosecution, he was never ordered by Superior
Officer who was with him to fire shots in air. It is coming out from his
evidence that no person seen by him armed with any weapon.
[22.0] As coming out from the record, witness - Parshottam
Galabhai (PW-9) examined at Exhibit -57 who was Principal of
Sarvajanik High School where deceased Kiritbhai was working. As per
the evidence brought on record, his statement came to be recorded
on 16.12.1992 i.e. 7 days after the alleged incident. Though this
witness has reacted in a dubious manner to the incident occured, he
has come out with a case that on the day of incident, a group of
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muslim came to his school and two of the accused talking about
teaching lesson to Kiritbhai who is not only serving in his own school
but Secretary of Political party in the small village - Sinor, he did not
inform anyone even including Kiritbhai despite he is having telephone
facility in his own chamber. Before the Court he claims that he
overheard conversion in between two of the accused that Kiritbhai is
coming in their way and therefore, has to be taught a lesson.
[23.0] However, as coming out on record on that very day i.e.
16.12.1992, a report to invoke provisions of Terrorists and Disruptive
Activities Act came to be made to the concerned Court, to be
recorded in the FIR. Thus, at one point of time, prosecution attempted
to create a story of pre planned murder by hatching conspiracy to
eliminate the deceased - Kirtibhai Shah through the statement of this
witness, but after about 7 days of the alleged incident, though said
talk, which was overheard by the witness, occurred on 09.12.1992,
the said story of the witness deposed to before the Court appears to
be incorrect.
[24.0] Based on the statement of (PW-9) - Parshottambhai
Galabhai dated 16.12.1992, a report to add provisions of Terrorists
and Disruptive Activities Act (TADA) was made to the jurisdictional
Court, which was ultimately dropped. On analyzing his overall
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deposition and improbability in his deposition he is branded as got-up
witness by the learned Judge and rightly so.
[25.0] So far as rest of the eye witnesses are concerned, they
have also given the verbatim story about assault and incident in their
examination-in-chief. Even witnesses were confronted with their
statement recorded during the investigation and such contradictions
were brought on record. Though it may not be that vital, witnesses
have attempted to improve upon their version to show that they were
alive to other surroundings at the time of incident which was never
stated before the Police, like the deposition of (PW-1) - Gopalbhai,
there are several answers in the cross examination replied as "he
does not know". After stating in detail all those circumstances,
learned Judge in para -64, concluded that (PW-3) witness -
Maheshkumar Mehta who claims to be an eye witness cannot be
believed because he has not given the natural evidence. Though
witness - Maheshkumar has not deposed to so many things, what is
deposed to also cannot be believed as he has not deposed to with
regard to police personnel reaching the place of occurrence and firing
shots in air to disperse the mob. His deposition to the effect that
despite they show mob of 10 to 12 persons heavily armed attacking
Kiritbhai, there was no hue and cry raised by anyone and nobody had
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tried to run here or there. The said deposition of the witness cannot
be believed for the simple reason that either brave man may try to
rescue their colleague or some persons may shout for help and some
may run away from the place. However, neither of the courses
adopted by these set of eye witnesses as claimed by (PW-3) -
Maheshkumar Mehta - eye witness. Despite this witness staying
nearby the house of the deceased - Kiritbhai and such a ghastly
incident occurred assaulting Kiritbhai, as per his evidence, he did not
inform anything about injury caused to Kiritbhai to anybody in the
house of the Kirtibhai. Though he was called in the Police Station in
the evening, despite that after even reaching home he did not tell
anything about Kiritbhai to his family. As per the evidence brought on
record on that day, some shops belonging to Muslims were burnt and
looted but no witnesses have so stated in their deposition.
[26.0] We do not want to lengthen our judgment by recording or
repeating what learned Judge has said in respect of eye witnesses, in
so many paragraphs that they are not believable at all as their
conduct at the time of incident and after the incident is not of a
normal prudent man. Though all the witnesses claim to be party
workers whose Secretary is being assaulted, they have behaved in a
very dubious manner so as to conclude that their reaction or conduct
is not of a normal man. As recorded by the learned Judge that their
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deposition and demeanor before the Court gives an impression that
neither of them has witnessed the incident at all. For saying so,
learned Judge has assigned so many reasons, with the view we also
subscribe.
[27.0] The investigation into the case conducted by (PW-17) -
K.J.Soni, is also not free from doubt. First of all, his claim about
recording of complaint in the hospital is belied by the complainant
himself that he gave complaint in the Police Station. Absence of any
yadi forwarded along with the complaint recorded in the hospital to
addressing PSO to register FIR in the form prescribed under Section
154 of "the Code", coupled with the fact that complaint does not bear
the place where it is recorded as also time of recording it, not only
that, his deposition clearly suggests that he is not telling the truth
before the Court. According to him, he was on a patrolling duty at
Sadhli and when informed about the incident, he never went to the
Sinor Police Station, he denied the suggestion that after taking note of
FIR being filed in the Police Station in respect of the incident, he went
to the hospital. Whereas, his attention was drawn to the statement
recorded in an inquest panchnama which reflects that he went to
Sinor Police Station and as offence was registered thereat he took
note of it and went to the hospital where dead body was lying. If that
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part of the evidence is to be looked into, his claim of having
registered the complaint in the hospital falls to the ground.
[28.0] Not only that, in his cross examination he had to admit
that in that very police station he was serving since 4 months prior to
the date of incident. However, he has stated factum of communal
violence wherein one mosque was ransacked on 06.12.1992, is
incorrect. He has also stated it to be incorrect that for the said
incident there was a case filed against one Ramakant Ramanlal Shah.
The said Ramakant Ramanlal Shah examined by the prosecution as
PW-11 was also a panch witness to the inquest panchnama. If his
cross examination is seen, said Ramakant Ramanlal Shah had
admitted that on 06.12.1992 when a mosque was ransacked in his
village, for that incident there was a case filed against him, however
he has explained that he has been acquitted of the charge. This very
fact goes to the very credibility of the Police Officer who recorded the
complaint as also investigated the case.
[29.0] Not only that, he had to admit in his cross examination
that while he carried out inquest panchnama, there was no shirt on
the body of the deceased - Kiritbhai. However, during the course of
evidence led before the Court, (PW-12) - Upendra Babubhai Soni
came to be examined who is a panch witness to the recovery of
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clothes of the deceased which includes white colored bloodstained
with cut marks shirt. However, prosecution has miserably failed to
show on record how that white colored bloodstained containing cut
marks shirt which was not there when inquest panchnama was carried
out on the body as also when postmortem was performed which was
also not there, how it could be recovered. Witness (PW-17) - K.J.Soni
(PSI), has attempted to say that said panchnama is carried out by
PSO. Surprisingly, neither the PSO nor any person who had produced
that clothes have been examined by the prosecution and still it is a
mystery as the shirt was also sent to the FSL for the purpose of
serological report, which was never found on the body when inquest
and postmortem was performed.
[30.0] Another independent witness like (PW-2) - Dr. Natvarbhai
Nanjibhai also appears to be not telling the truth before the Court. In
his deposition, he has stated that injured Kiritbhai was brought to his
PHC at about 12:30 p.m. on 09.12.1992. However, in the next breath
he improved that he was brought at 11:45 a.m. without police yadi
and he was on a last breath and therefore, he administered glucose
saline and referred him to Vadodara. He has further stated that
injured was taken out of PHC and thereafter his dead body was sent
to Sinor, PHC. However, examination note Exhibit -44 produced by the
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Doctor reflects that not only there are certain interpolations on
material aspect but it misses even the signature of the Doctor himself.
The said certificate does not record that who brought the patient and
from whom history was taken. Not only that, the story of he was
breathing his last and glucose saline was administered to the patient,
is also missing from that certificate itself. Under the circumstances,
the claim of the Doctor reflected from Exhibit -44 that patient -
Kiritbhai Shah was brought to him breathing his last and he referred
him to Vadodara, appears to be incorrect. The advise, as referred to
Dabhoi, is scored off and instead SSG is reflected from Exhibit -44.
Blood pressure also recorded in that document is not only overwritten
but certain part of that certificate is scored off. On top of everything,
no any injuries with their measurement is noted down in the said
certificate and the general statement is recorded in that certificate
came with "H/O various injuries on the body part and on head, on
09.12.1992, 11:45 to PHC Sinor, without police yadi, patient
semiconscious". Since the said certificate is unsigned by that very
witness who claims to have recorded, the same is open for correction
at any time even after the date which is mentioned in it. Not only that,
the very Doctor when he has performed the postmortem, he records
in column No.7 that shirt - "undressed" from the body without any
further noting down in it whether he undressed it or he was brought
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undressed. If at all he undressed the same, he must record the same
in postmortem note and to whom he entrusted the clothes of the
deceased. Not only that, the postmortem report is silent about who
identified the dead body as also who brought the dead body. In
column No.2, by whom the corpse was brought, a long bracket is
shown to be by PSI, Sinor which is incorrect even as per deposition of
PSI, Sinor as he did not bring the dead body to the Doctor for the
purpose of postmortem. The name of the dead body on which
postmortem was performed is written as per Police inquest as
reflected from the postmortem note.
[31.0] Surprisingly, though postmortem on the dead body was
performed on 09.12.1992, postmortem note came to be prepared on
12.12.1992. However, it is attempted to be explained that while
performing postmortem, Doctor noted down injuries and
measurement in a rough note which was never preserved by him.
Doctor had to admit in his cross examination that postmortem note
was prepared on 12.12.1992 and the details therein was never filled
in at the time of performing postmortem. However, the details, as
mentioned in the postmortem report, were noted down in the rough
note which is not with him. In absence of rough note preserved and
produced before the Court, his claim with regard to what is seen by
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him and noted down in a rough note cannot be believed, more
particularly, when there are also certain doubts created in his injury
certificate issued in respect of injured eye witnesses for the reasons
stated in earlier paragraphs, his claim with regard to information filled
in postmortem note on 12.12.1992, in absence of rough note being
shown or preserved, creates doubt as he did not even record the
injuries in the certificate Exhibit -44, when he first examined the
deceased. Not only that, Exhibit -44 certificate is not even signed by
him. From the evidence led before the Court, by examining eye
witnesses as also the doctor, there appears a great doubt about
Kiritbhai Shah being brought to the hospital alive or breathing last or
even in a dead condition.
[32.0] If at all the say of the doctor is to be believed, as Exhibit -
44, certificate is prepared on the very same day, he could have
prepared the postmortem note on that very day noting down the
injuries as found and noted in it. If at the time of carrying out the
postmortem, any rough notes are prepared noting down any external
or internal injuries, nothing prevented him from noting down external
injuries found at the time of examination of the patient first, which is
not reflected in Exhibit -44 certificate claimed to have been issued on
that very day i.e. 09.12.1992.
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[33.0] Not only that, the very doctor who issued certificates
Exhibit -46 and 47 in respect of two injured eye witnesses, does not
bear the date of examining those two witnesses by him. On the
contrary, what appears from the certificate itself, though recorded as
an history given, showing the date and time, maybe the time of
examining them. However, (PW/1) - Gopalbhai Kantilal Shah in an
examination-in-chief, claims to have been beaten by kick and fist
blows and in cross- examination he had to admit that who and where
he was assaulted he does not know. However, he denies the
suggestion that he did not take any treatment at Sinor Hospital on
that day. Meaning thereby, witness asserts to have taken treatment
on 09.12.1992 and by 12:30 his treatment was over. Whereas doctor
in his deposition claims to have examined the witness on the next day
i.e. 10.12.1992. Not only that, nowhere in the certificate Exhibit -44, it
is stated that who brought the patient to the hospital, since patient
was being examined without Police yadi. Not only that, as mentioned
in it "came with H.O. various injuries on the body part and head on
09.12.1992 at 11:45" but how and in what manner injuries were
caused is not mentioned in the said history. Even person who gave
history is also not reflected in the said certificate. Even the claim of
doctor that he administered the glucose saline, is also not supported
by any contemporaneous record including Exhibit -44.
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[34.0] Over and above that, if the deposition of (PW-2) - Dr.
Natvarbhai Nanjibhai is to be believed, so far as clothes on the dead
body received, it was wearing white shirt, banian, black color pant of
blood stains. However, if column No.7 of the postmortem report is
seen for the clothes, more particularly shirt, it is written "undressed"
from the body. If at all, it is undressed by the doctor himself, he would
have said in his deposition that he undressed that shirt from the dead
body. However, inquest panchnama reflects that dead body did not
have any shirt over it. If while performing inquest panchnama, dead
body did not have shirt on it, how come it has been found wearing it
while it was sent for the purpose of postmortem as deposed to by the
doctor in para-2 of his deposition. Not only that, there is no evidence
coming forth from any of the witnesses that how and in what manner
that shirt undressed from the dead body as claimed by the doctor
reached and through whom for the purpose of examination in the FSL
and before that who has seized it and from whom. If evidence in that
respect is to be seen, witness (PW-12) - Upendra Babubhai Soni
claims that on 09.12.1992 he was called as panch witness at about
11:30 a.m. to 12:00 p.m. and Police shown him one pant, white shirt
and banian. Pant was having cut marks on the right side and banian
was having blood marks. He has also stated that shirt was also having
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blood marks as also cut marks. However, which Police had shown to
him these clothes, is not deposed to by him. Even prosecution has
also not come out by examining that witness who was in custody of
those clothes shown to the panch witness and how Mr. K.J.Soni (PW-
17) - Investigating Officer submitted that the said panchnama is
carried out by the Police Station Officer and at the same time, he said
that dead body was sent to the hospital for the purpose of
postmortem through Amanullahkhan. Neither Amanullahkhan nor PSO
who executed that panchnama is examined before the Court. So, it
remains a mystery that a white shirt worn by the deceased at the
time of the incident, as deposed to by the eye witnesses, was not
there when inquest panchnama was carried out on the dead body.
Suddenly, dead body reached wearing that white shirt as deposed to
by the doctor and he undressed the same. How it was undressed,
either by cutting or manually, is not deposed to by the doctor. Not
only that whether it was received in undress by shirt or not is also not
stated in PM note or even in his deposition. However, as mystery
could be, it was received in the FSL having bloodstain over it. There is
no evidence led by the prosecution that who removed shirt from the
body and then entrusted to whom, how it reached to any Police so as
to execute a panchnama as deposed to by (PW-12) - Upendra
Babubhai Soni.
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[35.0] The argument pressed into service by the learned APP
that weapons discovered / recovered as also the clothes of the
deceased and clothes of one of the accused were seized, all were
stained with human blood, that too, of "A" blood group. Therefore, it
corroborates the evidence led by the prosecution and that is why,
learned Judge could not have acquitted all the accused. However,
further statements recorded of each accused under Section 313 of
"the Code", if examined, no such circumstance having bloodstains on
the weapons discovered / recovered or the clothes of the accused
were ever put to the accused for the purpose of explanation which is
an important exercise to be undertaken giving opportunity to the
accused to explain the evidence appearing against him / them.
Learned APP is unable to show if such question is put to any of the
accused for the purpose of explanation under Section 313 of "the
Code". Therefore, it is in noway the evidence which could be used for
the purpose of corroboration, that too, evidence appearing against
the accused. As such, on detail examination and appreciation of
evidence by the learned Judge, assigning good reasons in detail, when
deposition of eye witnesses held to be not believable and their
evidence is discarded, evidence of this nature as contained in Report
of FSL, more particularly serological report becomes useless, more
particularly, when if that evidence appearing against accused was
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never put to them in a further statement under Section 313 of "the
Code".
[36.0] Moreover, as per deposition of (PW-12) - Upendra
Babubhai Soni, who is a panch witness to the seizure of clothes of the
deceased, which is said to have been executed at about 11:30 a.m. to
12:00 p.m. as the witness was called at that time in the Police Station.
As such, as per the prosecution, deceased died somewhere around
12:00 or 12:30 p.m. on 09.12.1992 and dead body reached the Doctor
for the purpose of postmortem at 1:30 p.m. In any case clothes of the
deceased could not have been recovered, that too, in the Police
Station at about 11:30 a.m. to 12:00 p.m., as claimed by (PW-12) -
Upendra Babubhai Soni, as (PW-17) - K.J.Soni, Investigating Officer,
stated in his evidence that said panchnama came to be carried out by
the Police Station Officer in the Police Station. If evidence of (PW-12) -
Upendra Babubhai Soni is seen, Police had shown black colored pant,
white colored shirt as also banian. However, there is no evidence that
who produced the clothes said to have been worn by deceased and
how that person came in possession of those clothes, is also not
answered by the prosecution. If the deposition of said witness is
further seen, in examination-in-chief itself he has stated that he was
never called by the Police to become panch witness on any other
occasion. He has candidly stated further in it that no clothes worn by
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any of the accused are shown to him by Police. He was shown
documents mark 40/10 which is a panchnama drawn by PSI, Sinor
Police Station with regard to discovery of clothes worn at the time of
incident by Salim @ Sallu Malang Kaji (A2), appears not only the name
but signature of Upendra Babubhai Soni as panch No.2 in that
panchnama Exhibit -74. Panchnama which is said to be drawn for
recovery of muddamal clothes worn by the deceased, executed on
09.12.1992, whereas panchnama (Exhibit -74) where the present
witness - (PW-12) Upendra Babubhai Soni is also a panch witness
came to be executed on 12.12.1992. (PW-12) - Upendra Babubhai
Soni does not say anything with regard to witnessing panchnama
carried out on 12.12.1992 and on the contrary, he has candidly stated
before the Court that he was never called as panch witness again as
also he was never shown even clothes of any of the accused.
[37.0] Similarly, deposition of (PW-16) - Mahendra Ambalal Patel
who is panch witness to the panchnama claimed to be discovery of
clothes worn by Salim @ Sallu Malang Kaji -A2 where the witness
shown as panch No.1 and he never talks about any panchnama
executed on 09.12.1992 in presence of PW-12 - another panch
witness Upendra Soni, reflecting recovery of clothes of the deceased.
Though (PW-12) - Upendra Babubhai Soni and (PW-16) - Mahendra
Ambalal Patel are the panch witnesses to two of the panchnamas,
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they never said before the Court that they were the panch witnesses
to both panchnamas i.e. seizure of the clothes of the deceased as
also the discovery of clothes of accused - Salim @ Sallu Malang Kaji
(A2) being executed. (PW-12) - Upendra Babubhai Soni talks about
only seizure of the clothes of the deceased which is again under a
cloud as shirt which was not there over the dead body when inquest
panchnama was carried out, it was not there when postmortem was
performed, how that shirt and clothes worn by the deceased reached
to the Police Station, that too, through whom is also a mystery to be
answered by the prosecution and prosecution has not answered it at
all. As admitted by (PW-16) - Mahendra Ambalal Patel in his cross
examination that first informant - Gopalbhai and he himself stays in
very same maholla. If deposition of first informant is seen, as
admitted by him in cross examination in para-9, though he denied the
suggestion that to help heirs of deceased - Kiritbhai, he engaged 3 or
4 advocates, however first informant - Gopalbhai had to admit in his
cross examination that it is true that two advocates have been
engaged on their behalf to help heirs of the deceased. (PW-16) -
Mahendra Ambalal Patel, despite he took part in two panchnamas
drawn on different dates, has never disclosed it to the Court that he
has also witnessed the execution of another panchnama along with
other witness (PW-12) - Upendra Babubhai Soni. Since the first
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informant - Gopalbhai is interested in the prosecution, being worker
of a political party whose Secretary is murdered, engaged two
advocates to help the prosecution, stays in the same Maholla where
PW-16 is staying, a possibility cannot be ruled out that both the panch
witnesses i.e. (PW-12) - Upendra Soni as also (PW-16) - Mahendra
Ambalal Patel are within the control of the first informant and very
well advised by two advocates helping prosecution in cleverly
suppressing two different panchnamas, drawn on different dates,
though witnessed by PW-12 and PW-16, they have not stated it before
the Court that they are panch witnesses to two different panchnamas.
However, as stated hereinabove, the bloodstain found on the
washed off clothes of the accused - Salim @ Sallu Malang Kaji -A2, as
reflected from the serological report cannot be used against him as
the said circumstance appearing against him was never put to him in
a statement recorded under Section 313 of "the Code" of the said
accused.
[38.0] Considering overall circumstance, as aforesaid, the
incident appears to have not occurred as claimed by the eye
witnesses and the manner in which investigation is carried out as also
deposition of Doctor who is expected to be independent has not acted
like, that also creates doubt about the genuineness of investigation
itself.
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[39.0] On overall analysis and re-appreciation of evidence
brought on record, there appears no room to take a different view
than the view taken by the learned Judge in this appeal.
[40.0] Having considered the entire evidence and re-
appreciating the same, we are unable to disturb the findings of the
learned Judge acquitting accused and therefore, this Appeal deserves
to be dismissed and it is hereby dismissed. Records and Proceedings
be transmitted back to the concerned Trial Court.
Sd/-
(UMESH A. TRIVEDI, J.)
Sd/-
(M. K. THAKKER,J.)
Lalji Desai
