Gujarat High Court
Patel Kanubhai Tribhuvandas vs The State Of Gujarat on 29 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/706/2007 JUDGMENT DATED: 29/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 706 of 2007
With
R/CRIMINAL APPEAL NO. 724 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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PATEL KANUBHAI TRIBHUVANDAS
Versus
THE STATE OF GUJARAT
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Appearance in Criminal Appeal No.706 of 2007:
MR NANDISH THACKER WITH MS. NAMRATA SONAM for THAKKAR AND
PAHWA ADVOCATES(1357) for the Appellant(s) No.1
MR ROHANKUMAR RAVAL APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in Criminal Appeal No.724 of 2007:
MR B.M. MANGUKIYA for the Appellant(s) No. 1
MS BELA A.PRAJAPATI for the Appellant(s) No. 1
MR ROHANKUMAR RAVAL APP for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/08/2025
ORAL JUDGMENT
1. By an order dated 28.07.2025, Criminal Appeal
No.740 of 2007 came to be disposed of as abated
on demise of the appellant-Patel Bharatkumar
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Ambalal.
2. The present both appeals are filed by the
appellants under Section Section 374 of the Code
of Criminal Procedure, 1973, (for short
'Cr.P.C.') challenging the judgment and order
dated 03.04.2007 passed by the learned Sessions
Judge (Main Court) Gandhinagar in Sessions Case
No.86 of 2006, whereby the learned Sessions Judge
convicted the present appellants-accused for the
offence punishable under Section 435 of the
Indian Penal Code (for short 'IPC') and sentenced
them three years rigorous imprisonment with fine
of ₹5,000/- each and in default stipulation
further rigorous imprisonment of one month.
2.1 The Court of first instance i.e. Sessions
Court tried thirteen accused in Sessions Case
No.86 of 2006 for the offence under Sections 147,
148, 149, 332, 435, 337, 427 of IPC, Sections 4
and 7 of the Prevention of Damage to Public
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Property Act, 1984 (for short 'PDPP Act') and
Section 135 of the Bombay Police Act (for short
'B.P. Act'). In conclusion of the trial, the
learned Sessions Judge acquitted ten accused i.e.
accused Nos.4 to 13 from all the charges. While
accused Nos.1 to 3 been convicted for the charges
under Section 435 of IPC.
3. The facts of the case, as could be gathered
from the impugned judgment, can be succinctly
said that the accused No.10 - Ganpatbhai
Bhalabhai Patel, who happens to be husband of
Smt. Vidhyaben, Sarpanch of Village Khoraj, prior
to this incident on 18-03-2006, was kidnapped by
Gomarbhai and Bharatbhai of Rabari community. A
complaint was filed by accused - Ganpatbhai A-10
at the Police Station. It was alleged that on
account of that incident, persons belonging to
Patel Community had gathered near the temple
situated near Gram Panchayat to attack Rabari
community persons.
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3.1 On 07.04.2006, Rabari Karamsinhbhai
Devkaranbhai at 21:20 hours asking for police
force had informed police telephonically that a
crowd of 300 to 400 people of Patel community had
gathered in front of Khoraj Panchayat office near
Mahadev temple. Complainant P.S.I. Jayesh
Dashrathlal Brahmbhatt was on his duty at Adalaj
Police Station and, at that time pertaining to
the complaint, he and Deputy Superintendent of
Police, Mr.Joshi and Head Constables Mr.
Jagatsinh, Vikaramsinh, Karansinh, Natvarsinh,
and Police Constable Mohanbhai Taljabhai,
Maheshbhai Mavjibhai etc. reached Village Khoraj.
They had with them Government bike, and
government vehicle.
It is the case of the police that at about
22:00 hours, under the leadership of accused
No.10 - Ganpatbhai Bhalabhai persons belonging to
Patel community well equipped with weapons such
as iron pipes, sticks and stones had come
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shouting abusive words against Rabari community
were trying to go towards Rabarivas.
3.2 Hence, the complainant and Deputy
Superintendent and other police staffs had tried
to stop them, at that time accused persons
belonging to Patel community started pelting
stones on them, on account of which the
complainant sustained injuries on left leg,
A.H.C., Vikaramsinh sustained injuries on his
face at jaw, Deputy Superintendent Mr.Joshi got
injured on his chest and other police staffs too
sustained injuries.
3.3 It is stated by the complainant that at
that time accused - Rameshbhai Kacharabhai Patel,
accused - Bharatbhai Ambalal Patel and accused -
Kanubhai Tribhuvandas Patel set the Government
motorcycle bearing Registration No.GJ 18: G:7081
P-42 on fire, hence, all the three persons (A-1,
A-2, A-3) were caught by the police persons. It
is stated that the mob of Patel community damaged
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the Government Jeep by breaking its front and
rear glasses. It is the police case that as the
mob was uncontrollable tear gas shell were
released. Prosecution case was that, as accused
A-10 was kidnapped and taken away by the persons
belonging to Rabari Caste thus, keeping the
grudge of that incident, on 07.04.2006 people of
Patel community, by constituting illegal assembly
gathered near the temple at Gram panchayat of
village Khoraj, with the intention to attack the
people of Rabari community.
3.4 It is the police case that the persons
belonging to Patel Caste have attacked them well
equipped with the weapons. By stone pelting have
injured them and caused damaged to the Government
vehicles.
3.5 The complaint was given by complainant
Mr.J.D. Brahmbhatt, P.S.I and P.S.O. (A.S.I) Mr.
Motibhai Parmar registered and handed over the
Investigation to P.S.I - Mukeshbhai Amrabhai
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Patel (Exh.44).
3.6 Investigating Officer drew Panchnama vide
Exh.26 of the place of offence. Statements of the
witnesses were recorded. I.O took the spot visit
with the officer of F.S.L. whose report was
produced at Exh.45. I.O had arrested the accused,
and carried out panchnama Exh.28 pertaining to
recovery of weapons. The weapons were sent to the
Forensic Science Laboratory for further
investigation, I.O. had gained analysis report
from the F.S.L. Finding enough evidences against
the accused persons, charge-sheet before the
Court of the learned Judicial Magistrate,
Gandhinagar for the alleged offence came to be
filed.
4. Learned advocate Mr. B.M. Mangukiya for the
appellant submitted that the judgment and order
of conviction is illegal, unjust, improper and
therefore, requires to be set aside. Mr.
Mangukiya stated that there is no evidence on
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record to establish the nexus between the
incident in question and the present appellants.
4.1 Learned advocate Mr. Mangukiya stated that
the learned Judge has erred in not properly
appreciating the fact that P.W.1 - Jayesh
Dashrathlal Brahmbhatt, the complainant, serving
as Police Sub-inspector of Adalaj Police Station
has stated in his evidence that the FIR was
written by his Writer-constable. However, he has
not stated the time of reducing the complaint
into writing. This witness does not disclose the
name of the writer-constable in his deposition
and he has clearly stated that he does not
remember the name of his writer. The prosecution,
for reasons best known to it has chosen not to
examine the writer of the FIR. Advocate Mr.
Mangukiya addressed to pertinently note that
though according to the prosecution case, the
offence was committed by a mob of about 400 to
500 persons; the FIR was registered against 13
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persons only. The learned Sessions Judge was
from the charges leveled against them. Advocate
Mr. Mangukiya stated that the charge against the
appellant is on the same footing, hence, there
was no justification to convict the present
appellants by placing reliance on the same set of
evidence that has acquitted the other accused.
4.2 Mr. Mangukiya stated that it is pertinent
to note that the complainant was P.S.I. of Adalaj
Police Station. This witness has admitted in his
evidence that he did not know any accused persons
when they were arrested and he asked their names
when they were brought to the Police Station. He
has also admitted that he could not pin-point the
time when the accused persons were brought to the
Police Station. Surprisingly, this witness has
stated that the FIR was given by him on the spot
i.e. at the scene of offence. However, strangely
in the FIR, names of 13 persons were mentioned
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and there is no evidence, as to how and at whose
instance the names of the accused persons were
introduced in the FIR including that of the
present appellants. The witness has also admitted
that there was nothing to show that the FIR was
given at the scene of offence.
4.3 Learned advocate Mr. Mangukiya further
submitted that the learned Sessions Judge has
overlooked the fact that the person who is the
complainant himself has investigated the offence
and submitted the charge-sheet. Looking to the
facts and circumstances, the investigation ought
to have been done by some Superior Officer. In
the present case, the record of the case shows
that Dy.S.P. Shri Joshi had visited the place but
had not done any investigation.
4.4 Learned advocate Mr. Mangukiya stated that
the learned Judge has erred in not appreciating
the fact that there is material contradiction in
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the evidence of the prosecution witnesses, as to
at what place, the motorcycle, which was alleged
to have been burnt was lying. P.W.2 - Mangaji
Khodaji Thakor, panch witness has stated that he
was called by the police at the temple of Ambaji
Mata, where the burnt motorcycle was lying, but
contrary to the same, P.W.5 - Vikramsinh Bihola
and P.W.6 - Maheshbhai Parmar have stated in
their evidence that the motorcycle was parked
near Panchayat Office. Thus, Mr. Mangukiya stated
that the prosecution has failed to prove as to at
what place the incident had taken place.
4.5 Learned advocate Mr. Mangukiya stated that
the learned Sessions Judge has failed to
appreciate that it has come on record in the
evidence of P.W.-1 P.S.I. Shri Jayesh Brahmbhatt
that before the F.I.R. was registered,
information regarding the incident had already
reached the Police Station. The prosecution has
suppressed the information that had reached the
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Police Station prior to the F.I.R. This
information disclosing the cognizance of the
alleged offences was first in point of time and
the same should have been treated as F.I.R. Mr.
Mangukiya stated that the learned Sessions Judge
ought to have drawn adverse inference against the
prosecution since the prosecution had suppressed
and not brought on record the information
received by the police station first in point of
time.
4.6 Learned advocate Mr. Mangukiya further
submitted that the learned Sessions Judge has
erred in not appreciating and considering the
fact that one of the accused, who tried was with
the present appellants was also injured and had
lodged a complaint for causing injuries to him by
the opposite party i.e. persons of Rabari
community. Mr. Mangukiya submitted that the
Police Inspector P.W.13 - Mukesh Patel has also
admitted that one of the accused, namely,
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Bharatbhai Patel had received injuries and his
F.I.R. was registered and thus, the prosecution
has suppressed the origin and genesis of the
incident in question. The prosecution has failed
to explain the injuries of accused - Bharatbhai
Patel.
4.7 It is stated by learned advocate Mr.
Mangukiya that the learned Sessions Judge has
failed to appreciate that P.W.8 - Saiyad
Nazarali, an eye-witness, has not disclosed names
of the accused, who are alleged to have set the
motorcycle on fire. He has not deposed that three
persons igniting the motorcycle, were caught from
the scene of offence.
4.8 Learned advocate Mr. Mangukiya further
submitted that P.W.10 - Punambhai Patani, Police
Constable has deposed that the names of the
persons, who set the motorcycle on fire were
disclosed to him by one Jamadar accompanying him.
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However, the name of that Jamadar is not coming
on record nor is he examined as witness by the
prosecution. Mr. Mangukiya stated that this
witness also does not depose that he had
disclosed the names given by the Jamadar to the
complainant, neither had the complainant deposed
that the names were given to him by the present
witness. Mr. Mangukiya stated that this
highlights the most important question leading to
the root of the matter, as to how the name of the
present appellants found its way in the FIR. Mr.
Mangukiya submitted that the learned Sessions
Judge ought to have taken into account this very
vital factor for coming to his conclusions
regarding the guilt of the accused. There is
general and vague evidence given by this witness
that the persons from the mob had set the
motorcycle on fire and similar is the evidence of
another police personnel P.W.7 - Vaghela
Rajendrasinh.
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4.9 Learned advocate Mr. Mangukiya stated that
the learned Sessions Judge has failed to
appreciate that according to the evidence of
P.W.5 - Vikramsinh Bihola, he had given the names
of three persons including that of the appellants
as persons, who were alleged to have set the
motorcycle on fire. However, this witness has not
deposed in his evidence that he had given names
of three persons to the complainant - P.W.1
Jayesh Brahmbhatt. Mr. Mangukiya stated that
according to P.W.1 - Jayesh Brahmbhatt, the
F.I.R. was given on the spot and the names of
thirteen accused were mentioned and there is no
evidence on record as to how and who disclosed
the names of thirteen accused at the scene of
offence. On the contrary the evidence of
complainant P.W.1 - Jayesh Brahmbhatt, is to the
effect that he came to know about the names of
the accused persons only when they were brought
to the Police Station. Moreover, P.W.5 -
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Vikramsinh Bihola has admitted in his evidence
that he was knowing the leaders of Khoraj village
and the case of the accused persons was that
since they were leaders of the village and
reputed persons of their community they were
falsely implicated by the police.
4.10 Learned advocate Mr. Mangukiya further
submitted that the learned Sessions Judge has
committed error of law in convicting the
appellant, despite the fact that the offence was
allegedly committed by a mob of 400 to 500
persons, the police had arrested thirteen
persons. Admittedly, no Test Identification
Parade was carried out in this case and it is
impossible for the police to identify and to
implicate the present appellants with the crime
in question in absence of the Test Identification
Parade.
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4.11 Learned advocate Mr. Mangukiya stated that
the prosecution has not examined any independent
person as prosecution witness and out of the
thirteen witnesses examined by the prosecution,
twelve witnesses are police personnel. Mr.
Mangukiya submitted that the only independent
person, who was examined, does not give the name
of any of the accused. It is stated by Mr.
Mangukiya that the accused were falsely
implicated in the case, the evidence shows no
active participation of the appellants as regards
the entire incident.
4.12 Mr. Mangukiya, learned advocate stated
that the learned Sessions Judge has failed to
appreciate that the incident in question had
happened after 9.30 p.m. and there is no evidence
on record to show that there was sufficient light
to identify the accused at the scene of offence,
thus, the identity of the appellants in the crime
in question are not established beyond reasonable
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doubt.
4.13 Learned advocate Mr. Mangukiya further
submitted that the learned Sessions Judge has
overlooked the fact that although, as per the
record, as many as six witnesses were injured due
to stone pelting, none of injured police
witnesses have taken treatment in any hospital
for their so called injuries and only one witness
had gone to Civil Hospital, Gandhinagar. As per
the deposition of P.W.12 - Dr. Mukesh Patel, one
Vikramsinh Bihola (P.W.5) had come for his
treatment. He states in his deposition that the
police had been informed about the case only
after admitting the injured person in the
hospital. He also deposed that the injured
witness had not bothered to register the case as
a medico-legal case and not thought it fit to
inform the police attached to the hospital.
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4.14 Learned advocate Mr. Mangukiya stated that
no accused persons were seen or found causing
damage to the public property. Thus, the case of
the prosecution cannot be said to have been
proved beyond reasonable doubt under Section 435
of the I.P.C. It is stated that none of the
police witnesses, who were examined, had any
occasion to see the present appellants prior to
the incident. Thus, stated that in absence of any
Test Identification Parade, it is hazardous to
convict the appellants on the basis of the oral
testimony of the police witnesses. It was
impossible for any unknown witness to identify
the present appellants from the mob of 400 to 500
persons during late hours of night, particularly
when the witnesses had no occasion to see the
appellants prior to the incident.
4.15 Learned advocate Mr. Mangukiya further
stated that the learned Sessions Judge has failed
to appreciate the fact that none of the
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prosecution witnesses has stated, as to who was
the accused, who caused damage to the property.
No witness has seen the appellant taking active
participation in the offence, thus, no nexus is
established between the appellants and the
incident in question.
4.16 That the learned Sessions Judge has erred
in convicting the appellant under Section 435 of
the Indian Penal Code, despite the fact that the
panchnama at Exh.28 does not indicate recovery of
any ignitable substance such as kerosene, diesel,
petrol, match-sticks or lighter. Moreover, it is
not established as to how the motorcycle caught
fire. Thus, in absence of such evidence, the case
of the prosecution cannot be said to have been
proved beyond reasonable doubt.
4.17 Learned advocate Mr. Mangukiya stated that
the learned Sessions Judge has committed serious
error in convicting the appellants though the
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evidence of P.W.8 - Saiyed Kalumiya is totally
silent as to which weapon was with the accused
persons. Mr. Mangukiya stated that this witness
though claims to be an eye-witness, has not
stated anything, as to what role was played by
the accused persons and had not identified the
appellants in the Test Identification Parade or
in the Court room. Thus, no reliance can be
placed upon the evidence of this witness at all.
4.18 Learned advocate Mr. Mangukiya further
submitted that the evidence shows that panch
witnesses have not supported the case of the
prosecution and, therefore, panchnama cannot be
said to have been proved and under the
circumstances, the impugned judgment and order of
conviction is illegal, erroneous and against the
provisions of law and, therefore, the same
deserves to be set aside.
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4.19 Mr. Mangukiya stated that the prosecution
has failed to establish the motive of the alleged
incident. According to the prosecution, mob of
about 400 to 500 persons had gathered with a view
to attack on the houses and persons belonging to
the Rabari community, however, the entire
incident shows that no such person of the Rabari
community was attacked, nor any property of such
a person was damaged. Therefore, the prosecution
has miserably failed to establish its case
against the appellants beyond reasonable doubt.
5. Learned advocate Mr. Nandish Thacker with
Ms. Namrata Sonam for the appellant in Criminal
Appeal No.706 of 2007 has adopted the arguments
made by learned advocate Mr. Mangukiya.
6. Learned APP Mr. Rohankumar Raval for the
State referring to the charge framed against the
accused and supporting the conviction under
Section 435 IPC, submitted that the accused
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Nos.1, 2 and 3 were arrested on the spot, where
they had set the vehicle on fire. The complaint
was by P.W.1 - P.S.I., but investigation was
conducted by P.S.I. - M.A. Patel P.W.13, who had
arrested the accused. Mr. Raval, learned APP
submitted that the investigation was also made to
the complaint dated 18.03.2006. The panchnama of
the place of incident and more specifically of
the vehicle, which was set on fire, was drawn.
P.W.5 - A.S.I. injured witness had deposed about
the burning of the vehicle and that has been
supported by P.W.6 and P.W.7. Mr. Raval submitted
that the person, who had given the telephonic
'Wardhi' was examined as P.W.9. The evidence of
P.W.10, who was in possession of the Pulsar
vehicle shows the mode of setting the vehicle on
fire. The injury sustained by police witness has
been corroborated by the treating Doctor -
P.W.12. The IO - P.W.13 has brought all the
scientific evidence on record by way of F.S.L.
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report. Mr. Raval, learned APP, submitted that
the undisputed fact of the vehicle put on fire
was corroborated by the evidence of the police
witnesses by proving the presence of the three
convicted accused. Mr. Raval submitted that
police was engaged in controlling the crowd, the
convicted accused had set the vehicle on fire.
Mr. APP submitted that it was an independent
investigation by P.W.13 and contended to upheld
the conviction stating that the impugned judgment
is reasoned order.
7. Heard learned advocates for the respective
parties, perused the material placed on record.
The present matter has to be analysed, with the
background that accused No.10 - Ganpatbhai
Bhalabhai Patel being the husband of Smt.
Vidhyaben - Sarpanch of Village Khoraj was
kidnapped on 18.03.2006 by Rabari Gemarbhai and
Bharatbhai. Accused No.10 had thus, given a
police complaint.
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7.1 Thus, it is the prosecution case that
keeping that out of that grudge and enmity the
members of Patel community had gathered on
07.04.2006 at a temple situated near Gram
Panchayat It was the prosecution case alleging
that they had gathered to attack Rabari
community. So, P.W.9 - Rabari Karamsinhbhai
Devkaranbhai on 07.04.2006 phoned at 21.20 hours
to police station asking for police force..
7.2 P.W.1 - complainant Adalaj Police Station
second PSI got the 'Wardhi' that 400 people had
gathered. He went with police staffs in
Government Jeep and motor cycle with registration
No.GJ-18-G-7081 and Joshi Saheb had come in Gypsy
Vehicle No.GJ-18G-1378 P-32, when they reached
Khoraj village a crowd of 400 people of Patel
community had gathered near Ambaji Mata Temple.
The complainant stated that there was earlier
quarrel between Patel and Rabari community.
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7.3 The trial was against thirteen accused,
though the evidence had been given that 400
people of Patel community had gathered. As per
the complainant they were placed at points by
their officer Shri Joshi. At 22 hours, the crowd
in the leadership thirteen people consisting of
Ganpatbhai (A-10), Rameshbhai Vakil (A-12), Patel
Advanibhai whose name complainant does not
recall, Bharatbhai Ambalal Patel (A-2), Kanubhai
Tribhuvanbhai Patel (A-3), Rameshbhai Kachrabhai
Patel (A-1), Bharatbhai Karshanbhai Patel
shouting abusively at the Rabari community were
heading towards Rabarivas with stones, sticks,
pipes etc. in their hands. The complainant and
Deputy Police Superintendent Shri Joshi and
police staff were trying to stop them, therefore,
the crowd got incited and started pelting stones
on the police.
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7.4 The noticeable fact is that the convicted
accused Nos.1, 2 and 3 had been specifically
named by the complainant, with accused No.10, who
was earlier kidnapped, and one Advocate and
Baratbhai Karshanbhai Patel is named, who is not
an accused in the matter. Accused No.13 - Patel
Bharatbhai Tribhuvanbhai is the person, who had
filed a complaint of an incident of that very
day. The suggestion was denied by the complainant
that the persons from the crowd had informed that
Rabaris were beating Bharatbhai.
7.5 The complainant had identified accused
Nos.1, 2 and 3 alleging to be in the crowd
taking the leadership, since the crowd was
pelting stones on police. Complainant was injured
on left leg, police constable Vikramsinh Bihola
on the jaw and Joshi Saheb on the left hand,
Maherbhai Manjibhai on the chest and other as
named in the deposition sustained injury by the
stone.
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7.6 No evidence has been given by the
complainant,of crowd holding any material in
their hand to create mischief by fire,nor any
evidence of intention to commit arson by the
crowd or by the leaders of the crowd.
7.7 Complainant further states that during that
period, the crowd became uncontrollable and
Rameshbhai Kachrabhai (A-1) Bharatbhai Ambalal
Patel (A-2), Kanubhai Tribhuvanbhai Patel (A-3)
put the Government bike on fire. So the
complainant and police constable Poonambhai
Chappanbhai, Police Constable Natubhai, caught
them from near the bike. The complainant
identified muddamal article-5 as stone, article-7
to 13 as sticks, article-14 as pipe and article-
15 as brick pieces, which he said were used
during the incident. Complainant was knowing the
accused. The muddamal does not show any
inflammable material.
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8. F.S.L. report shows presence of Petroleum
Hydrocarbons on sample 'A', B/1, B/2, B/3 and C.
Sample 'A' was rusted half burnt motorcycle,
where front tyre was half burned, rear tyre was
not found. Fuel Tank was empty. Wiring insulation
was burned, therefore the metal wires were found
opened. Motorcycle was not having seat and was in
deformed condition, while sample B/1 to B/3 were
metal pieces,coiled wire, wiring pieces etc. as
described, and spare parts of Pulsar motor cycle,
sample-C was Iron Box with lid with writing on it
as 'Babul Jafrani Jarda' and other writing,the
box contained burnt black and ash colour material
in newspaper wrap. Sample 'D' was control soil
in newspaper wrap in an iron box with 'Babul
Jafrani Jarda' and 'Bagban Jafrani Jarda'written
on the box and the lid.
9. The information was of 400 people of Patel
community gathered at Khoraj village. The
complainant in his cross-examination stated that
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during the patrolling, he had received no secrete
information of any other potential offence.
Exh.21 - Complainant was given against the crowd.
9.1 The complainant denied the suggestion that
on 07.04.2006, he received a secret 'Wardhi' in
connection with the incident. The 'Wardhi' was
given by Karamsinhbhai Desai to P.S.O., who in
turn gave the 'Wardhi' to this witness. Before,
he received the 'Wardhi' he had the knowledge of
the incident dated 18.03.2006, where complaint
was given by Ganpat Patel (A-10) against people
of Rabari community, of kidnapping and causing
injury. PW1 - complainant affirmed that because
of the incident dated 18.03.2006, there was
tension in the village and such fact was on the
record of the police. The suggestion was that
police had taken the side of Rabaris and
therefore had not aided Bharatbhai.
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9.2 According to complainant their vehicles
were parked at five minutes distance from the
place, where the meeting was in progress.
9.3 Witness-complainant stated that he had seen
the government vehicle put on fire. There was no
panchnama at the time of arrest of the persons
from the place. Complainant clarifies that the
person, who caused damaged to the government
vehicle were immediately made to sit in the
vehicle and since the struggle of the police with
the crowd was still going on, so had no time to
draw panchnama. Witness affirmed that when these
persons were caught, he was not knowing them.
9.4 The deliberate fire-setting has been used
as a means of community violence. The malicious
injury to property can be punished provided the
crime is committed when a person with the wilful
intention of injuring others has set fire,
whereby such property has caught fire and damage
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has been caused.
9.5 The evidence of the complainant clarified
that he had no such prior information of any such
offence was proposed to be committed. The
telephonic information, which was received from
P.W.9 and the telephonic Wardhi, which was
recorded at Exh.38, was P.W.9 - Karamsinh
Devekaran Rabari informing telephonically that a
crowd of 300 to 400 people of Patel community had
gathered at Mahadev Temple near Panchayat office
of Khoraj village. P.W.9 had asked to send police
and to do the needful. The Wardhi No.98/06 was
recorded at 21.20 hours of 07.04.2006 i.e. 9.20
of night hours. This telephonic information of
Karamsinhbhai Devkaranbhai does not inform the
police of any inflammable articles or things in
the hands of the crowd, nor did it inform of any
other instruments or weapons in the hands of the
crowd. Probably it could have been a peaceful
gathering. The exaggerated figure of 300 to 400
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people could hardly be believed, as the village
Khoraj may not have the population of Patel
community to that extent. Nothing has been
investigated to verify the content of telephonic
'Wardhi'. The complainant police Jayesh
Brahmbhatt records that at 22:00 hours i.e. 10:00
p.m. the crowd under the leadership, as referred
hereinabove, were marching towards Rabarivas
abusing the Rabaris and shouting to kill them.
The crowd was having stones, sticks and pipes.
The witness has not stated that it was iron
pipes. Though, the intention of the crowd, as per
the complainant was to assault the Rabaris, but,
nothing has come on record of any injury to any
of the people from Rabari community nor any
injury to their house or property. P.W.9 has also
not given any such information of the intention
of the crowd to march towards the Rabari
community with an intention to assault. There is
no such information of any such preparation made
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by the people of Patel community.
9.6 P.W.9 in his evidence has stated that he
was not knowing the person in the crowd, but
stated that Ganpat Bhala (A-10) and Jatinbhai
Gorwardan (A-6) were shouting. The witness P.W.9
could only identify A-6 and A-10 in the Court. He
further stated that police has not shown him
Wardhi. In the cross-examination, it has come in
the evidence that prior to the incident and
thereafter too he was residing in the village. He
further stated that he has not knowledge as to
who had given the complaint in relation to the
incident. The police has recorded his statement
after a week and he had been called to the police
station. He further stated that he knows accused
No.10 - Ganpatbhai as he is the Sarpanch of his
village. The witness does not know whether
Rabaris of the village prior to the present
incident had taken away Ganpatbhai (A-10), but he
affirmed that Ganpatbhai had filed one case
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against Rabaris and also stated that those
persons of Rabari community were his relatives.
In the cross-examination, the witness stated that
he knows Bharatbhai Tribhuvanbhai of their
village but had not heard of any injury to
Bharatbhai prior to his giving the Wardhi. He
affirmed that Bharatbhai had given complaint
against Rabaris. P.W.9 denied the suggestion that
to defend the Rabaris, he had given a false
'Wardhi'.
9.7 The evidence on record, as has come by way
of P.W.9 and the complainant police (P.W.1), that
there was animosity between two communities. The
enmity could become evident when accused No.10
Ganpatbhai was kidnapped by the people of Rabari
community and accused No.10 - Ganpatbhai had
given a complaint against Rabaris and the cross-
examination of P.W.9 also brings on record that
Bharatbhai Tribhuvan Patel (A-13) had received
some injury prior to the Wardhi given by P.W.9 to
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the police.
9.8 The defence has been raised that to support
the people of Rabari community the police had
filed the case against the people of Patel
community. The evidence of complainant clarifies
that the police was knowing about the tension
between the two communities. The incident with
(A-10) had occurred on 18.03.2006. Since then,
there was tension in the village. It has not come
on record as to what steps were taken by the
police till 07.04.2006 to reduce the tension
between the communities or what steps were taken
by the police by way of protection of the
villagers which includes members of both the
communities during the 'Bandobast'. Nothing has
come on record and even by the evidence of the
complainant that during the course of 'Bandobast'
or patrolling he had received of any secret
information of any probability of any such
offence. Complainant has stated that accused
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No.13 - Bharatbhai had given police complaint
108/2006 at Adalaj Police Station and as per the
complaint he had sustained injury on that very
same day.
9.9 Complainant states that he had seen the
Government vehicle being burnt. In spite of this
evidence complainant does not state of having
collected any material used for setting the
vehicle on fire, nor any explosive substance to
bring the case under the scope of Section 435 of
the IPC.
10. Both Section 435 and Section 436 contemplate
inter alia, explosive substance. Explosive
substance has been defined in Section 2(a) of the
Explosive Substances Act 1908. The definition is
as follows:
"S. 2. Definitions - In this Act-
(a) the expression "explosive substance"
shall be deemed to include any materials for
making any explosive substance; also any
apparatus, machine, implement or material
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used, or intended to be used, or adapted for
causing, or aiding in causing, any explosion
in or with any explosive substance; also any
part of any such apparatus, machine or
implement;"
"Explosive substance' has a broader and more
comprehensive meaning than the term
'Explosive'. Explosive substance' includes
'Explosive'. The term 'Explosive' has not
been defined in the Explosive Substance Act,
1908. The dictionary meaning of the word
'Explosive' is, tending to expand suddenly
with loud noise: 'tending to cause
explosion' (The Concise Oxford Dictionary).
In the Explosives Act, 1884 the terms
'explosive' has been defined as follows:
d) "explosive" means gunpowder,
nitroglycerine, nitroglycol, gun-cotton, di-
nitro-toluene, tri-nitro-toluene, picric
acid, di-nitro-phenol, tri-nitro-resorcinol
(styphnic acid), cyclo-trimethylene-tri-
nitramine, penta-erythritol-tetranitrate,
tetryl, nitro-guanidine, lead azide, lead
styphynate, fulminate of mercury or any
other metal, diazo-di-nitro-phenol, coloured
fires or any other substance whether a
single chemical compound or a mixture of
substances, whether solid or liquid or
gaseous used or manufactured with a view to
produce a practical effect by explosion or
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pyrotechnic effect; and includes fog-
signals, fireworks, fuses, rockets,
percussion-caps, detonators, cartridges,
ammunition of all descriptions and every
adaptation or preparation of an explosive as
defined in this clause;"
11. Section 435 IPC denotes mischief by fire or
explosive substance. Mischief is defined under
Section 425 IPC. 'Mischief' involves intention or
knowledge of likelihood to cause wrongful loss or
damage. Destruction with object of creating
wrongful loss or damage is obligatory to be
established. 'Mischief' involves a mental act
with a destructive animus. The mischief under
section 435 IPC must be by fire or explosive
substance.
constitutes:
(i) That the accused committed mischief;
(ii) That he did so by fire or any explosive
substance;
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(iii) That the accused intended to cause (or knew
it to be likely cause) that he would cause damage
to any property;
(iv) That such damage amounted to one hundred
rupees or upwards; And in case of agricultural
produce, a damage of ten rupees or upwards;
12. The learned Trial Court Judge for
consideration of the case and appreciation of the
evidence had formulated the following questions
for decision:
(1) Whether the complainant side has succeed in
proving that, the accused persons of this case had
formed unlawful assembly and being member of that
assembly had gathered opposite to the gram panchayat
near the temple, and in order to carry out their
common intention had in order to attack the Rabari
people gathered by being equipped with weapons,
stones etc.?
(2) Whether the complainant side has succeed in
proving the fact that, on Police reaching the spot
of incident, the accused persons and persons of
Patel community had started pelting stones upon the
Government Police Officer-complainant, Deputy Police
Commissioner, and other police persons and witness
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and had injured them, have raised obstructions
against them in performing their public services and
had damaged their government vehicles - motorcycle
and gypsy car and set them on fire and thus, the
accused persons have with the help of each other
have committed offence under Sections 147, 148, 149,
332, 435, 337 and 427 of the Indian Penal Code and
under Sections 4 and 7 of the Damaged to Public
Property Act and have by being equipped with the
weapons have violated the declaration of Prohibition
of Weapons of the Additional District Magistrate and
have committed offence under Section 135 of the
Bombay Police Act?
(3) What order?
13. The learned Trial Court Judge found that
the complainant failed to prove unlawful assembly
of the accused person of the matter and also did
not find that the members of the assembly
gathered to carry out their common intention to
attack Rabari community being equipped with the
weapons like stones, sticks etc. The learned
Trial Court Judge found that only accused Nos.1
to 3 had damaged the Government motorcycle by
setting it on fire and damaged the Gypsy car, but
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had not found the persons of Patel community
pelting stones upon the police officers -
complainant, Deputy Police Commissioner and other
police personnel and witness, or had injured
them, or raise obstruction in performing their
public services. The Trial Court Judge has also
not found the crowd equipped with the weapons in
violation of the proclamation of prohibition of
the weapons by the Additional District Magistrate
to have committed the offence under Section 135
of the B.P. Act.
14. P.W.5 - Vikramsinh Bihola is the person,
who was serving at Adalaj police station on
07.04.2006. He has corroborated the fact of
receiving Wardhi at 11:20 hours at Adalaj Police
Station. As per the witness the telephonic
information to police station officer Motibhai
Maujibhai was that at Khoraj village, the crowd
had gathered of Patel community and are
quarreling with Rabaris. On the basis of the
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Wardhi, he had gone along with P.S.I. of Adalaj
Police Station J.D. Brahbmhatt (P.W.1), Head
Constable - Jagatsinh Manusinh, Head Constable -
Karansinh Natvarsinh and police constable
Maheshbhai Maujibhai and other police persons of
Adalaj Police Station in Government Jeep at
village Khoraj. At that time, the witness stated
that a crowd of about 400 persons of Patel
community had gathered in the front-yard of the
Ambaji Mata Temple.
14.1 The witness P.W.5 further stated that at
that time, police constable Poonambhai and police
constable Natubhai, who were serving at Adalaj
Police Station came with the Government
motorcycle of the police station being Pulsar GJ-
18-G 7081, for 'Bandobast' and further stated
that the Police Officer Joshi Saheb from Kalol
Division with his commandos and staffs had come
in government Gypsy for 'Bandobast'.
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15. The damages to the property, as per the
complainant was assessed for the motorcycle
No.GJ-18-G 7081 of putting it on fire, and of
damaging by breaking the front and rear mirror of
the Government Gypsy Vehicle No.GJ-18-G 1378 P-32
as ₹4o,ooo/- and ₹3000/- respectively. As per
the complainant the motorcycle was set on fire by
accused Nos.1 to 3, while damage to the
Government Gypsy vehicle was by the crowd.
16. The witness P.W.10 was Poonambhai
Chhapanbhai Patni, the police constable, who
along with police constable Nattubhai had gone to
the place of incident on motorcycle No.GJ-18-G
7081. From the witness deposition, it can be
recorded that the Wardhi they received stated of
quarrel between Patels and Rabaris and they were
asked to reach there. It is required to be noted
that the telephonic Wardhi does not reflect the
quarrel actually taking place between the Rabaris
and Patels at the place of incident.
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16.1 P.W.10 had gone there alongwith constable
Nattubhai on the order of P.S.I. - J.D.
Brahmbhatt (P.W.1). P.W.10 states that they had
seen a crowd of 200-300 people at Ambaji Mata's
Temple, at that time, J.D. Brahmbhatt and staff
members and Dy.S.P. Joshi Saheb were present
there. He stated that the crowd was incited and
was going towards the Rabari Street, therefore,
they had tried to stop the crowd. Thereafter, the
crowd had come towards them and furiously started
abusing and pelting stones, at that time, they
had tried to stop the crowd and because of the
stone-pelting, two to three of them were injured.
Therefore, their Saheb had given an order to the
Commandos for release of tear gas.
16.2 The evidence of P.W.10 alongwith evidence
of P.W.1 and P.W.5, if read together, then it
shows that accused No.1 to 3 were in the crowd
alongwith other acquitted accused Nos.4 to 13.
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The crowd was heading towards Rabarivas, while
the bike was parked near Ambaji Temple. The
evidence of P.W.1 also notes that they were made
to stand at various points by the police officer
Shri Joshi. P.W.1 explicitly states that accused
Nos.1 to 3 were in the leadership of the crowd
heading to Rabarivas. They were armed with
sticks, stones and pipes. The evidence of P.W.1
and P.W.5 clarifies that accused Nos.1 to 3 were
in the leadership of the crowd alongwith others,
while no inflammatory material to cause fire or
any explosive substance in the hands of accused
Nos.1 to 3 were identified by P.W.1, P.W.5 or
P.W.10.
16.3 P.W.10 stated that he had parked the Pulsar
motorcycle near Ambaji Temple and the knob was
pulled of the Pulsar Bike for burning it. The
witness - P.W.10 stated that after reaching
there, they had stopped the crowd and three
persons, who were setting the bike on fire were
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arrested. They were Rameshbhai, Bharatbhai and
Kanubhai Tribhuvandas.
16.4 The evidence of P.W.10, thus shows two
places of incident (i) the crowd heading towards
Rabarivas and (ii) the place at Ambaji temple
where the Bike was parked. The crowd at the time
of their gathering at the Temple, was peaceful.
P.W.1 specifically states that the crowd in the
leadership of thirteen persons were in the
process of assaulting Rabarivas with stones,
sticks and pipes. If that is the evidence, then
accused Nos.1 to 3 were the leaders of the crowd
engaged in assault on the Rabarivas with stones,
sticks and pipes. P.W.1 does not state that out
of thirteen, three of the accused had again gone
to Ambaji Mata's Temple to put the motorcycle on
fire. The evidence of P.W.1 states that during
the course of stone pelting, the crowd suddenly
became uncontrollable and out of thirteen,
Rameshbhai Kachrabhai - accused No.1, Bharatbhai
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Ambalal Patel-accused No.2 and Kanubhai
Tribhuvandas Patel-accused No.3 had put the
Government Bike on fire and therefore, P.W.1-
complainant himself and P.W.10-Punambhai
Chappanbhai and Police Constable Natubhai had
apprehended them near the Bike. While P.W.10-
Punambhai Chappanbhai states that three persons
from the crowd had put the Pulsar Bike on fire
near Ambaji Temple, and while they were stopping
them they apprehended three persons who had put
the Bike on fire and he named accused Nos.1 to 3.
The evidence would contradict each other, since
crowd with the leadership of thirteen accused
were heading towards Rabarivas, then how again it
turned towards Ambaji Mata Temple, has remained
unexplainable by the witnesses. P.W.10 stated
that they arrested three and made them sit in the
vehicle. The evidence does not further clarify
from P.W.10, as to what was the further act of
the crowd.
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16.5 As per P.W.10, the fact which was brought
in the cross-examination reflects that the
complaint was dictated by PSI - J.D. Brahmbhatt
near Ambaji Mata Temple to his writer. It was
night time and P.W.10 was standing there. He
affirmed that while P.W.1 was dictating the
complaint he was listening it, but denied the
suggestion that the facts which were in the
complaint, were within his knowledge. It is
further stated that on the day of incident, his
duty was not on a specific point. PW10 affirmed
that whatever he heard, he has given his
statement on another day. After recording his
statement, the Investigating Officer had not
taken him to the place of incident, but
thereafter, the Investigating Officer had taken
him and showed him the place of incident. Two
days after recording his statement, he was shown
the place of incident. At that time, P.W.1-
Brahmbhatt was with him and no panchas were
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present.
16.6 The evidence thus, of P.W.10, who was the
Police had come with Government Motorcycle No.GJ-
18-G-7081 is the person, who was knowing the
place where the alleged Bike was put on fire. The
Investigating Officer had taken no pain or shown
any efforts to immediately enquire from P.W.10
about the place of offence, which he had the
knowledge and he was the right person to have
informed the Investigating Officer the place
where the vehicle which he had brought, was set
to fire. Rather it is the Investigating Officer,
who is showing the place of incident to witness
P.W.10 and that too, after two days of his
recording of the statement. As per P.W.10,
complainant was also there to show him the place
and no panchas were present at that time. The
witness also does not know after showing the
place, whether any panchnama was drawn.
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16.7 P.W.10 affirms that Motorcycle No.GJ-18-G-
7081 was in his custody and it was in his custody
on oral order. P.W.10 does not even know under
whose name the motorcycle was registered in the
RTO office. He further clarifies that the
Investigating Officer had not asked for any
documents in connection with the Bike prior to
recording his statement. The witness volunteered
that his license was asked. The witness stated
that after the arrest of the accused, no
identification panchnama was drawn in his
presence. He stated that the Jamadar, who was
there alongwith him, was knowing the accused and
thus, as stated by him, he had named the accused.
Witness could not identify the accused by name or
by their face in the court during trial.
16.8 The evidence of P.W.10 therefore, becomes
very relevant. P.W.10 could not identify the
accused, who had set the vehicle which was in his
custody on fire. He was not knowing them by their
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name. In spite of that, he has named specifically
accused Nos.1 to 3 and thereafter, too could not
identify them in the Court by their name or by
their face. The place of offence of setting the
vehicle on fire becomes doubtful. It is not the
prosecution case that the crowd had come with an
intention to restrain or obstruct the police from
their public duty. The incident of accused No.13-
Bharatbhai Tribhuvan Patel is alleged to have
occurred prior to police coming at the Village.
However, the complainant as the police has not
referred to the complaint filed by accused No.3.
The suggestion, was also placed from the accused
to P.W.1-complainant that the crowd had come to
the police for making the representation against
Rabaris having beaten Bharatbhai, but P.W.1-
complainant denied the suggestion, while had
stated that it had not happened that they had
searched for Bharatbhai till the evening on that
day and after taking his complaint had sent him
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to Dispensary, but stated that it had not
occurred that Bharatbhai was arrested on that
day. And further stated that it had not occurred
of taking notice of Bharatbhai's complaint on
that day. He denied the suggestion that because
of the injury to Bharatbhai, the whole village
had got infuriated.
17. P.W.1 affirmed that in connection with the
incident, there were many other incidents. He
denied the suggestion that the place near Ambaji
Mata's Temple was not sufficient enough to bear
the crowd of 200-500 people.
18. The complainant was working under the
instructions of Deputy Police Superintendent Shri
Joshi who had come in Gypsy No.GJ-18-G-1378-P-32.
The Deputy Police Superintendent has not been
examined in the present matter who could have
deposed about the actual state of incident.
P.W.1 as Police had given the complaint, who
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affirms that in his complaint - Exh.21 has not
given any description of the injury by the
accused with the specific weapon.
19. P.W.5 refers that Pulsar GJ-18-G-7081 was
brought by the police constable Poonmbhai
(P.W.10) and police constable Natubhai. The
prosecution has not examined police constable
Natubhai. Police constable Poonmbhai (P.W.10) and
police constable Natubhai had come for
'Bandobast' on the motorcycle. P.W.5 had stated
that Patel Ganpatbhai Bhalabhai (A-10) was
shouting that Rabaris had kidnapped him and today
they are not going to leave them and will burn
them. According, to P.W.5 this was incitement
from the side of Ganpat Bhala. The evidence of
P.W.5 states that the accused No.10 was inciting
others to burn the Rabaris. If that had been so,
certainly the crowd and more specifically, the
leaders of the crowd would have in their hands
inflammable materials, while nothing of that sort
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is coming on record. There is contrary version of
P.W.1 and P.W.5, where P.W.1 had given the
deposition that the leaders of the crowd were
shouting, addressing the Rabaris that they have
become over wise, and the leaders were provoking
others to kill them. The attack was expected to
occur by the police with stones, sticks and
pipes. In accordance to P.W.5, while Accused
No.10 was inciting the crowd, at that time
Accused Nos.12, 5, 8 and 11 were present there in
the crowd.
19.1 The witness-P.W.5 during the course of
deposition in the trial stated that Bharatbhai
Sakrabhai (Deceased A-5) was not present in the
Court further stating that all the persons were
provoking the crowd which was trying to proceed
towards Rabari street and police was making an
attempt to stop them. According to P.W.5, at that
time, three persons out of the crowd had set the
Government Pulsar motorcycle on fire and burned
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it. At that time, the police apprehended three
persons. The witness named accused No.1, 2 and 3.
P.W.5 further stated that on the three being
arrested by the police, the crowd became further
excited and persons in the crowd with sticks,
iron pipes and other weapons were heading towards
Rabarivas. Police had tried to stop them, at that
time, Bharatbhai Sakrabhai Patel (Deceased A.5)
had thrown stones towards him, therefore, he
sustained injury on the right jaw of his face and
another stone injured him on the right leg and
since there was too much excitement in the crowd,
commando Rajendrasinh had released four tear gas
cells and divisional officer Shri Joshi had
called for police force from Gandhinagar Control
and therefore, the crowd got dispersed.
19.2 P.W.5 stated that as he got injured by the
stone blow on the right jaw he went for treatment
with head constable Jayantibhai Balakdas at
Gandhinagar Civil Hospital. According to P.W.5,
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the cause was, the incident of Patel Ganpatbhai
Bhalabhai (A10) earlier kidnapped by the
Rabaris. Keeping the grudge in regard to the
complaint, by provoking the crowd, they were
heading towards the Rabarivas, the police had
tried to stop them, so the incident had occurred.
19.3 The evidence, as has come on record
suggests that Patel Ganpat Bhala (A-10) was
kidnapped by the Rabaris on 18.03.2006 and it
was A-10 who had given the complaint. If that had
been so, there was no reason for the Patels to
gather on 07.04.2006 at 22.00 hours at night.
This witness (P.W.5) was not referring to the
complaint of A-13 - Patel Bharatbhai
Tribhuvandas. While in his cross-examination,
P.W.5 stated that he was not knowing Patel
Bharatbhai Tribhuvandas (A-13) of Khoraj village
and he does not know if during the time of his
duty A-13 was injured. He does not even know that
since Bharatbhai was injured, therefore the
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village people got infuriated. He affirmed that
Bharatbhai Patel was arrested by the police but
does not know when was the arrest. He knows that
Bharatbhai is accused No.13 of the matter, but he
does not know that Bharatbhai has filed a case
against Rabaris.
19.4 P.W.5 stated that J.D. Brahmbhatt
(complainant) and another two to three police
personnel also were injured in the incident, but
he does not know, whether J.D. Brahmbhatt got
injured prior to him. The witness affirms that he
was serving since long at Adalaj Police Station.
19.5 P.W.5 was examined by Dr. Mukesh Becharbhai
Patel, who examined as P.W.12 at Exh.42.
According to the Doctor, when he was present at
10.30 at civil hospital, Gandhinagar on
07.06.2006, he had examined the patient
Vikramsinh Bihola. Doctor recorded his injuries
as (i) CLW over right face just below right eye
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of 3 cm x 1 cm x bonydeep (ii) 2 cm x 1 cm x
bonydeep (iii) abrasion over right leg size 2 cm
x 1 cm. The patient was admitted in the surgical
ward under the care of full time surgeon and
discharged on 08.04.2006.
20. As per the Doctor (P.W.12) the patient had
given the history that on 07.04.2006, because of
stone pelting at 10.30, he was injured. The
doctor opined that such injury could occur
because of hurt by stone. The witness identified
the pieces of brick Article-5 with which the
patient could sustain injury.
20.1 As per the cross-examination, the patient,
which he examined was a police employee and had
come without any police yadi. The doctor had not
communicated with him, other than the history.
The patient had not insisted for registration of
the complaint or for calling the police. The
injuries were simple in nature. The doctor also
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affirms that such injuries could occur if a
person while running falls on stones.
21. P.W.5 was a police officer. He was knowing
the fact that for the examination of the injuries
he was required to call for the police yadi. The
time of examination noted by doctor is 11.30, as
reflected in the certificate Exh.43. P.W. 5 was
discharged on 08.04.2006. In spite of that, there
was no police yadi for medical examination of the
police.
22. The case of the prosecution is that even
complainant was injured and two to three police
persons got injured in the incident. However,
nothing in the form of medical examination has
been proved to substantiate the witness version.
23. In the cases of Arson, Court would always
insists about the need of proper investigation
and the collection of evidence. The intent and
motive behind the Arson attack would be the
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element of consideration for the Court, so
thorough investigation and collection of evidence
are crucial in the Arson cases to establish the
guilt of the accused. Witness testimony can play
a significant role in Arson cases, but it must be
corroborated with other evidence to ensure
reliability.
23.1 Investigating Arson cases requires a
meticulous and scientific approach to gather
evidence and identify the perpetrators. The
police has to ensure the safety of property and
prevent contamination of evidence. The police has
to identify the potential sources of ignition.
Collect and preserve physical evidence such as
debris, accelerants and ignition sources, record
the statement from witnesses including those who
reported the incident and those who had seen
suspicious individuals or activities or conduct
other then relevant forensic analysis, such as
explosives or ignitable liquid residue analysis.
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24. Here, in this case it is also alleged that
the vehicle of Deputy Superintendent of Police
Shri Joshi was also damaged. The driver Syed
Nazarali Kalumiya was examined as P.W.8 at
Exh.33. He affirms that he was as driver with
Kalol Deputy Police Superintendent Joshi Sahab on
07.04.2006 on Government vehicle No.GJ-18-G-1378
P-32. They had come to Adalaj Police Station at 8
O' clock, at that time they received information
about the crowd gathering at Khoraj village, so
he, Joshi Sahab and Rajendrasinh started in the
vehicle from Adalaj Police Station. As per P.W.8
after reaching Khoraj village, he had parked the
vehicle beside Ambaji Temple. The witness
referred about the crowd of 400 people heading
towards the house of Rabaris. The police was
trying to stop them. The witness states that the
person from the crowd had pelted stones on the
vehicle and therefore, the glasses on the front
side were broken and there were dent on the
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vehicle. The damage was approximately of ₹3000/-.
He stated that Rabaris remained at home and they
were asked to remain silent. The witness stated
that the crowd had also set the motorcycle Pulsar
on fire. Joshi Sahab was injured. Witness also
sustained simple injury. PSI Brahbmhatt was also
injured at the right leg. Thereafter the crowd
was dispersed.
24.1 So the evidence of P.W.8 shows that it was
the crowd which damaged the four wheeler and
motorcycle Pulsar. This witness is not naming
accused Nos.1 to 3.
25. P.W.6 is Maheshbhai Maujibhai Parmar. He
also refers to the presence of complainant
Brahmbhatt and Deputy Police Superintendent,
Kalol who had come to the police station on
visitation. The fact of telephonic information
from Khoraj village and 400 to 500 people of
Patel community in the crowd and about the
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presence of police as well as commando was
deposed by the witness. P.W.6 stated that a crowd
of 400 to 500 people gathered behind the temple
of Ambaji and persons of Patel community in the
crowd were having sticks, pipes and stones in
their hands. Though, the superior officer were
trying to pacify them, in spite of that the crowd
got further infuriated and were heading towards
Rabaris street and therefore, they were cordoned.
They all were present at Panchayat office for
Bandobast along with other persons. At that time,
the stone pelting had begun and the glass of
government gypsy in that process, got damaged.
The witness also stated that the government
motorcycle was parked on the front side of the
Panchayat office and crowd had tried to burn the
motorcycle, at that time, the superior officer
had ordered Lathi charge and therefore, the
crowd became uncontrollable and they set the
motorcycle on fire.
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25.1 This witness also states that the crowd had
put the motorcycle on fire and thereafter the
superior officer had ordered for release of tear
gas cell. The uncontrollable crowd continued with
the stone pelting, therefore, the superior
officer gave a wireless message asking for police
force, at that time, the witness sustained simple
injury on his chest. P.W.6 further stated that
three persons out of the dispersed crowd were
arrested by the police and were taken to the
police station. The witness could not identify
the person who had pelted stones on him, he could
remember only two accused Rameshbhai and
Kanubhai.
25.2 The witness P.W.6 in the cross-examination
had affirmed of the tension between the Patels
and Rabaris communities in the village and the
incident had occurred in the night. The witness
had reached at 9.30 hours at the village but
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denied the suggestion that at that time people
were sitting there in Gram-Sabha and denied the
suggestion that seeing the police they had come
for representation. The tear gas was released
after the bike was set to fire. The witness
stated that he was not knowing that the people of
the village were infuriated because of the injury
to Bharatbhai.
26. P.W.7 is the commando - Vaghela Rajendrasinh
Shankarsinh, who had released four tear gas cell
under the instruction of his superior officer
Shri Joshi Sahab. As per his deposition the crowd
was heading towards Rabarivas and Sahab had
ordered for light Lathi charge therefore, the
crowd had become uncontrollable and because of
the stone pelting, front and side glasses of the
vehicle got damaged. Thereafter, the crowd had
set the Pulsar bike on fire. In spite of that,
the crowd had not dispersed therefore, his
superior had instructed him for release of tear
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gas. The witness stated that he too was injured
below the knee of the right leg. He could
identify accused Ganpat Bhala (A-10). He had not
taken any treatment for the injury. He had seen
Ganpatbhai in the crowd, who was the Sarpanch of
the village and therefore he could identify. So
this witness too, had stated that it was the
crowd who had put the Pulsar bike on fire.
26.1 P.S.O. - Motilal Maujibhai Parmar (P.W.11)
was on his duty at Adalaj Police Station from
20.00 hours on 07.04.06 and 8.00 hours of
08.04.06. He received a telephone call from
Rabari - Karamsinh Devkaran informing that 300 to
400 people of Patel community had gathered in the
front-yard of Panchayat at the Ambaji Mata
Temple. That Wardhi he recorded at 21.20 hours.
The Wardhi no.98/06, he placed in evidence at
Exh.38. The P.S.O. further stated that in the
station diary by entry no.36/06 at 13.45 hours of
07.04.06, I-C.R. No.106/06 was registered and the
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further investigation was handed over to P.S.I.
M.A. Patel. The witness P.S.O. in the cross-
examination stated that during the course of his
duty he had not received the complaint of Bharat
Tribhuvandas and it had not occurred that
Bharatbhai Patel was sent with police Yadi to the
police station. He affirmed that in the telephone
Wardhi there were no names of the accused.
According to the P.S.O. the writer of Brahmbhatt
Sahab, Dilipsinh had brought the complaint to the
police station at about 23.45 hours.
27. It requires to be noted from the evidence of
P.W.1, that the complaint of Bharatbhai
Tribhuvanbhai (A-13), was registered at Adalaj
Police Station as 108/06, while the present
matter was registered as 106/06. This itself
brings the fact to the surface that some
incident had occurred with Bharatbhai
Tribhuvandas Patel, while the police and more
specifically the complainant had tried to hide
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the said fact. It is the defence that because of
injury of Bharatbhai Tribhuvandas Patel on that
day, the people of Patel community gathered at
the Panchayat office. There was no telephone
Wardhi of any overt act of any of the person from
Patel community. It is not the case of the police
that after receiving the telephone Wardhi, while
reaching village Khoraj, they had seen the crowd
of Patel community injuring the people of Rabari
community or hurling stones on the house of
people of Rabari community. It is the defence
that on seeing the police, the people of Patel
community had tried to make their representation,
however, it was not heard. The telephone Wardhi
Exh.38 does not reflect that the alleged 300 to
400 people in the crowd were armed with sticks,
stones or iron pipes. There is no injury to any
of the local people of Rabari community. None
have come forward to allege the case of Arson.
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27.1 As per the referred witnesses, the stone
pelting had started when the police had stopped
them from heading towards Rabarivas. But the said
witness, who had given the telephone Wardhi
(P.W.9) does not state in his deposition that the
crowd was heading towards their Rabarivas. The
only witness P.W.9 - Karamsinhbhai Devkaran
Rabari, though examined by the prosecution is not
at all referring to the incident, which had
occurred as alleged by the police. He only states
that the crowd was of Patel community, though he
is resident of Khoraj village since last 10 years
he was not knowing the persons in the crowd,
while stated that Ganpatbhai Bhalabhai (A-10) and
Jatinbhai Gorwanbhai (A-6), both were shouting,
but what were their utterance has not been
deposed by P.W.9 - Karamsinh Rabari. The witness
was in the village at the time of the incident.
The police has recorded his statement on
22.06.06. In spite of that, he has not stated
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about any act of the accused, while his evidence
refers that Ganpatbhai, the Sarpanch, had filed a
case against the people of Rabaris and he also
affirms that Bharatbhai had filed a case against
people of Rabaris.
27.2 P.W.9 has affirmed of the case filed by
Ganpatbhai as well as Bharatbhai. P.W.9 has not
supported the prosecution case nor has deposed of
any such incident. P.W.9 has not stated of any
act of the appellants, who were accused Nos.1 to
3 during the trial.
27.3 P.W.13 - Mukesh Ambrabhai Patel was the
investigating officer. As per his deposition on
07.04.2006, he was P.S.I. Adalaj Police Station.
During the Bandobast at Khoraj village P.S.O.
Motibhai had registered the offence and had
entrusted the investigation to him. The complaint
at Exh.21 of J.D. Bhrahmbhatt was registered by
P.S.O. According to the Investigating Officer
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witness - H.C. Karansinh had shown him the place
of incident and Exh.26 panchnama was drawn as
narrated by the panchas. Thereafter, he recorded
the statements of witnesses. F.S.L. officer K.A.
Sharma had visited the place and given the report
Exh.45. According to the Investigating officer,
three persons were arrested from the place, while
thereafter other accused presented themselves in
the police station, thus, their arrest was made
who had produced the weapons used by them, which
was recorded by way of panchnama Exh.28. The
witness stated that on 11.04.2006, Rameshbhai
produced stick of Babul (Baval) tree. Bharatbhai
produced an iron pipe, while rest of the accused
Ganpatbhai, Harshadbhai, Swapnilbhai,
Prahaladbhai and Jatinbhai produced bamboo
sticks.
28. The I.O. P.W.13 further stated that the
muddamal was sent for examination. He produced
the relevant document of communication to F.S.L.
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in evidence. The F.S.L. report of the Assistant
Director was produced in evidence at Exh.49 and
the report of scientific officer at Exh.51.
28.1 As per the deposition of the I.O. after the
completion of the investigation, J.D. Brahmbhatt
Sahab arrested one accused named Bharatbhai
Tribhuvanbhai Patel and filed the charge-sheet.
Muddamal articles 7 to 14 were seized by the
witness. In the cross-examination, he affirmed
that in the matter, complainant, the injured and
the witnesses were all police staffs. He had
started the investigation from complaint Exh.21.
accused were not named. It came to his knowledge
that the complaint was registered at the police
station. No such fact was disclosed that prior to
the complaint message was given to the dispenery.
He affirmed that injured Vikramsinh had gone to
the dispensary without police Yadi and during the
course of his treatment, the complaint was
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registered. The IO has affirmed about the grudge
between the Patels and Rabaries in the village .
He has also affirmed about the complaint of
Ganpatbhai against the Rabaris. The witness also
stated that he has not seized any clothes of
witness Vikramsinh, while denied the suggestion
that apart from the police, he had not recorded
the statement of any third person. He denied
recording the statement of Rabaris.
28.2 The witness - Investigating Officer affirms
that he has not collected the documentary
evidence with regard to the bike and Government
Gypsy . Witness as Investigating Officer has also
affirmed that during his investigation such fact
was disclosed that Bharatbhai Tribhuvandas Patel
had sustained injury and he had given complaint
to that effect. The witness stated that he had
not recorded the statement of Bharatbhai
Tribhuvandas and affirmed that he was accused in
the matter. Investigating Officer even affirmed
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that no identification parade was conducted and
denied the suggestion that complaint Exh.21 was
arranged by the police and the accused were
falsely involved.
29. In the case of Balkisan And Others Vs.
State of M.P., 1982 MPLJ 30, the M.P. High Court
by referring to the case of Dhanka V. State, 1964
JabLJ 183, quoted the observation of the said
case, which are as under:
"Having given my anxious consideration
to the direct evidence led against the
present appellant by the prosecution I am of
opinion that it is inherently improper and
discrepant in nature. It is not possible to
place implicit reliance on it.
Great care has to be exercised in
deciding cases of arson, wherein it is not
unlikely that after a fire is detected a
concerted move is made by the complainant
and his witnesses to fasten the
responsibility for it on any one who has
been on terms of enmity with the aggrieved
party. Witnesses who happened to appear at
an odd hour of night at the crucial moment
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and reached the scene of occurrence just in
time to be able to see culprit in action are
more often than got up witnesses. Their
evidence can be relied only if it is
corroborated by some other evidence
connecting the accused with the crime..."
30. The evidence of the witness as an
Investigating Officer clarifies that the
complaint given was by P.W.1 and P.W.1 had
arrested accused No.13 - Bharatbhai Tribhuvan
Patel and P.W.1 had even filed the charge-sheet.
31. The complainant's conduct as a police does
not appear to be independent, as he had filed the
complaint, arrested accused No.13 who had made
complaint of injury suffered by him prior to the
incident,and complainant had even filed the
charge-sheet. The statement of the recorded
witness, except P.W.9 are all police witnesses.
P.W.9 was examined since telephone Wardhi was
recorded in his name. However, P.W.9 being the
resident of the village Khoraj and though was
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present on that day at village Khoraj, his
statement was recorded on 22.06.2006,which does
not state of any destructive act of any of the
accused. P.W.9 has not stated of accused Nos.1 to
3 setting the police motorcycle Pulsar on fire,
nor does he state of any stone pelting. P.W.9
also does not give any account of the crowd armed
with sticks, stones and iron pipes.
32. P.W.2 - Mangaji Khodaji Thakor is the panch
of Exh.26, while second panch Ravjibhai Amajibhai
had not been examined during the trial. P.W.2
Mangaji Thakor was called at about 12.15 night as
panch near Ambaji Mata Temple of Khoraj village
by police, which he state was of 08.04.2006 i.e.
immediately past midnight . The police had asked
him to be a panch of motorcycle which was in a
burned condition at the place of incident. He had
gone along with Ravji Amaji Thakor. The police
had shown him the motorcycle, which was totally
burned. The witness stated that only figure '8'
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could be read. The police showed him the separate
parts and spare parts, the twisted bundled wire,
part of aluminum, which were seized. The panch
witness stated that even ash were taken. He
identified the muddamal Article-2 as burnt
motorcycle spair parts, head light ring, melted
number plate, coiled iron, pieces of wiring and
identified Articles 5 and 6 as pieces of bricks
and small and big pieces of glasses. The police
had shown him the government vehicle gypsy which
was on the northern side of the motorcycle. The
witness does not recollect the registration
number of both the vehicles. According to his
memory the hood of the jeep and side light were
broken. He identified his signature in Exh.26. He
stated that policeman known as Jagatsinh stopped
him, who knows him. The witness stated that he
was standing there and police had dictated the
panchnama and he had signed the same. He also
stated that another panch had not narrated the
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panchnama to the police.
33. The panchnama, if is not dictated by the
panchas, then it will loose it evidentiary value,
then in that situation exclusive reliance on such
panchnama cannot be made. Here, in this present
case, Exh.26 panchnama notes that the place of
offence was shown by head constable Karansinh
Natvarsinh of Adalaj Police Station. The place of
offence is on the eastern side of Ambaji Mata
temple at the outskirt of village Khoraj. Ambaji
Mata temple is east facing and on the eastern
side of the temple after about 15 feet there is a
highway in north-south direction to enter the
village road. On the north side of the temple,
there was a 'Dhobhi Ghat' and from the 'Dhobhi
Ghat', on eastern side after five feet, within
the circumference of 8 feet there were recently
burned ashes and debris, and as noted, where the
government motorcycle Pulsar No.GJ-18-G-7081-P-42
was burned by the accused. The panchnama notes
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that the motorcycle was facing the west, the
front tyre, meter, ring, fans, the part of the
petrol tank, engine area, the rear seat, tyre
rings were completely burned. The aluminum parts
were burned and were reduced to liquid knots,
which were found stick to the surface. Within 8
feet radius of the motorcycle, they found ash
scattered, and the burned chassis of the
motorcycle was observed, and found the spare
parts as head light, rings, wiring pieces and
aluminum parts in melted form, and number plate
when examined, found to be burned and only 'G'
and below that from the series only '8' in
English could be read, whereupon black ash was
stuck. The damages was accounted of ₹40,000/-. On
the northern side of that place, there was Neem
tree and stems and leaves at the height of 10 to
15 feet were found half burned. The panchnama
also notes of the damage to the Jeep to the value
of ₹5,000/-. The open place, noted, scattered
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stones and pieces of bricks, and at a distance of
200 feet towards east, panchayat office is
shown, from where, the eastern side road was
going towards Indranagar Hudko,and on the
southern side of the panchayat office was pakka
road towards Rabarivas, and at approximately 35
feet from the panchayat office, southern side on
the road, were scattered brick pieces and glass
pieces.
34. The panchas of panchnama Exh.28, P.W.3 and
P.W.4 - Kanubhai Pursotam Patel and Kamlesh
Kantibhai Patel, both have not supported the
panchnama, which was for the production of Baval
stick and bamboo sticks. P.W.3 and 4 denied of
any production of baval stick and bamboo sticks
and P.W.4 had also denied of production of rusted
iron pipe by accused - Bharatbhai Sakrabhai
Patel, which was shown to be 42 inch.
35. The High Court of Madhya Pradesh in the
case of Varsingh v. State of M.P., 1989 SCC
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OnLine MP 251 : 1990 Cri LJ 174, has referred to
the case of Badri v. State of Rajasthan, ((1976)
1 SCC 442 : AIR 1976 SC 560) and quoted the
observation of the Hon'ble Supreme Court, which
are as under:
"If a witness, who is the only witness
against the accused to prove a serious
charge of murder can modulate his evidence
to suit a particular prosecution theory for
the deliberate purpose of securing a
conviction, such a witness cannot be
considered as a reliable person and no
conviction can be based on his sole
testimony."
35.1 The Hon'ble Supreme Court in the case of
Javed Shaukat Ali Qureshi v. State of Gujarat,
(2023) 9 SCC 164, by referring to the decision of
three Judges' Bench of the same Court in the case
of Vadivelu Thevar v. State of Madras, AIR 1957
SC 614, quoted paras 10, 11 and 12, which are as
under:
"10. ... On a consideration of the relevant
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authorities and the provisions of the
Evidence Act, the following propositions may
be safely stated as firmly established:
(1) As a general rule, a court can and may
act on the testimony of a single witness
though uncorroborated. One credible witness
outweighs the testimony of a number of other
witnesses of indifferent character.
(2) Unless corroboration is insisted upon by
statute, courts should not insist on
corroboration except in cases where the
nature of the testimony of the single
witness itself requires as a rule of
prudence, that corroboration should be
insisted upon, for example in the case of a
child witness, or of a witness whose
evidence is that of an accomplice or of an
analogous character.
(3) Whether corroboration of the testimony
of a single witness is or is not necessary,
must depend upon the facts and circumstances
of each case and no general rule can be laid
down in a matter like this and much depends
upon the judicial discretion of the Judge
before whom the case comes.
11. In view of these considerations, we have
no hesitation in holding that the contention
that in a murder case, the court should
insist upon plurality of witnesses, is much
too broadly stated. Section 134 of the
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Evidence Act, has categorically laid it down
that 'no particular number of witnesses
shall, in any case, be required for the
proof of any fact'. The legislature
determined, as long ago as 1872, presumably
after due consideration of the pros and
cons, that it shall not be necessary for
proof or disproof of a fact, to call any
particular number of witnesses. In England,
both before and after the passing of the
Evidence Act, 1872, there have been a number
of statutes as set out in Sarkar's Law of
Evidence -- 9th Edn., at pp. 1100 and 1101,
forbidding convictions on the testimony of a
single witness. The Indian Legislature has
not insisted on laying down any such
exceptions to the general rule recognised in
Section 134 quoted above. The section
enshrines the well recognised maxim that
"Evidence has to be weighed and not
counted". Our Legislature has given
statutory recognition to the fact that
administration of justice may be hampered if
a particular number of witnesses were to be
insisted upon. It is not seldom that a crime
has been committed in the presence of only
one witness, leaving aside those cases which
are not of uncommon occurrence, where
determination of guilt depends entirely on
circumstantial evidence. If the legislature
were to insist upon plurality of witnesses,
cases where the testimony of a single
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witness only could be available in proof of
the crime, would go unpunished. It is here
that the discretion of the presiding Judge
comes into play. The matter thus must depend
upon the circumstances of each case and the
quality of the evidence of the single
witness whose testimony has to be either
accepted or rejected. If such a testimony is
found by the court to be entirely reliable,
there is no legal impediment to the
conviction of the accused person on such
proof. Even as the guilt of an accused
person may be proved by the testimony of a
single witness, the innocence of an accused
person may be established on the testimony
of a single witness, even though a
considerable number of witnesses may be
forthcoming to testify to the truth of the
case for the prosecution. Hence, in our
opinion, it is a sound and well-established
rule of law that the court is concerned with
the quality and not with the quantity of the
evidence necessary for proving or disproving
a fact. Generally speaking, oral testimony
in this context may be classified into three
categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly
unreliable.
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12. In the first category of proof, the
court should have no difficulty in coming to
its conclusion either way -- it may convict
or may acquit on the testimony of a single
witness, if it is found to be above reproach
or suspicion of interestedness, incompetence
or subornation. In the second category, the
court equally has no difficulty in coming to
its conclusion. It is in the third category
of cases, that the court has to be
circumspect and has to look for
corroboration in material particulars by
reliable testimony, direct or
circumstantial. There is another danger in
insisting on plurality of witnesses.
Irrespective of the quality of the oral
evidence of a single witness, if courts were
to insist on plurality of witnesses in proof
of any fact, they will be indirectly
encouraging subornation of witnesses.
Situations may arise and do arise where only
a single person is available to give
evidence in support of a disputed fact. The
court naturally has to weigh carefully such
a testimony and if it is satisfied that the
evidence is reliable and free from all
taints which tend to render oral testimony
open to suspicion, it becomes its duty to
act upon such testimony. The law reports
contain many precedents where the court had
to depend and act upon the testimony of a
single witness in support of the
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prosecution. There are exceptions to this
rule, for example, in cases of sexual
offences or of the testimony of an approver;
both these are cases in which the oral
testimony is, by its very nature, suspect,
being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court
to convict, if it is satisfied that the
testimony of a single witness is entirely
reliable. We have therefore, no reasons to
refuse to act upon the testimony of the
first witness, which is the only reliable
evidence in support of the prosecution."
35.2 In Javed Shaukat Ali Qureshi (supra), the
Hon'ble Supreme Court further held in paragraph
No.11, as under:
"11. The conviction of Accused 1, 5 and 13
was based only on the testimony of PW 25 and
PW 26. The test identification parade as
regards Accused 1 and 5 was not held, but as
regards Accused 13, the test identification
parade was conducted. While dealing with
appeals preferred by Accused 1, 5 and 13, in
para 5, this Court held thus:
"On a careful consideration of the
evidence adduced by PWs 25 and 26, we are
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left with serious doubt as to whether the
evidence of the said two witnesses should
inspire the confidence of the Court.
Identification of a total of 13 accused, who
were sent out for trial including present
appellants-accused, in a mob of 1000-1500
people is by no means an easy task. Over and
above that no test identification parade was
held so far as Accused 1 and 5 are
concerned. The prosecution has not offered
any explanation as to why no test
identification parade was held in respect of
A-1 and A-5 whereas a test identification
parade was held in respect of A-13."
36. Here in the present case, the charge by the
police was under section 435 IPC along with other
sections,and under prevention of damage to public
property act, and Bombay Police Act. Section 435
came to be invoked on the ground of damage to the
Government vehicle, ownership of which was with
the police. No documentary evidence was produced
on record to prove the vehicle as public
property. Document of ownership was also not
produced, whether motorbike was of the Police
Department, could not be found by the documentary
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evidence. The Panchnama only showed alpha letter
'G' and numerical figure eight '8'. Though, the
Panchnama noted the registration number of the
vehicle, no registration book was produced.
Police failed to produce Movement Register to
prove that motorbike and Gypsy vehicle were taken
to village Khoraj. The police, as a complainant
has to prove the actual fact of the incident and
has to describe the alleged act of the accused.
Mere statement that 'I had seen', would not
suffice, the police witness is not an ordinary
witness, even an ordinary person, standing in the
court of law has to describe the whole act, which
they allege to have seen.
36.1 While Police Officer as an eye witness to
the incident has greater responsibility to
explain in detail, the occurence. It would be
more, if that police witness is a complainant
himself, who would be interested to see the
success of his complaint. Deposition of such
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police personnel has to be weighed with much
greater care. The corroboration of such evidence
requires to be insisted.
36.2 Generally, Police Officer, who gives oral
testimony in Court explain their actions or what
they observed during an arrest, search or the
seizure of evidence. Such testimony of the
police, just like any other witness is subject to
assessment by the Court for trustworthiness, who
are subjected to cross-examination. Police
Officer testifying as a witness provides key
evidence to help the Court, understand the facts
and circumstances of the case. However, like any
other witness, the Police Officers testimony,
even as Investigating Officer will be evaluated
by the Court to determine the credibility.
36.3 Police as eye witness-complainant has
greater role to play. Police as complainant and
eye witness cannot make limited statement, as
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assisting the Court. His evidence has to be
evaluated as eye witness with knowledge of law
and procedure.
36.4 P.W.1 - Shri J.D. Brahmbhatt, as an eye
witness had noted in the complaint, Exh.21, that
they saw approximately 400 people of Patel
community gathered behind Ambaji Temple of Khoraj
village. The place of offence noted in the
panchnama, hardly had the capacity to hold 400
people, as alleged. It has been narrated in the
complaint that the named thirteen accused and
others had taken the leadership of the crowd and
were provoking the crowd of Patel's, who were
heading towards Rabarivas with sticks, pipes, and
stones, uttering "Sala Fokao Fati Gayal Che
Salaone Salgavi Do", the English rough
translation would be 'you wicked, you have become
overwise, set them on fire'.
36.5 The utterance was of setting the Rabaris on
fire, while no firing material or explosive
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substance or inflammable articles were in the
hands of the crowd.
36.6 P.W.1, as an eye witness has to explain as
to how the motorbike was set to fire without any
such fire material.
36.7 Police culture embraces testimonial lying
because the ends justify the means. Lying is
acceptable to the police, when it helps to ensure
conviction of people, police officer believes are
guilty. Systematic fabrication of evidence is
another aspect, which requires consideration of
the Court. Lying to evade judicial scrutiny about
the ways they gathered evidence is an acceptable
strategy to help convict people, they believe are
guilty. In this Police culture of testilying,
fairness, importance of truth and procedural
protection becomes crucial for the system of
justice. Police is not above the law.
36.8 In the case of Budhwa alias Ramcharan
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and Ors. v. State of M.P., 1991 Supp (1) SCC 9,
it was observed by the Hon'ble Supreme Court as
under:
"In the case of group rivalries and
enmities, there is a general tendency to
rope in as many persons as possible as
having participated in the assault by merely
naming them. The court, therefore, has in
all such cases to sift the evidence with
care.
36.9 In the case of Budhwa alias Ramcharan
(supra), the Hon'ble Supreme Court has observed,
as under:
"4....This Court has in several decisions
pointed out that "where there is enmity
between the two factions then there is a
tendency on the part of the aggrieved victim
to give an exaggerated version and to rope
in even innocent members of the opposite
faction in a criminal case and that
therefore the court has in all such cases to
sift the evidence with care and convict only
those persons against whom the prosecution
witnesses can be safely relied upon without
raising any element of doubt", vide Raghubir
Singh v. State of U.P. [(1972) 3 SCC 79 :
1972 SCC (Cri) 399 : AIR 1971 SC 2156].
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6. "Where an occurrence takes place
involving rival factions it is but
inevitable that the evidence would be of a
partisan nature. In such a situation to
reject the entire evidence on the sole
ground that it is interested is to shut
one's eyes to the realities of the rural
life in our country. It has to be borne in
mind that in such situation easy tendency to
involve as many persons of the opposite
faction as possible by merely naming them as
having been seen in the melee is a tendency
which is more often discernible and has to
be eschewed and, therefore, the evidence has
to be examined with utmost care and caution
and the court has to adopt a workable test
for being assured about the role attributed
to every accused" vide Muthu Naicker v.
State of Tamil Nadu [(1978) 4 SCC 385 : 1979
SCC (Cri) 14]."
37. In the present matter, the superior officer,
Deputy Superintendent of Police, Mr. Joshi has
not preferred to enter in the witness box. The
Investigating Officer does not state of recording
statement of Dy.S.P. Shri Joshi. In the crowd of
400 people, the damage to Dy.S.P. Gypsy vehicle
was assessed as of ₹3000/-. Evidence has been
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brought on record by the defence that the people
of Patel community on seeing the police at Khoraj
village had gone to the police for making a
representation, since accused No.13 - Bharatbhai,
sustained injury on that day. But, it appears
that no heed was paid to it. The defence had no
opportunity to cross-examine Dy.S.P. Shri Joshi.
The injured witness P.W.5 was serving at Adalaj
Police Station. He states of receiving injury in
the stone pelting by the Patel's. Though, being a
police and had the knowledge of going to Doctor
for treatment with police Yaadi, he failed to do
so. The complainant also alleges of being hurt
during the incident. The prosecution case is that
Dy.S.P. Shri Joshi was also hurt, but no medical
evidence has been produced to prove injury.
37.1 P.W.6 does not support the complainant,
naming accused Nos.1 to 3 as perpetrators of
mischief by Fire. P.W.6, blames the crowd of
setting the motorbike on fire, even P.W.7 blames
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the crowd, who had put the motorbike on fire,
P.W.8 is the driver of the Gypsy vehicle, who
also alleges that the damage to the vehicle was
done by the crowd and the crowd had burned
motorcycle Pulsar. P.W.9 is the person, who had
given the telephonic 'Wardhi', a person, Rabari
by caste, he has not uttered a word about the
incident.
37.2 P.W.10 - Poonambhai Patni is the police
witness, who had gone along with constable
Natubhai under the order of P.W.1 - J.D.
Brahmbhatt on the motorcycle. P.W.10 has not
given evidence, as to where he had parked the
motorbike. He was not taken to the place when his
statement was recorded by the police. P.W.10 has
not shown the place where the bike was parked.
According to his deposition, from the crowd,
three persons had pulled the knob of the Pulsar
motorbike and burned the bike. P.W.10 does not
testify as to when, how and where he had seen
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this incident of the vehicle, which was in his
custody, put on fire. He named the persons, who
were arrested stating that they had set the bike
on fire. Though, P.W.10 was present there he had
not shown the place of incident while drawing the
Panchnama Exh.26, which was drawn between 00.15
Hours to 1.15 Hours night on 08.04.2006. The
referred witnesses P.W.6, P.W.7, P.W.8 nor P.W.9
have supported P.W.10. The prosecution has failed
to prove the case beyond reasonable doubt. The
other police witnesses are not supporting the
complainant as well as witness P.W.10. P.W.9 is
the independent person of Rabari community, he
has not uttered anything about the incident, not
even of such incident being taken place. The
analysis of the evidence referred hereinabove
would prove that the police had gone with some
bias motive, where the suggestion was that the
telephonic 'Wardhi' was recorded on the
instruction of Shri Rabari Karamsinhbhai
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Devkaranbhai and with that instruction the police
force had headed towards Khoraj village. If all
the police witnesses in furtherance to the common
interest works uniformly, against the member of
one targeted community, then there are all
probabilities that the most interested person
may, taking two or three together can go for
deception of evidence. Such deception can be
caused even by withholding crucial information or
misrepresenting facts to create a false belief in
another party. Evidence can be deceived through
active measures, like making false statements or
passive measures such as ommitting relevant
details. The evidence of P.W.1 and P.W.10 are not
reliable. The enmity of two communities were
already to the notice of the police. The bias of
the police favouring one community has been
brought on record by the defence.
38. The police here, as complainant has acted
in a partisan way towards the Patel community.
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The attempt has been made by the police to draw
the case in a direction to secure conviction of
the accused being the member of Patel community.
Crucial facts have not been brought on record,
which was evident by way of the complaint by
accused No.13. The attempt of the police, as a
prosecution, maneoeuvering by not examining
persons from Rabari community, and the fact that
P.W.9 being from Rabari community has not deposed
of any such incident on 07.04.2006, though was a
person who states to have given the telephonic
'Wardhi' makes the police case doubtful. The
police witnesses are all interested witnesses and
therefore, those cannot be relied upon for
conviction. The conclusion by the Trial Court
Judge of convicting the present appellants would
thus, become erroneous,and no justification can
be attributed to the conclusion reached by the
Trial Court on the evidence of the police, which
does not disclose the direct involvement of the
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present appellants in the offence of mischief by
fire. The prosecution has failed to prove their
case.
39. In view of the above discussions and
observations, this Court is of the view that the
present appellants are entitled for benefit of
doubt and accordingly benefit of doubt is given
to the appellant.
40. Consequently, Criminal Appeal Nos.706 of
2007 and 724 of 2007 are allowed. The conviction
and sentence of the appellants-accused dated
03.04.2007 passed by the learned Sessions Judge
(Main Court) Gandhinagar in Sessions Case No.86
of 2006 is set aside. The appellants are
acquitted from all the charges. Bail bond stands
discharged. Registry is directed to send the
Record and Proceedings back to the concerned
Trial Court forthwith.
(GITA GOPI,J)
Pankaj/1
