[Cites 20, Cited by 0]
Gujarat High Court
State Of Gujarat vs Sajid Rabadi Hanif Jamal Shaikh on 10 December, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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R/CR.A/1079/2003 JUDGMENT DATED: 10/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1079 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SAJID RABADI HANIF JAMAL SHAIKH
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Appearance:
MR J K SHAH, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 10/12/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and
order of acquittal passed by the learned Sessions Court in the
proceedings arising from the FIR registered at Lunawada Police
Station for the offences punishable under Sections 143, 147, 148,
149, 120B, 188, 307, 332, 395 and 427 of the Indian Penal Code,
Section 3(1)(10) of the Atrocities Act, and Section 135 of the
Bombay Police Act. The appellant State has preferred the present
appeal under Section 378 of the Code of Criminal Procedure, 1973.
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2. The brief facts leading to the filing of the present appeal are
as under:
2.1. As per the prosecution case, on 02/03/2002, between 14:00 to
15:00 hours, in the locality of Lunawada Particular locality, a mob
of nearly 1000 unknown persons belonging to the Minority
community allegedly gathered and, without any authority, formed
an unlawful assembly. It is alleged that the mob, with the common
intention of committing riot and as part of a conspiracy, freely
pelted stones on the residential houses of Schedule Caste members
and used deadly weapons.
2.2. It is further the case of the complainant that during the
relevant date and time, curfew had been imposed in Lunawada by
the District Magistrate, Panchmahal, which the accused blatantly
violated. Despite the complainant and other witnesses performing
their lawful duties as government servants to maintain law and
order, the accused allegedly obstructed them, caused disturbances,
and damaged the houses of witnesses in Particular locality to the
extent of about Rs. 5,00,000/- by pelting stones. In addition, it is
alleged that the accused persons voluntarily attacked the
complainant and witnesses with deadly weapons such as swords,
attempted to kill them, and committed robbery of gold, silver
ornaments, utensils, etc. totaling Rs. 18,52,100/-.
2.3. The prosecution further alleges that the accused knew that
complainant side witnesses, including Kanubhai Gamirbhai and
others, belonged to Scheduled Caste and backward communities.
Despite such knowledge, the accused publicly abused them using
caste based derogatory terms. It is also alleged that during the
period when prohibitory notification under Section 37(1) of the
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Bombay Police Act was in force, the accused were found in
possession of deadly weapons like swords, dhariyas, knives and
stones.
3. After investigation, Lunawada Police Station filed charge-
sheet against the accused. The charges were read over and
explained to the accused, whose statements were recorded. The
accused denied all allegations. The prosecution thereafter led both
oral and documentary evidence, including testimonies of several
witnesses such as Chunilal Punjabhai Maliwad at Exh. 9
(Complainant), Prabhatsinh Ranchhodbhai Bamniya at Exh. 11,
Govindbhai Hirabhai Parmar at Exh. 12, Bhurabhai Kunvarji Barot
at Exh. 13, Mahendrakumar Chunilal Barot at Exh. 15,
Investigating Officer Shri R.F. Dabhi.
4. In the statement under Section 313 of the Code, the accused
denied every incriminating circumstance, contending that he has
no knowledge of any such incident on 02/03/2002, was not present
at the scene, and that his name was falsely implicated due to prior
disputes and biased investigation.
5. We have heard the learned APP for the appellant-State and
carefully examined the oral and documentary evidence produced
before the learned Sessions Court.
6. Learned APP Mr. J. K. Shah submitted that the learned
sessions Court has erred in acquitting the accused despite cogent
evidence demonstrating their participation in the unlawful
assembly, violation of curfew, stone-pelting, attacks with deadly
weapons, and caste-based atrocities. He argued that the
testimonies of the eyewitnesses fully support the prosecution
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version and are consistent with the material on record, with no
material omissions or contradictions. He argued that the
Investigating Officer and other material witnesses have
consistently established the involvement of the accused and
therefore, the judgment of acquittal deserves to be quashed and set
aside, and conviction should be recorded against the accused.
7. Heard the learned APP for the appellant - State and perused
the deposition of witnesses as also documentary evidence placed on
record as well as the order passed by the learned Sessions Court.
8. At the outset, if the main allegation in the aforesaid FIR is to
be examined, it is to the effect that on 02/03/2002 at about 14:00
hours, a mob of about 1,000 unknown persons armed with swords,
dhariyas and spears attacked Particular locality in Lunawada town
with the intention of committing atrocities on Scheduled Caste
persons, pelted stones at houses, buildings and shops, and shouted
"Maar Daalo Hinduon ko Kaapo, Islam Khatre Mein Hai". In order
to disperse the said mob, the complainant and other police
personnel lobbed tear-gas shells, carried out lathi-charge and fired
7 rounds. Investigation initiated pursuant to the aforesaid FIR, the
Investigating Officer recorded the statements of various persons
including police witnesses. During the course of the investigation,
it was alleged that the respondent-accused Sajid @ Rabdi was
present in the mob holding a sword. Thus, considering the above
stated facts, now the case of the prosecution is required to be
examined in consonance with the evidence recorded by the learned
sessions Court.
9. PW-1 Head Constable Chunilal Punjabhai Maliwad at Exh. 9,
the complainant has deposed that due to the Godhra train
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massacre, communal tension had arisen and while on bandobast
duty at Tirupati crossing, they saw a mob of about 1,000 persons
attacking Particular locality. As per the order of the Mamlatdar,
tear-gas shells were lobbed, lathi-charge was done and firing was
resorted to; he himself fired 7 rounds, after which the mob
dispersed. This witness has reiterated the contents of his complaint
and stated that the facts stated therein are true and correct. If the
evidence of this witness is examined, as per the complaint, the
complainant has not mentioned the name of any assailant
anywhere. The complainant further states that the mob consisted of
unknown persons. During the incident, the police had not
apprehended any individual. Considering the contents of the
complaint and the evidence of this witness does not indicate any
involvement of the accused in the commission of crime.
10. PW-2 Prabhatsinh Ranchhodbhai Bamaniya at Exh. 11 has
stated that on the day of the incident while on duty, a mob of about
1,000 unknown persons armed with swords, dhariyas and spears
attacked Particular locality, pelted stones and shouted provocative
slogans. Tear-gas shells were lobbed, firing was done and the mob
dispersed. He identified the accused Sajid @ Rabdi holding a sword
before he fled. However, the witness did not identify any other
person in the mob. He further stated that the mob consisted of
unknown persons and no one was apprehended at the spot. During
the Cross-examination of this witness, he has stated that
complainant-Chunilal Punjabhai Maliwad had informed him about
the presence of Sajid @ Rabdi armed with sword in the mob,
however has has not stated this fact in the complaint. Therefore his
evidence cannot be said to be reliable piece of evidence to rest the
case of the prosecution so as to acquit the Accused without there
being corroborative evidence which on the contrary appears to be
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of inconsistent nature.
11. PW-3 Govindbhai Hirabhai Parmar at Exh. 12 has stated that
he suffered injury from stone-pelting during the incident. The mob
of about 1,000 unknown persons attacked Particular locality, pelted
stones and shouted "Maar Daalo Hinduon ko Kaapo". Firing was
done on the instructions of the Mamlatdar and the mob dispersed.
He identified the accused Sajid @ Rabdi holding a sword. However,
he has not identified any other accused persons who were present
in the mob and therefore evidence of this witness is not reliable as
mere vogue statement without attributing specific role, no person
can be dragged.
12. PW-4 Bhurabhai Kuvarji Barot at Exh. 13 has stated that he
was called as a panch for the recovery of the sword. However, he
has not supported the prosecution case regarding the recovery of
the sword from the accused.
13. PW-5 Mahendrakumar Chunilal Barot at Exh. 15 who has
been examined and was cited as a panch witness for the discovery
of the sword, has stated before the Court that he was never called
to the police station, never went with the police at the house of the
accused, the accused never produced any sword from beneath the
roof tiles, and no panchnama was drawn in his presence. During
cross-examination, this witness has completely denied the recovery
panchnama. Thus, from the evidence of this witness, though he was
cited to prove the recovery of the sword, the credibility of the
recovery itself is doubtful and therefore the same has rightly been
discarded by the learned Sessions Court.
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14. If the evidence of the aforesaid police witnesses is further
evaluated, they have named the accused Sajid @ Rabdi and stated
that they identified him holding a sword. However, in a mob of
about one thousand unknown persons, it is not plausible that these
witnesses could have identified only one accused. The
circumstances stated by the witnesses show that identification
under such circumstance would be extremely difficult.
Furthermore, at the time of the incident, curfew was in force in
Lunawada town since the previous night, yet not a single person
from the mob was arrested for curfew violation. It is improbable
that in the same situation only the police witnesses could identify
the accused while none of the residents of Particular locality
identified anyone. Considering the version of these witnesses, they
could not have clearly seen who was exactly holding the kind of
weapon in a crowd of 1,000 persons. Moreover, the mob consisted
of about one thousand persons, whereas the witnesses assertion
that they could specifically identify the accused among such a large
mob is not believable in such circumstances.
15. All the panch witnesses to the panchnama drawn by the
Investigating Officer for recovery of the sword have turned hostile
and have not supported the case of the prosecution.
16. Thus, considering the evidence of the prosecution witnesses
adduced before the learned Sessions Court and considering the
case of the prosecution followed by the evaluation of the evidence
by the learned Special Judge, it appears that, having regard to the
overall facts, a mob of about 1,000 persons committed rioting in
Particular locality, Lunawada on 02/03/2002 in connection with the
Godhra Sabarmati Express incident and caused damage to houses
of Scheduled Caste persons. The incident occurred in broad
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daylight. Despite police claiming stone pelting and injuries, no
injury certificates or medical papers have been produced. It is true
that the incident is of a serious nature, however, it is not proved
that the accused had played any active role in the commission of
the said act. It is true that, in an offence of this nature, when a
charge under Section 149 of the IPC is levelled against the
accused, mere presence with the unlawful assembly may be
sufficient to hold him guilty. But, in the present case, no
independent witness has identified the accused as being present at
the time of the incident. There is no evidence explaining what role
the accused played or what weapon he was equipped with. As
discussed earlier, although police witnesses have deposed against
the accused, their testimony cannot be wholly relied upon,
particularly in view of the fact that in a mob of 1,000 unknown
persons, the accused alleged to have been identified is not possible
to accept without corroboration. Moreover, despite curfew being in
force, no arrests were made from the mob. Even according to the
police statements recorded immediately after the incident, the
accused holding a sword is not mentioned. The allegation of
possession of sword appears for the first time in court.
17. Upon perusing the panchnama of the scene of offence, it is
evident that some houses in Particular locality were damaged by
stone pelting. In connection with the massacre that occurred on 27-
02-2002 at Godhra Railway Station, widespread riots had taken
place across Gujarat. In that context, communal tension led to the
present offence, which appears to have been committed in a state
of emotional frenzy. The prosecution has completely failed to
establish the charges against the accused and the learned Special
Judge has rightly discarded the evidence in absence of any
independent corroboration.
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18. It is also pertinent to note that no direct evidence or
independent witness in support of the case of prosecution has come
on record and thus the entire case of the prosecution comes under
the shadow of doubt. Therefore, the conclusion arrived at by the
learned Special Judge and Additional Sessions Judge, Godhra on
30th April, 2003 acquitting the respondent-accused Sajid @ Rabdi
Hanif Jamal Shaikh does not warrant any interference in absence of
reliable evidence proved beyond reasonable doubt and therefore,
the order passed by the competent court is just and proper and in
our opinion, the same does not require any interference.
19. In view of the aforesaid, while applying the ratio and
propositions laid down by the Hon'ble Apex Court to the facts of
the present case, as held in Dhirubhai Bhailalbhai Chauhan &
Another v. State of Gujarat & Others read with Kirtibhai
Manibhai Patel & Others v. State of Gujarat [2025 INSC 381]:
"13. In cases of group clashes where a large number of
persons are involved, an onerous duty is cast upon the courts
to ensure that no innocent bystander is convicted and
deprived of his liberty. In such type of cases, the courts must
be circumspect and reluctant to rely upon the testimony of
witnesses who make general statements without specific
reference to the accused, or the role played by him. This is
so, because very often, particularly when the scene of crime
is a public place, out of curiosity, persons step out of their
home to witness as to what is happening around. Such
persons are no more than bystander though, to a witness,
they may appear to be a part of the unlawful assembly. Thus,
as a rule of caution and not a rule of law, where the evidence
on record establishes the fact that a large number of persons
were present, it may be safe to convict only those persons
against whom overt act is alleged. At times, in such cases,
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as a rule of caution and not a rule of law, the courts have
adopted a plurality test, that is, the conviction could be
sustained only if it is supported by a certain number of
witnesses who give a consistent account of the incident."
20. This Court may also refer to the decision of the Hon'ble
Apex Court in Rajesh Prasad v. State of Bihar and Another
[(2022) 3 SCC 471] encapsulated the legal position covering the
field after considering various earlier judgments and held as below:
"29. After referring to a catena of judgments, this Court
culled out the following general principles regarding the
powers of the appellate court while dealing with an appeal
against an order acquittal in the following words:
(Chandrappa case [Chandrappa v. State of Karnataka,
(2007) 4 SCC 415]
"42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the
court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
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the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court."
21. In the case of H.D. Sundara & Ors. v. State of Karnataka
[(2023) 9 SCC 581] the Hon'ble Apex Court has summarized the
principles governing the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section 378 of CrPC
as follows: -
"8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against
acquittal, is entitled to reappreciate the oral and
documentary evidence;
8.3. The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to
consider whether the view taken by the trial court is a
possible view which could have been taken on the basis of
the evidence on record;
8.4. If the view taken is a possible view, the appellate court
cannot overturn the order of acquittal on the ground that
another view was also possible; and
8.5. The appellate court can interfere with the order of
acquittal only if it comes to a finding that the only conclusion
which can be recorded on the basis of the evidence on record
was that the guilt of the accused was proved beyond a
reasonable doubt and no other conclusion was possible."
22. In light of the above legal position and for the reasons
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recorded in the foregoing paragraphs, coupled with the fact that
the case of the prosecution does not get support from the evidence
recorded by the learned sessions Court, the present appeal fail and
are accordingly dismissed. Records and Proceedings, if any, be
remitted to the Court concerned forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
Kaushal Rathod
