Gujarat High Court
Sachinbhai Hasmukhbhai Patel vs State Of Gujarat on 28 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1067 of 2006
With
R/CRIMINAL APPEAL NO. 1142 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
Approved for Reporting Yes No
√
==========================================================
SACHINBHAI HASMUKHBHAI PATEL & ANR.
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VIJAY PATEL for HL PATEL ADVOCATES(2034) for the Appellants in
CRA 1067/06
MR CHIRAG UPADHYAY for the Appellant in CRA 1142/06
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/07/2025
COMMON ORAL JUDGMENT
1. Criminal Appeal No.1067 of 2006 by accused No.2 and
8, and Criminal Appeal No.1142 of 2006 by accused
No.5, of Sessions Case No.23 of 2006 (Old Sessions
Case No.108 of 2005), challenges the judgment of
conviction and order of sentence dated 29.05.2006 by
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
the learned 1st Fast Track Court, Anand, where the
trial was conducted against nine accused, while
accused No.1, 2, 5 and 8 came to be convicted under
Section 143 of the Indian Penal Code (IPC) with one
month rigorous imprisonment and Rs.100/- fine and
in default of payment of fine, seven days simple
imprisonment, under Section 147 of the IPC, six
months rigorous imprisonment and Rs.100/- fine with
default stipulation of seven days simple imprisonment
and for the offences punishable under Section 436,
read with Section 149 of the IPC, sentenced to five
years rigorous imprisonment and fine of Rs.500/- and
in default, one month simple imprisonment.
1.1 Criminal Appeal No.1198 of 2006 got abated on
06.03.2020 since the appellant-accused No.1 (Alpesh
alias Chako Navinchandra Patel) died on 02.05.2009.
1.2 The sentences were to run concurrently and set off had
been granted under Section 428 of the Code of
Criminal Procedure, 1973 (hereinafter referred to in
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
short as 'Cr.P.C.'). The accused No.3, 4, 6, 7 and 9
were acquitted from the charge under Section 143,
147, 148, 149, 436, 457, 380 of IPC and Section 135 of
the Bombay Police Act, giving them benefit of doubt,
while the learned trial Court Judge did not find any
case under Section 147, 457 and 380 of the IPC and
under Section 135 of the BP Act against accused no.1,
2, 5 and 8, finding them guilty under Section 143, 147,
436 read with Section 149 of the IPC.
2. The charge below Exhibit 17 notes that all the nine
accused and the persons in the crowd, because of the
incident in regard to Ayodhya issue, on 01.03.2002
between 14.00 to 23.00 hours at Anand Lotia Bagod,
gathered in concert, for prosecution of common object
formed unlawful assembly and being the member of
unlawful assembly committed offence punishable
under Section 143 of the IPC.
2.1 All the accused and the persons in the crowd, for the
issue of the incident of Ayodhya on 01.03.2002, at the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
referred time of 14.00-23.00 hours and the referred
place of Anand Lotia Bagod assembled for the purpose
of prosecution of common object armed with the
instruments for setting fire, and with deadly weapons
formed unlawful assembly, and the members using
force committed riots punishable under Section 147 of
IPC.
2.2 At the referred time, place and date, all the accused
with a common object assembled, and by forming
unlawful assembly, armed with deadly weapons and
instruments to cause fire being the member of the
unlawful assembly, set complainant's and other
witnesses' shop on fire and thereby, committed the
offence under Section 436 read with Section 149 of
IPC.
2.3 At the referred time, place and date, all the accused
assembled, for the prosecution of the common object,
formed unlawful assembly, and with deadly weapons
and instruments to set fire, being the member of
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
unlawful assembly armed with deadly weapons broke
the shops of the complainant and other witnesses and
caused damage by committing theft of goods and
materials from the shop, therefore were charged for the
offences under Sections 457, 380 read with 149 of IPC.
Further, were also charged for the breach of
notification of the District Magistrate under Section
135 of the Bombay Police Act.
2.4 The charge was framed on 02.01.2006. Thereafter on
06.02.2006, the learned trial Court Judge raised the
charge under Section 148 of IPC alleging riots with the
deadly weapons.
3. Learned advocate Mr. Vijay Patel for the appellants of
Criminal Appeal 1067 of 2006, also appearing for
learned advocate Mr. Chirag Upadhyay in Criminal
Appeal No.1142 of 2006, submitted that the conviction
of the appellants is absolutely illegal and contrary to
law and evidence on record. Learned advocate Mr.
Vijay Patel contended that the conviction is contrary to
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
the principles of criminal jurisprudence and thus, is
liable to be quashed and set aside. It is further
submitted that the learned Judge has not rightly
appreciated the documentary and oral evidence on
record for convicting the appellants. It is contended
that no panch witnesses have supported the case of
the prosecution, nor there are independent witnesses
to the alleged offence, and further, stated that the
Investigating Agency has failed to conduct Test
Identification Parade (TIP), and in absence of TIP, the
dock identification of the accused persons by the
witnesses would become highly doubtful, more so,
when none has been named in the FIR.
3.1 Referring to the facts of the case and to the testimony
of the witnesses, learned advocate Mr. Vijay Patel
submitted that PW3-Irfan Yusuf Vohra deposed that he
had seen the accused person in the mob on
01.03.2002 and on the very same day, he met another
witness PW2-Liyakat Karim Vohra and gives the details
of the incident, but the said person does not name the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
present appellants, nor gives FIR, before police.
3.2 Learned advocate Mr. Vijay Patel contends that the
complaint was lodged with Anand Town Police Station
on 02.03.2002 by police, while the statement of these
witnesses were recorded on 17.03.2002. The delay in
recording the statement, with the alleged complaint,
gives scope for false implication, and the complaint
itself suggests that the appellants have been named in
the charge-sheet with a view to harass them, since no
connection could be shown of the accused to the
crime.
3.3 Referring to the deposition of PW14-Mohammedbhai
Jamalbhai, submitted that though the witness was
with PW3, he has clearly deposed, that he had not
seen any of the accused persons in the mob, he has
not identified the accused and in his deposition, it
becomes clear, that the spot from where he had seen
the incident, is very far from the place of incident and
therefore, it is submitted that the case of the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
prosecution becomes unbelievable and therefore too,
the judgment and order is liable to be set aside.
3.4 Referring to PW2 and PW3, learned advocate Mr. Vijay
Patel submitted that both are interested persons, they
are related to each other, as brothers-in-law, and
though PW2 states that his PW14-Uncle and PW3-
brother-in-law after returning from his shop, had
informed him about the names of the person who were
present, learned advocate Mr. Vijay Patel submitted,
that those names are not related to the names of the
present appellants, and subsequently a case has been
drawn against the accused to falsely implicate them in
the alleged offences.
3.5 Learned advocate Mr. Vijay Patel has referred to the
decisions in the cases of Ali Molah and Another v.
State of West Bengal reported in (1996) 5 SCC 369 and
Girishbhai Mohanbhai Sharma v. State of Gujarat in
Criminal Appeal No.132 of 2004 to contend that
conviction cannot be based on uncorroborated
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
testimony of eye witness and that the evidence of eye
witness if not corroborated cannot be relied upon.
3.6 For the conviction under Section 149 of the IPC,
learned advocate Mr. Vijay Patel referring to the
decisions in the cases of K. Nagamalleswara Rao v.
State of Andhra Pradesh reported in 1991 (2) SCC 532
and Amar Singh v. State of Punjab and Haryana
reported in 1987 (1) SCC 678 submitted that no
conviction could follow if the persons convicted are less
than five.
3.7 Further, in connection with the provision of Section
313 of Cr.P.C., Mr. Vijay Patel raised an issue that if
the incriminating circumstances against the accused
are not put to the accused for clarification, such
circumstances cannot be used to convict them and
such circumstances are required to be excluded from
consideration. For that purpose, he relied on the
decisions in the cases of Kanhai Mishra @ Kanhaiya
Misra v. State of Bihar reported in 2001 (3) SCC 451,
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Harijan Magha Jesha v. State of Gujarat in Criminal
Appeal No.135 of 1973 and Sujit Biswas v. State of
Assam in Criminal Appeal No.1323 of 2011.
3.8 For the failure to conduct TIP, learned advocate Mr.
Vijay Patel submitted that it would become fatal in a
riot case, and dock identification, first time in the
Court, would not be evidence safe to rely upon and
therefore benefit of doubt should be given, and thus
submitted that it cannot be considered that the case
has been proved beyond reasonable doubt. For that
purpose, learned advocate Mr. Vijay Patel relied upon
the decisions in the cases of P. Sasikumar v. State
Rep. by the Inspector of Police in SLP (Criminal)
No.2756 of 2019, Vishwanatha v. State of Karnataka in
Criminal Appeal No.192 of 2012, Wahid v. State Govt
of NCT of Delhi in Criminal Appeal No.201 of 2020 and
Randeep Singh @ Rana and Anr. V. State of Haryana
and Others in Criminal Appeal No.297 of 2024.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
4. Per contra, learned Additional Public Prosecutor Ms.
Monali Bhatt taking this Court through the deposition
of all the witnesses and more specifically, PW2, PW3
and PW14 read with the evidence of PW5-police
complainant, PW12-police witness, PW13-Investigating
Officer, submitted that even if one person could
identify the rioters, then there would not be any
necessity to bring extraordinary evidence on record to
prove the offence. It is further submitted that the PW3
is the eye witness to the incident whose testimony gets
corroborated by the evidence of PW14, then in that
case, TIP would not be necessary to corroborate the
version of the eye witness. It is also submitted that
the learned trial Court Judge has analysed the
evidence, and minutely observing the evidence has
convicted four accused out of nine and all of the
accused were members of unlawful assembly hence,
are convicted for the offence.
5. Having heard both the learned advocates, perused the
record. The testimony of the complainant-
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Parakramsinh Keshubhai Rana as PW5 at Exhibit 38
would note that he was at his duty at Anand Town
Police Station on 01.03.2002, there was
announcement of Bharat Bandh. He alongwith Police
Constable Ratansinh and other staff members were on
patrolling. During that period from control room and
from PSO, he received a Vardi to reach Vadod Village
for providing bandobast. They returned to Anand
Town Police Station and as per the instructions of the
higher officer, they were in patrolling at a sensitive
area of Lotia Bagod Chowki. During that period, they
received a Vardi from control room informing that
people have gathered near Gamdivad and were setting
the shops on fire, therefore, they went to the place with
their requisite mobile and saw two peanut shops on
fire. The mob had put the shops on fire and according
to the witness, the mob fled away from the place so
they could not recognise them.
5.1 Thereafter, through control room, they processed to
call the Fire Brigade. As per the witness, they were in a
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
meeting with the representatives of the people.
Immediately thereafter, at Sardarganj, near three
shops opposite to People's Bank, the mob had gathered
and out of them, some had ablazed the shops, who all,
seeing the police fled away from the place.
5.2 Thereafter, on Station Road, shops near Gopal Cross
Roads were set on fire. As per the witness, the mob
had deadly weapons with them. They were breaking
the shutters of shops, on seeing the police, they too
ran away; at the place they saw burnt goods and
materials, so called the Fire Brigade through Control
Room.
5.3 Thereafter, proceeding in patrolling towards Gamdivad,
they saw a mob putting a stall, on the road opposite
the Nagar Palika Office, on fire and also beside that, a
peanut cart was put on fire. Witness stated that
seeing the police, the mob ran away.
5.4 Thereafter, as per the witness on Hardgud Road,
Opposite Agriculture Campus, a stall was set on fire.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Receiving the information, they reached there and
found that the crowd had burnt the stall. The incident
occurred between 14.00-23.00 hours, he gave the
complaint on behalf of the State. Identifying his
signature, he produced the complaint at Exhibit 39.
6. As per the deposition of this witness-PW5 on
03.03.2002, between 8.00-10.45 hours, the
panchnama was drawn in presence of two panchas
describing all the places. The police complainant
identifying his signature on the panchnama and that
of panch placed it, at Exhibit 40. The complaint was
sent for registration and after the panchnama, the
investigation was handed over to Keshubhai Rambhai
Bhuva. In the cross examination, PW5 stated that on
01.03.2002, there was announcement of Bharat
Bandh, he could not recollect that on that day there
was curfew in Anand, but affirmed that wherever there
were Hindu and Muslim population, bandobast was
arranged. The complaint at Exhibit 39 refers to
unlawful assembly and the offence of arson with
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
deadly weapons and damage in furtherance of a
common intention. The complaint, referred the
witnesses, would be shop owners, and reliance would
be on the evidence of damages and police personnel.
7. Panchnama at Exhibit 40 refers to PW9-Husain Shafi
Mohammed Shaikh who had shown his peanut shop.
The panchnama of the place known as Shabbir
Brother Kachwala and Company, was shown by PW6-
Isuf Saleh. Irfan Store was identified by one
Fakruddin Irfanbhai Vohra. Then the condition of the
shop of Rasoolbhai was recorded. He was not present
at the time of panchnama. PW7-Abdul Rashid Haji
Rasool Vohra showed the peanut shop of Gulam
Rasool Jamal. Near Sankalp Complex on the Ground
Floor, the door of Everest Auto Electric Works was
found burnt, the owner was not present. The tea and
snack stall was also burnt, the owner was not found at
the place.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
7.1 On the same ground floor, south facing was Shop
No.G/8 of M/s. Sagar Auto Consultants. The furniture
was burnt, the owner was not present, therefore, the
damages could not be known. Further, Shop No.5/6
was burnt and they found ashes there.
7.2 Shop No.5 named as 'Charotar Oil' was found to be
damaged, the plaster was broken, the owner was not
present there to find about the damages. Here it is
required, to make a mention, that this is the shop of
PW2.
7.3 The panchnama further notes that the damage was
also caused to Super Computer Class, the glasses of
the office were broken, there was damage to computers
and other computer parts. The witness-Riteshbhai
Navsibhai Patel assessed the damage to be of
Rs.4,00,000/- to Rs.5,00,000/-. The panchnama
further refers to the stall opposite Nagar Palika Bhavan
which was selling peanuts. In Patel Plastic and
Readymade Stores, the lock of the shutter was broken
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
and the clothes were found scattered. Moving ahead at
Borsad Chowkdi Khada, they found south facing
houses of Bharwad community, the doors of the
houses were found broken with the damages to the
bricks and also the iron roof top were found stolen and
the doors of the bathroom were broken. Hamidaben,
the wife of Alinubhai assessed the damage as of
Rs.25,000/-. The panchnama further, records a cycle
repairing cabin burnt near the wall of Government
Godown. The damages were assessed by Diwan Sultan
Shah and Subasha of Rs.15,000/-.
8. PW12-Kamubhai Sajabhai is the police witness
examined during the trial, who in the year 2002, was
serving at Anand Town Police Station. According to his
deposition on 01.03.2002 he alongwith Rana Saheb
had gone to Lotia Bhagod in the requisite mobile van
and according to the witness, he and police constable
Ratansinh were on patrolling at Lotia Bhagod Chowky
on 01.03.2002 because of Bharat Bandh
announcement on account of the assault on Godhra
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Ramsevaks. During that time from the control room,
he received a message of reaching Lotia Bhagod for
bandobast with the police personnel of mobile Vadod.
The police after the bandobast continued with the
patrolling at Lotia Bhagod Chowky area.
8.1 According to PW12 during that period, when they were
patrolling in Lotia Bhagod Chowky area, they received
a message that a crowd has gathered near Gamdivad,
therefore with the requisite mobile along with PW5-
PSI-Rana they had gone there, at that time, the shop of
Shabbir Kachwala and a peanut shop and a shop
beside it were on fire, and according to the witness, the
materials from the shop were taken away by the crowd,
and stated that the mob had fled away, and that they
could not recognize them. Thereafter, PSI-Rana
through control by V.H.F. called the Fire Brigade, and
the process of dousing the fire was undertaken.
During that period, while they were on patrolling near
Sardar Ganj, they saw shops on fire opposite People's
Bank, and on enquiry, they saw three shops set on
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
fire. The witness stated that Shri. Rana sent a wireless
message to the Fire Brigade and thereafter, continued
with the patrolling. In between at Gopal Cross Roads,
the crowd with deadly weapons were breaking the
shops and on seeing the requisite mobile, the mob ran
away and therefore, could not identify anyone. While
enquiring, it was found that Patel Readymade Stores
was set on fire. The process for extinguishing the fire
was carried out and thereafter, while going towards
Gamdivad, they saw a stall opposite Nagar Palika
Office set on fire.
8.2 PW12, as was not at Anand, could not say that on
01.03.2002 there was curfew there, but stated that
there was announcement of Bharat Bandh on that day
in connection with the event of Sabarmati Express,
which was burnt at Godhra on 27.02.2002. The
witness could not state whether there was police
bandobast in the Hindu and Muslim population area of
Anand.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
8.3 PW12 was made to refer the statement of PW3-Irfan
Yusuf Vohra, which he denied of recording it. He
stated that he found the statement in the documents
which he received. He affirmed that in the statement it
was recorded that on bike, he and his Uncle could not
go to the Shop as there was curfew and they had gone
to a lane of Ceat Shop through Amul Diary Road.
PW12 stated that in the statement before the police it
is noted that the sabotage of shop was in progress. But
he affirmed that the witness has not stated, that there
were cans and buckets of 5 litres oil, which were
thrown out and there was attempt to burn and
thereafter, fire was set, which was dangerous. He also
affirmed that the witness has not stated that
thereafter, the public started scattering and people
from Sankalp Complex and Super Computers had
come there. It was not recorded in the statement that
attempts were being made to remove the public and
fire brigade people were called, the fire could not be
controlled and everything was burnt. The oil which
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
was thrown out was looted. It was also not recorded in
the statement that he had informed the family
members about the incident.
8.4 PW12 police witness had corroborated the statement of
complainant PW5 with regard to patrolling, and
incident of arson at various places, there were mobs at
the recorded places, on seeing their requisite mobile
vans, the mob fleeing away from the place and
therefore, the witness could not identify the arsonists.
The evidence of this witness has brought corroboration
and even contradictions in the deposition of PW3.
9. The person whose shops, stalls and carts were
damaged, and those whose damages were noted in the
Panchnama Exhibit 40, few were examined as
witnesses during the trial.
9.1 PW4-Imtiaz Uddin Fakhruddin Kazi was having the
business of poultry. At the time of the incident, he
was at his poultry farm, his 'Best Chicken Shop' is at
Borsad Cross Road. He has no knowledge of the date of
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
incident. The shop was run by two-three men. The
person working in his shop told him that the shop was
broken and looted, and nothing had remained in the
shop. The witness assessed the damage to his shop of
Rs.40,000/- to Rs.60,000/-. He had a scooter. He
came to know later on that someone had caused the
damage, but had not known of any fire, even later. His
scooter was safe, it was not burned.
9.1.1 So this witness is not eye witness to the incident. His
estimate for the damages are not supported by any
documentary evidence. His employee who informed
him of vandalism has not been examined as a witness.
So the present witness had not heard of damage by
fire. He is not the person who could connect the
present accused with the incident.
10. In the same way PW6, PW7,PW8, PW9, PW 10 and PW
11 as owner of shops all have given estimate of
damages to their property.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
10.1 PW6 - Yusufji Saalebhai Rana's business in Glasses
was in the name of Sabir Brothers and Kachwala
company. He came to know about the incident on
06.03.2002. He came to know about the damage to his
shop through the police. Thereafter he had not gone to
his shop to enquire. He has no knowledge about the
damage to his shop.
10.1.1 This witness does not have any knowledge. He has not
even stated of any damage to his shop.
10.2 PW7-Abdul Karim Hazir Solbhai Vora. He has his
business at Samarth Cross Road. At the time of
incident he was having his office and shop in the name
of Messrs Rasool Bhai Haji Bawa and Lovely Agency,
Opposite Old Ramji Temple, Anand Gamdiwad. He
assessed the damages of Rs.70,000/- for the theft of
utensils and damage to his office. He stated in his
deposition that he has no knowledge of the persons
who caused it.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
10.2.1 This witness could only say about the damages while
has no knowledge to connect the accused to the Crime.
10.3 PW8-Mohammed Nisar Ibrahim Bhai Saudagar, had a
peanut shop opposite Anand municipality at Anand
Sardar Ganj area. He stated that the incident had
occurred during the time of Godhra incident. Because
of the Gujarat Bandh announcement, he was at home,
at that time his shop was burned. He sustained the
damages of approximately Rs.35,000/-. He does not
know who caused the damage.
10.3.1 This witness too could not say about any incident to
connect the accused. Except the evidence of damage in
the incident and of evidence of damages, nothing more
has been stated by this witness.
10.4 PW9-Hussain Bhai Shafi Mohammedbhai Shaikh also
was running a peanut shop at Gamdiwad. He states
that there was mischief. His peanut shop,'Amit Sing
Dana' was looted and burnt. He estimated the
damages as Rs.1,50,000./- He is not aware of the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
person who has caused the damage.
10.4.1 The evidence of this witness is not of much support to
the prosecution.
10.5 PW10-Haji Ali Yakub Ali Syed was declared hostile. He
was having a shop of Auto Consultant beside Indo
Africa Hall. He states that the incident had happened
on 01.03.2002. He doesn't know anything about the
incident, and at six in the evening, he came to know
that his shop was burnt. Since it was curfew, he could
not visit his shop. The damage to his shop was of
Rs.40,000/- to Rs.50,000/-.
10.5.1 The evidence of this hostile witness is not of much
support to the prosecution.
10.6 PW11-Yaseinbhai Haji Amadbhai had his business in
the name of Everest, Auto Electrical Works, Opposite
Indo Africa Hall, Sardar Ganj. The witness stated that
it was Friday and the incident was of 1-3-2002. he had
not opened his shop because of Bharat bandh
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
announcement. In the afternoon, he came to know that
the material of his shop were looted. The shop inside
was burned and the old tyres were also put on fire.
After 15 days, he had come to his shop, he saw the
shutters open. There were ashes inside and burnt
tyres. Approximately the damages was of rupees 3
lakhs. He stated that he does not recollect of having
received names through the news.
10.6.1 This witness has also not named the accused. The
facts of the shop being burned, assessment of the
damages has been deposed.
11. PW13 is the Investigating Officer Keshubhai Rambhai
Bhuva at Exhibit 48. He on 27.02.2002 was
entrusted the investigation from Police Inspector P.R.
Bhatt in connection to C.R. No.91 of 2002 of Anand
Town Police Station. The accused No.5, 6 and 9 were
under anticipatory bail and thereafter, he filed charge-
sheet against all the accused. He received the copy of
the proclamation under Section 37(1) of the Bombay
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Police Act, 1951 which he produced on record at
Exhibit 59. As per his deposition, the Police Inspector
Mr. P.R. Bhatt, being deceased, since he had worked
with him, recognizing his signature in Exhibit 50, the
witness stated that requisition was sent to the learned
Judicial Magistrate First Class, Anand to invoke
Sections 436, 454, 457, 380, 427 and 188 of IPC.
11.1 The Investigating Officer identified three accused
whom he had arrested. In the cross examination, it is
stated that he had received the information, that
opposite the Agriculture Campus, there was fire, and
on enquiry, they found that a cabin was burnt, all the
shops and stalls were burnt by the mob. PSI-
Parakramsinh Kesubha Rana had given a complaint on
behalf of the Government against the mob. In the
cross examination, he affirms that during the
patrolling, they had not arrested any accused.
12. The complainant-PW5, PW12-police witness and
PW13- Investigating Officer, none of them could state
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
about the saboteurs. Nor the police witnesses had
given evidence about those engaged in the sabotage as
described by them. These police witnesses have not
named the present accused. The complaint Exhibit 39
by PW5-Parakramsinh Keshubha Rana notes that it
was against people in crowd who had formed unlawful
assembly on Ayodhya issue, armed with deadly
weapons had caused destruction and in furtherance of
common object ablazed different places.
13. Panch witness-PW1-Arifbhai Mohammedbhai
Shafibhai Vohra had not supported the panchnama
dated 03.03.2002 and it was stated that he was called
at the police chowky of Anand Town Police. He
identified the signatures at Mark 27/4 and denied of
any panchnama executed by the police.
14. The only evidence that remains now, which had been
relied on by the learned trial Court Judge is of PW3,
with the supporting evidence of PW14 and PW2.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
15. PW2-Liyakatbhai Karimbhai Vohra is not the eye
witness, but is the complainant by way of Exhibit 35,
which he states was given to Anand Town Police P.I.,
Anand Town Police Station, Anand. Exhibit 35 does
not bear the date of complaint. It is not the case of
PW5-the complainant Shri Rana, of having received the
application in the form of complaint. It is also not the
case of PW5-the complainant, that based on the
application Exhibit 35, the investigation was
conducted. PW5-the complainant Parakramsinh
Keshubhai Rana P.S.I. Anand Town Police Station gave
his complaint on 02.03.2002, there is reference of the
store 'Charotar Oil', Shop No.5 in the panchnama
drawn on 03.03.2002, but at the time of the
panchnama, the owner of the shop PW2 was not
present there, the damage was to the plaster of the
wall. Shop number 5 and 6 got blackened and there
were ashes, while no further damage has been
recorded in the panchnama for the shop of PW2. PW2
though being the owner of the business, is not the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
person who is personally running the business. In
Sankalp Complex, he is having his shop named
'Charotar Oil', Opposite People's Bank. Shop No.5 of
his ownership was running the business of
lubricating oil. He deposed that he opens his shop at
8.00 in the morning and closes at 7.30 in the evening.
15.1 Referring to the incident of Friday-01.03.2002, the
witness PW2 stated that because of the riots, since the
last three days, he had not opened his shop. The shop
contained files, papers and cash, and the management
of the shop was with his brother-in-law. According to
this witness, his brother-in-law and he himself had
gone to procure files, paper and cash. He further
improvises stating that he had not gone to the shop.
His uncle-PW14-Mohammedbhai Jamalbhai and his
PW3-brother-in-law had gone to the shop. The
evidence of this witness is not of an eye witness,
though he states that he had gone alongwith his
brother-in-law to recover the files, paper and cash, he,
in the same breath, says that it was not him, but his
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
uncle and brother-in-law.
15.2 When PW3 and PW14 returned back, they informed
PW2 that the shop was burnt and there was nothing
there. His brother-in-law and uncle came, and had
informed him. They had given certain names, which
were, Chako, Mitul, Dhobhi, Rinku and he had written
down the names of five persons. Over and above,
there were other persons.
15.3 During the trial, he has given four names, as Chako,
Mitul, Dhobhi and Rinku, meaning thereby that PW3
and PW14 had named only four persons. How are
these four, associated with the nine accused arrayed in
the trial becomes an essential aspect to be considered .
The witness further states that PW3 and PW14 gave
the five names in writing. As per PW2, all these people
had vandalised his shop and had set it on fire. After
some time, he had gone to the Town Police Station and
had given in writing the details of the incident. He
identified his typed application-Mark 27/2, which was
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
produced in evidence at Exhibit 35. The charge-sheet
refers to this witness, as witness No.6 but does not
refer to the complaint Exhibit 35. Mark 27 is the list
of documents produced by the learned Public
Prosecutor, the reference at Mark 27/2 is of this
application given by the witness. There is no evidence
of Exhibit 35 being received by Anand Town P.I. There
is no endorsement of inward number nor any seal or
stamp of the Police Station. Whether this application
was actually given to the police does not become clear.
The said application does not bear the date. The
requisition of Police Inspector at Exhibit 50 dated
09.03.2002 addressing the learned Judicial Magistrate
First Class, Anand to add Sections 436, 454, 457, 380,
427 and 188 of IPC in the complaint of Anand Town
Police Station as I-C.R. No.91 of 2002 which is dated
09.03.2002, does not refer to the complaint application
Exhibit 35. Further police had not drawn any
panchnama accepting Ex. 35 of PW 2.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
16. The charge-sheet was received by the Court on
07.03.2003. The complaint at Exhibit 35, since does
not bear the endorsement of the receipt of the police,
how it came in the custody of learned Public
Prosecutor to place it under the List at Exhibit 27, to
consider it as a valid document, becomes a
questionable fact. Though no such question has been
raised by the defence lawyer in the cross examination,
but the witness denied the suggestion that the same
was prepared by a lawyer. The witness PW2 in the
cross examination said that he has no personal
knowledge about the incident, and from where he got
the application-Exhibit 35 typed. In view of the
ignorance shown by the witness, it further becomes
questionable as to how this document-Exhibit 35 was
entertained during the trial. According to this witness,
the sections of IPC as noted in the complaint, were
dictated by his Uncle and he affirmed that details in
Exhibit 35, were given by his uncle and brother-in-law-
Irfan. PW2 deposition of giving Ex.35 to Anand Police
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
does not get the corroboration from the Anand Town
Police P.S.I. The document at Exhibit 35 shows the
copy to have been forwarded to P.I. Anand, DSP
Anand, I.G. Anand and Home Minister Gujarat. The
witness had not produced any endorsement from any
other Department or any postal acknowledgment slip
of sending his complaint to different Departments. His
deposition states that there were some files and cash
in the shop, while in the details of damages at Exhibit
35, referring to his establishment as 'Charotar Oil', the
description are :- (i) Castrol, Veedol, Gulf, Indomix,
Mico Company Oil - 20 litres, 10 litres bucket, drum
seal packed (ii) Revolving chairs-2 , Table-2, Cordless
telephone-2, Fans-2, Aluminum cabin rack for goods-4
and Showcase-1. The witness has stated that police
had recorded his statement. He is not stating that
during his statement before the Police, he had
informed about Exhibit 35 being given to the Anand
Town P.I. and the copy were sent to different
authorities.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
17. In the deposition, the witness-PW2 stated that he
could identify few of the persons he had named.
Before the Court, he could know Alpesh Chako and
Dhobhi, and the rest, he could not identify. The
witness in the deposition could identify Alpesh Chako
and accused-Neelkanth as Dhobhi. He further stated
that he would know the accused but could not identify
them by names. He assessed the damages of his shop
to be of Rs.5,50,000/-.
17.1 In the cross examination, this witness PW2 states that
he does not know the fact, that at the time of the
incident, accused No.1-Alpesh was a member of the
Anand Nagar Palika, but further stated that presently
he was a member. The six names given by uncle and
brother-in-law, whether those were residents of Anand
or not, he does not know, and he states that he did not
have any personal talk with accused No.1-Alpesh and
the one whom he has referred to as Dhobhi. He denied
the suggestion that his uncle gave false names and on
that basis, a false complaint has been given.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
18. PW2's application Exhibit 35, was according to him, as
instructed by his brother-in-law and uncle. He
himself had not seen any of the accused at the place of
incident, since he is not an eye witness. How he could
identify two of the accused, one as Alpesh Chako and
another as Dhobhi as Neelkanth. His act of
identification itself clears, that he identified Accused
Alpesh Chako as he was member of Anand Nagar
Palika. Neelkanth could have been known to the
witness as he was Dhobhi. The PW2 has not
identified any other accused in the Court, though he
had named six in the application Exhibit 35, as No.1
Sachin (father's name not known), No.2 Rinku Patel
(father's name not known), No.3 Alpesh alias Chako
(father's name not known, Anand Municipal Councillor
aged about 35, residence: Anand), No.4 Ashok
Banarasi alias Kodilo (father's name not known,
profession business, aged about 35 years, residence
Anand), No.5, Vipul Patel (father's name not known,
profession Khaman Shop at Gamdivade, aged about 35
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
years, residence Anand), No.6 Mitesh Dhobhi and
other 5 to 7 persons whom witnesses could identify on
scene. The complaint-Exhibit 35 is with the subject
IPC Sections 147, 148, 149, 436, 395, 398 etc.
18.1 The witness though states that the name of the
accused noted in Exhibit 35 were given by the
brother-in-law and uncle, Exhibit 35 has not been
identified and affirmed by PW3 and PW14, the brother-
in-law and the uncle. The witness PW2 was informed
about the incident on the very same day, but he had
not given any FIR. It appears that this application
Exhibit 35 has been brought to claim damages where
according to the witness, he sustained damage of
Rs.5,50,000/- while the panchnama which was drawn
by the police of various places, as referred
hereinabove, under Exhibit 40 does not mark any
pilferage or even theft in the witness shop. The
damage has been noted of the shop, with the only
mention of breakage of plaster and blackening of shop.
The panchnama of various places were drawn, but
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
nothing is recorded of shop owner no.5 'Charotar Oil'
being burnt with the oil of the shop. PW2 being the
owner of the shop is not referring to any oil buckets or
drums or oil cans, in his deposition. He only refers to
files, papers and cash. The witness has not even
verified prior to giving application-Exhibit 35 about
those names cited in the application, whether they
were resident of Anand or not. He has affirmed in the
cross examination that he was personally knowing
accused No.1-Alpesh and the accused-Dhobhi.
19. PW2 has distanced himself in giving any evidence with
regard to the contents of Exhibit 35 and had referred
to his damages of Rs.5,50,000/- to his shop. The
identification of accused in the court is not on account
of his own version. He is not the eye-witness.
20. In the panchnama at Exhibit 40,as becomes noticeable
the amount of damages had been assessed by the
panchas, however, no such mention is made about the
loss to witness-PW2. There is no independent
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
panchnama of his Shop No.5 'Charotar Oil'. It has not
come on record that after receiving Exhibit 35, the
police had drawn any panchnama of the shop of PW2.
21. The witness-PW2 had affirmed that it was his uncle
and brother-in-law who had informed him about the
incident and had given the names of the persons
involved. The uncle at PW14- Mohammedbhai
Jamalbhai, his deposition is of what he saw for about
2 days, i.e on the day of the incident, 01.03.2002, and
the day next 02.03.2002. He at the time of the
incident, and also at the time of deposition was staying
Anand Polson Diary. He stated that he knows PW2-
Liaquatbhai Haji Karimbhai. He is the younger
brother-in-law of his daughter, who has his business
as 'Charotar Oil' at Sardarganj. He also stated that he
knows PW3-Irfan Yusuf Vohra, who is the brother-in-
law of PW2. The witness stated that Irfanbhai is an
employee at 'Charotar Oil'.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
21.1 On 01.03.2002, Friday, PW3-Irfanbhai came to call
him at about 2.30, who informed him, that people were
vandalizing and looting, he was asked to join,
therefore, witness PW14 and PW3 went together, they
stood little away from Bharat Tyre at Sardargunj.
PW14 stated that they saw the crowd of 100-150
people, some were burning, while some persons were
engaged in extinguishing the fire. They waited there
for about half to one hour.
22. So as per the deposition of PW14, they had not gone at
their shop, nor near their shop. They were waiting
little far from Bharat Tyres. From there, they could see
the mob. According to the witness, some of them were
setting fire, while some were extinguishing the fire.
They stood there for more than half an hour. The
witness could not identify any person from the crowd.
He has not stated or named any of them as recorded in
Exhibit 35, though according to PW2, it was this Uncle
who had given them the names. However, the evidence
clarifies that all the persons in the crowd were not
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
responsible for the arson, few of them were
extinguishing the fire.
22.1 The witness further states that on the next day, when
they visited the shop, they saw that, nothing remained.
However, the witness could state that the bill books
came in their hand and thereafter, they returned home
and informed PW2. So the evidence of this witness if
observed minutely, would clarify that on 01.03.2002,
he had not informed anything to PW2-Liyakatbhai
Vohra. On 01.03.2002, he had not seen any accused
in the mob whom he could identify, he has not named
any person in the deposition. While according to him,
on the next day, only after visiting the shop and taking
the bill books in hand, he informed PW2 about the
facts. He stated that he had seen 100-150 people in
the crowd, but he could not recognize anyone in the
crowd. He even specifically clarifies that he had not
seen any of the accused in the crowd.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
22.2 This witness-PW14 has not been declared hostile. In
the cross examination it has come on record, that ,
when he has reached the place of incident, the police
had come there. He also affirms that the place of
incident was very far from the place where he was
standing. And 100-150 people crowd was also very far.
He has no information whether the police had arrested
any of them. This evidence of PW14 clarifies that
police was present at the time of incident, and thus, it
would be known to this witness about the Panchnama
at Exhibit 39, that was drawn by the police on
03.03.2002. The complaint by PW5 is dated
02.03.2002 whereas as per the complainant-PW5, the
incident had taken place on 01.03.2002 between
14.00-23.00 hours.
22.3 PW14 has not given any evidence with regard to loss of
oil drums, oil buckets or oil cans nor of any damage as
referred in Exhibit 35. This fact becomes relevant to
bring on record, the motive behind Exhibit 35. Exhibit
35 appears to be a lawyer assisted drafting. In the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
cross examination of PW2, he stated the sections of
IPC were dictated by his uncle-PW14, while PW14 has
not made any such mention in his deposition, rather
PW14 clearly states that he had not seen any of the
accused in the crowd.
23. The learned trial Court Judge while referring to the
evidence of PW14-Mohammedbhai Jamalbhai has
merely observed his deposition of having not identified
the persons from the crowd, but trial court had not
come to any conclusion, as to why it was not ready to
believe PW14, though PW14 and PW3 both had gone
on the same bike at the same place.
24. The conviction is totally based on PW3-Irfan Yusuf
Vohra. The learned trial Court Judge had convicted 4
out of 9 and released 5 accused.
25. Learned advocate Mr. Vijay Patel has raised the
contention that Section 149 of the IPC would not apply
if less than 5 persons are convicted. He has made
reference to the decisions in the cases of K.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Nagamalleswara Rao v. State of Andhra Pradesh
(supra) and Amar Singh v. State of Punjab and
Haryana (supra) in the context of invocation of Section
149 of IPC.
26. In the case of K. Nagamalleswara Rao v. State of
Andhra Pradesh (supra), in Paragraph 8 it was
observed as under :-
8. However, the learned Judges over-looked that since the
accused who are are convicted were only four in number and
the prosecution has not proved the involvement of other
persons and the courts below have acquitted all the other
accused of all the offences, section 149 cannot be invoked for
convicting the four appellants herein. The learned Judges were
not correct in stating that A1, A2, A5 and A11 "can be held to
be the members of the unlawful assembly along with some
others unidentified persons' on the facts and circumstances of
this case. The charge was not that accused 1, 2, 5 and 11 "and
others' or "and other unidentified persons" formed into an
unlawful assembly but it is that "you accused 1 to 15" who
formed into an unlawful assembly. It is not the prosecution
case that apart from the said 15 persons there were other
persons who were involved in the crime. When the 11 other
accused were acquitted it means that their involvement in the
offence had not been proved. It would not also be permissible
to assume or conclude that others named or unnamed acted
conjointly with the charged accused in the case unless the
charge itself specifically said so and there was evidence to
conclude that some others also were involved in the
commission of the offence conjointly with the charged accused
in furtherance of a common object."
27. The facts in Amar Singh's case (supra) in short were
that seven accused were charged for murder under
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
section 302 read with section 149 IPC. Two out of the
seven accused were acquitted by the Trial Court and
on appeal the High Court acquitted one more accused.
However, the High Court convicted four of the accused
under section 302 read with section 149 IPC and
sentenced them for life imprisonment. On behalf of the
four convicted accused it was contended that after the
acquittal for three accused persons out of seven, the
appellants who were remaining four cannot be held to
have formed an unlawful assembly within the meaning
of Section 141, IPC and accordingly the charge under
section 149 was not maintainable.
27.1 In the case of Amar Singh v. State of Punjab and
Haryana (supra), in Paragraph 9 it was held as
under :-
"9. In our opinion, there is much force in the contention. As
the appellants were only four in number, there was no
question of their forming an unlawful assembly within the
meaning of section 141 IPC. It is not the prosecution case
that apart from the said seven accused persons, there were
other poisons who were involved in the crime. Therefore, on
the acquittal of three accused persons, the remaining four
accused, that is, the appellants, cannot be convicted under
Section 148 or section 149 IPC for any offence, for, the first
condition to be fulfilled in designating an assembly an
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
"unlawful assembly'' is that such assembly must be of five
or more persons, as required under Section 141 IPC. In our
opinion, the convictions of the appellants under Sections
148 and 149 IPC cannot be sustained."
28. Section 149 of the IPC is reproduced herein for ready
reference.
"149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object.--
If an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to be
likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence."
28.1 The above Section has the following essential
ingredients : - (i) there must be an unlawful assembly
(ii) commission of any offence of an unlawful assembly
and (iii) such offence must have been committed in
prosecution of the common object of the assembly or
must be such as the members of the assembly knew
likely to be committed.
29. In cases of large scale rioting, it would be a challenge
to identify the individual participants and their role.
Establishing a common object among the members of
the unlawful assembly can be difficult. Witness
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
testimony may be unreliable or influenced by various
factors such as fear, bias or personal interest. For the
purpose of application of Section 149 of the IPC, the
prosecution has to prove the presence and
participation in an unlawful assembly. In order to
attract Section 149, it must be shown that the
incriminating act was done to accomplish the common
object of unlawful assembly and it must be within the
knowledge of other members as one likely to be
committed in prosecution of the common object.
30. Inference of a common object has to be drawn from
various factors such as weapons carried with them,
their movements, the acts of violence committed by
them and the result, as observed in the case of
Surendra v. State of Uttar Pradesh reported in (2012) 4
SCC 776.
31. In the evidence of PW14-Mohammedbhai Jamalbhai, it
has come in his deposition that on 01.03.2002, when
he had gone alongwith PW3, he had seen a mob of
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
100-150 persons, according to the witness PW14,
some were engaged in setting fire, while others were
extinguishing the fire. So here now, it becomes
necessary for the prosecution to establish that the
accused were the members of unlawful assembly, and
that the accused had done incriminating act to
accomplish common object of unlawful assembly. The
prosecution was required to prove that it was in the
knowledge of the other co-accused that they were likely
to commit such incriminating act in prosecution of the
common object. The knowledge and awareness of the
members of the unlawful assembly of a likelihood of a
particular offence being committed in prosecution of
common object, would make them liable for
prosecution under Section 149 of the IPC.
32. In the case of Nityanand v. State of U.P. & Another
reported in 2004 (57) ALR 290 rendered in Criminal
Appeal no.1348 of 2014 dated 04.09.2024, the Hon'ble
Supreme Court, while referring to Sections 141, 146
and 148 IPC, considering Section 149 IPC as pivotal
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
section, observed that every member of an unlawful
assembly shall be guilty of an offence committed in
prosecution of the common object. Section 149 IPC
says that if an offence is committed by any member of
an unlawful assembly in prosecution of the common
object of that assembly, or such as the members of
that assembly likely to be committed in prosecution of
that object, every person, at the time of committing of
that offence, is a member of the said assembly; is
guilty of that offence. The judgment refers to the case
of Krishnappa v. State of Karnataka reported in (2012)
11 SCC 237, where the Court while examining Section
149 IPC, has observed in Paragraphs 20 and 21 as
under:-
"20. It is now well-settled law that the provisions of Section
149 IPC will be attracted whenever any offence committed by
any member of an unlawful assembly in prosecution of the
common object of that assembly, or when the members of that
assembly knew that offence is likely to be committed in
prosecution of that object, so that every person, who, at the
time of committing of that offence is a member, will be also
vicariously held liable and guilty of that offence. Section 149
IPC creates a constructive or vicarious liability of the members
of the unlawful assembly for the unlawful acts committed
pursuant to the common object by any other member of that
assembly. This principle ropes in every member of the
assembly to be guilty of an offence where that offence is
committed by any member of that assembly in prosecution of
common object of that assembly, or such members or assembly
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
knew that offence is likely to be committed in prosecution of
that object.
21. The factum of causing injury or not causing injury
would not be relevant, where the accused is sought to be roped
in with the aid of Section 149 IPC. The relevant question to be
examined by the court is whether the accused was a member of
an unlawful assembly and not whether he actually took active
part in the crime or not."
33. Finally, the Hon'ble Supreme Court in the case of Nitya
Nand (supra) has observed in Paragraph 30.1 as
under:-
"30.1. Thus, this Court held that Section 149 IPC creates a
constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to
the common object by any other member of that assembly. By
application of this principle, every member of an unlawful
assembly is roped in to be held guilty of the offence committed
by any member of that assembly in prosecution of the common
object of that assembly. The factum of causing injury or not
causing injury would not be relevant when an accused is roped
in with the aid of Section 149 IPC. The question which is
relevant and which is required to be answered by the court is
whether the accused was a member of an unlawful assembly
and not whether he actually took part in the crime or not."
34. The Hon'ble Supreme Court observes that Section 149
IPC creates a constructive or vicarious liability of the
members of the unlawful assembly for the unlawful act
committed pursuant to the common object by any
other member of that assembly. Every member, thus,
of an unlawful assembly is to be held guilty for the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
offence committed by any member of that assembly in
prosecution of the common object of that assembly.
The Hon'ble Supreme Court clarifies about the
question which would be relevant for the Court to
answer, whether the accused was a member of an
unlawful assembly and not whether he actually took
part in the crime.
35. The Hon'ble Supreme Court has also in Nitya Nand
(supra) referred to the case of Vinubhai Ranchhodbhai
Patel v. Rajivbhai Dudabhai Patel reported in (2018) 7
SCC 743, wherein it was observed that Section 149
IPC does not create a separate offence, but only
declares vicarious liability of all members of unlawful
assembly for acts done in common object. The Hon'ble
Supreme Court has observed in Paragraphs 20, 22 and
34 as under :-
"20. In cases where a large number of accused constituting an
"unlawful assembly" are alleged to have attacked and killed one
or more persons, it is not necessary that each of the accused
should inflict fatal injuries or any injury at all. Invocation of
Section 149 is essential in such cases for punishing the
members of such unlawful assemblies on the ground of
vicarious liability even though they are not accused of having
inflicted fatal injuries in appropriate cases if the evidence on
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
record justifies. The mere presence of an accused in such an
"unlawful assembly" is sufficient to render him vicariously
liable under Section 149 IPC for causing the death of the victim
of the attack provided that the accused are told that they have
to face a charge rendering them vicariously liable under Section
149 IPC for the offence punishable under Section 302 IPC.
Failure to appropriately invoke and apply Section 149 enables
large number of offenders to get away with the crime.
*****
22. When a large number of people gather together
(assemble) and commit an offence, it is possible that only some
of the members of the assembly commit the crucial act which
renders the transaction an offence and the remaining members
do not take part in that "crucial act" -- for example in a case of
murder, the infliction of the fatal injury. It is in those
situations, the legislature thought it fit as a matter of legislative
policy to press into service the concept of vicarious liability for
the crime. Section 149 IPC is one such provision. It is a
provision conceived in the larger public interest to maintain the
tranquility of the society and prevent wrongdoers (who actively
collaborate or assist the commission of offences) claiming
impunity on the ground that their activity as members of the
unlawful assembly is limited.
*****
34. For mulcting liability on the members of an unlawful
assembly under Section 149, it is not necessary that every
member of the unlawful assembly should commit the offence in
prosecution of the common object of the assembly. Mere
knowledge of the likelihood of commission of such an offence
by the members of the assembly is sufficient. For example, if
five or more members carrying AK 47 rifles collectively attack a
victim and cause his death by gunshot injuries, the fact that
one or two of the members of the assembly did not in fact fire
their weapons does not mean that they did not have the
knowledge of the fact that the offence of murder is likely to be
committed."
36. Here in the present case the section invoked in the
charge against accused also included Section 148 IPC
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
for rioting, armed with deadly weapon. Section 148
reads thus :-
"148. Rioting, armed with deadly weapon.--Whoever is
guilty of rioting, being armed with a deadly weapon or with
anything which, used as a weapon of offence, is likely to
cause death, shall be punished with imprisonment of either
description for a term which may extend to three years, or
with fine, or with both."
36.1 The case of offence by use of deadly weapons likely to
cause dead has not been proved by prosecution. People
had gathered there. Some were burning things and
some were in extinguishing fire. The prosecution then
would have to prove that the present appellants were
in unlawful assembly and appellants as accused had
actually taken part in the arson. PW14-Uncle has
totally denied the presence of appellants in the crowd,
who had gone alongwith PW3 at the same place and
were standing together at the place distant from the
place of offence.
37. In the case of Chanda v. State of U.P. reported in
(2004) 5 SCC 141, the law on Sections 141 and 149 of
IPC has been very clearly dealt with and the Hon'ble
Supreme Court's observations are as under:-
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
"Mere presence in an unlawful assembly cannot render a
person liable unless there was a common object and he was
actuated by that common object and that object is one of
those set out in Section 141. Where common object of an
unlawful assembly is not proved, the accused persons
cannot be convicted with the help of Section 149. The
crucial question to determine is whether the assembly
consisted of five or more persons and whether the said
persons entertained one or more of the common objects, as
specified in Section 141. It cannot be laid down as a general
proposition of law that unless an overt act is proved against
a person, who is alleged to be a member of an unlawful
assembly, it cannot be said that he is a member of an
assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely
to commit any of the acts which fall within the purview of
Section 141. (Para 8)
An object is entertained in the human mind, and it being
merely a mental attitude, no direct evidence can be
available and, like intention, has generally to be gathered
from the act which the person commits and the result
therefrom. The "common object" of an assembly is to be
ascertained from the acts and language of the members
composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the
course of conduct adopted by the members of the assembly.
What the common object of the unlawful assembly is at a
particular stage of the incident is essentially a question of
fact to be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the
behaviour of the members at or near the scene of the
incident. (Para 10 and 9)
It is not necessary that the intention or the purpose, which
is necessary to render an assembly an unlawful one comes
into existence at the outset. The time of forming an
unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is lawful,
may subsequently become unlawful. In other words, it can
develop during the course of incident at the spot eo
instante. (Para 9)
A common object may be formed by express agreement after
mutual consultation, but that is by no means necessary. It
may be formed at any stage by all or a few members of the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
assembly and the other members may just join and adopt
it. Once formed, it need not continue to be the same. It may
be modified or altered or abandoned at any stage. There
must be community of object and the object may exist only
up to a particular stage, and not thereafter. Members of an
unlawful assembly may have community of object up to a
certain point beyond which they may differ in their objects
and the knowledge possessed by each member of what is
likely to be committed in prosecution of their common
object may vary not only according to the information at his
command, but also according to the extent to which he
shares the community of object, and as a consequence of
this the effect of Section 149 IPC may be different on
different members of the same assembly. (Para 8)
The word "object" means the purpose or design and, in
order to make it "common", it must be shared by all. In
other words, the object should be common to the persons,
who compose the assembly, that is to say, they should all
be aware of it and concur in it. "Common object" is different
from a "common intention" as it does not require a prior
concert and a common meeting of minds before the attack.
(Para 8 and 9)
Section 149 IPC consists of two parts. The first part of the
section means that the offence to be committed in
prosecution of the common object must be one which is
committed with a view to accomplish the common object. In
order that the offence may fall within the first part, the
offence must be connected immediately with the common
object of the unlawful assembly of which the accused was a
member. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may
yet fall under Section 141, if it can be held that the offence
was such as the members knew was likely to be committed
and this is what is required in the second part of the
section. (Para 10)
When an offence is committed in prosecution of the
common object, it would generally be an offence which the
members of the unlawful assembly knew was likely to be
committed in prosecution of the common object. That,
however, does not make the converse proposition true; there
may be cases which would come within the second part but
not within the first part. The distinction between the two
parts of Section 149 cannot be ignored or obliterated. In
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
every case it would be an issue to be determined, whether
the offence committed falls within the first part or it was an
offence such as the members of the assembly knew to be
likely to be committed in prosecution of the common object
and falls within the second part. However, there may be
cases which would be within the first part; but offences
committed in prosecution of the common object would be
generally, if not always, be within the second part, namely,
offences which the parties knew to be likely to be committed
in the prosecution of the common object. (Para 10)
38. PW-3 Irfan Yusuf Vohra the brother-in-law of PW2
stated that he had gone alongwith PW14. The witness
states that he was at home alongwith his PW2-brother-
in-law. He is the resident of Anand. During the period
of the incident, he was sitting at the shop of PW2 and
was handling his business of lubricating oil, opposite
People's Bank in Sankalp Complex known as 'Charotar
Oil'. The witness PW3 states that incident had
occurred on 01.03.2002. It was the day of Bandh.
Their shop was closed. The Bandh was on account of
Godhra carnage. It was a Friday and after the Juma
Namaaz, he had come back at his Society, and he
came to know that the atmosphere in Anand was
grave. What would happen was not known? Their
shop was in a different area of Ganj.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
38.1 The witness-PW3 stated that important documents,
files and cash amount were there and because of the
anxiety, he went to his Uncle-PW14-Mohammed Jamal
Vora. PW14 told him that he was joining him,
therefore, PW3 and his Uncle-PW14 both went to the
shop on the bike.
38.2 The witness-PW3 stated that it was not possible to go
to the shop, there was curfew, they through Amul
Diary Road, entered the lane of Ceat Shop. On the
four sides of the Complex, they saw, total public and
vandalism was going on in their shop and the
neighbour's shop. The damage of two shops on the
ground floor was in progress, they were throwing out
the materials from the shop. The witness stated that
there were oil buckets and oil cans of their shop which
were of 5 litres, thrown out and set on fire. He stated
that it was a terrific fire. Then the public started to
scatter, and at that time, people from Sankalp
Complex and Super Computers had come there.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Attempt was made to remove them and to extinguish
the fire.
38.3 Here the witness-PW3 states about public everywhere
around the complex, people from Sankalp Complex
and Super computers had also come, attempts were
made to remove the public to extinguish fire.
39. The evidence of PW3 states that oil buckets and cans
of 5 litres were thrown out from the shop, it was put to
fire, public started scattering. This he saw from the
lane of Ceat Shop. The presence of people of Sankalp
Complex and Super Computers had been brought by
this witness in his deposition. None of them from
Sankalp Complex and Super Computers have been
examined to corroborate the evidence of PW3. Though
PW14-Mohammedbhai Jamal was with PW3, he is not
corroborating the evidence of PW3. PW14 stated that
they stood at a distance, from Bharat Tyres in
Sardargunj. That specification of the area is not
coming in the evidence of PW3. He was standing in
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
the Ceat Shop lane. Whether both this area near
Bharat Tyres and Ceat Shop is the same does not get
corroboration from both these witnesses nor from
others, however, the fact remains that PW3 and PW14
had gone at the same place. The description of the
event varies in the testimony of both the witnesses.
PW14 only refers to the crowd of 100-150 people but
he does not depose of the miscreants throwing, 5 litres
oil buckets or oil cans. According to PW14, some were
burning things, while others were dousing. PW14 had
not recognized accused in the mob.
39.1 PW3 further states that the public were trying to
extinguish the fire, the fire brigade was called there,
PW3 deposed that the fire was fierce, it could not be
brought under control and everything got destroyed.
The evidence further states that the oil which was out,
were looted by the public. He assessed the damage of
Rs.5,50,000/-. His deposition states that the credit
book, cash, cheque book and files etc. everything was
destroyed. The evidence of PW14 states that while they
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
had gone the other day, they could bring bill books.
This evidence does not get corroboration from PW3
since on that very day, i.e. on 01.03.2002, he had not
gone near his shop, he was watching things from a
distance, standing in the lane of Ceat Shop. Two
shops he said were damaged by the people. He also
says that public was extinguishing fire. He clarifies
that he could not go near the shop, and as he got
frightened, therefore, returned back home. He
informed about the incident to the family members at
home. But no complaint was given to the police, there
is no FIR lodged by him.
39.2 There was a crowd of 100-200 people, in that he had
given the names Alpesh Chako, Ashok Kodilo, Rinku
Patel, Mitul Patel, Sachin, Mitesh Dhobhi. The only
name which gets tallied from the accused is Alpesh
Chako-deceased accused No.1 who was member of
Anand Nagarpalika. He refers to Ashok Sheth and
Ashok Kodilo. How had he identified such person.
How, Ashok Sheth, Ashok Kodilo got identified before
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
the police, for them to be charge-sheeted, is not
coming on record. Admittedly, there was no TIP. He
had named one person as Sachin, but has not given
the full name and another as Mitesh Dhobhi. The
witness stated that he was knowing these persons.
The rest of them in the crowd were not known to him.
40. The cases of P. Sasikumar v. State Rep. by the
Inspector of Police in SLP (Criminal) No.2756 of 2019,
Vishwanatha v. State of Karnataka in Criminal Appeal
No.192 of 2012, Wahid v. State Govt of NCT of Delhi in
Criminal Appeal No.201 of 2020 have been referred by
learned advocate Mr. Vijay Patel to support his
argument, that in absence of identification of the
accused without the TIP, mere identification in the
Court would not be sufficient and when there is
contradiction in the testimony of the eye witness
without TIP, it cannot be said that the case has been
proved beyond reasonable doubt.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
41. In the case of P. Sasikumar (supra), in Paragraphs 10, 12,
13, 15 and 16 it has been observed as under :-
"10. The admitted position in this case is that the test
identification parade (hereinafter referred to as 'TIP') was
not conducted. All the prosecution witnesses who identified
the accused in the Court such as PW-1 and PW-5 were not
known to the present appellant i.e., accused no.2. They had
not seen the present appellant prior to the said incident. He
was a stranger to both of them. More importantly, both of
them have seen the appellant/accused No. 2 on the date of
the crime while he was wearing a "green colour monkey
cap"!
12. It is well settled that TIP is only a part of Police
investigation. The identification in TIP of an accused is not a
substantive piece of evidence. The substantive piece of
evidence, or what can be called evidence is only dock
identification that is identification made by witness in Court
during trial. This identification has been made in Court by
PW-1 and PW-5. The High Court rightly dismisses the
identification made by PW-1 for the reason that the
appellant i.e., accused no.2 was a stranger to PW-1 and
PW-1 had seen the appellant for the first time when he was
wearing a monkey cap, and in the absence of TIP to admit
the identification by PW-1 made for the first time in the
Court was not proper. However, the High Court has believed
the testimony of PW-5 who has identified accused no.2
under similar circumstances! The appellant was also
stranger to PW-5 and PW-5 had also seen the accused i.e.,
the present appellant for the first time on that fateful day
i.e. on 13.11.2014 while he was wearing a green colour
monkey cap. The only reason assigned for believing the
testimony of PW-5 is that he is after all an independent
witness and has no grudge to falsely implicate the
appellant. This is the entire reasoning. We are afraid the
High Court has gone completely wrong in believing the
testimony of PW-5 also the identification of the appellant. In
cases where accused is a stranger to a witness and there
has been no TIP, the trial court should be very cautious
while accepting the dock identification by such a witness
(See : Kunjumon v. State of Kerala (2012) 13 SCC 750).
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
13. After considering the peculiar facts of the present case,
we are of the opinion that not conducting a TIP in this case
was a fatal flaw in the police investigation and in the
absence of TIP in the present case the dock identification of
the present appellant will always remain doubtful. Doubt
always belongs to the accused. The prosecution has not
been able to prove the identity of the present appellant i.e.
A-2 beyond a reasonable doubt. The relevance of a TIP, is
well-settled. It depends on the fact of a case. In a given
case, TIP may not be necessary. The non conduct of a TIP
may not prejudice the case of the prosecution or affect the
identification of the accused. It would all depend upon the
facts of the case. It is possible that the evidence of
prosecution witness who has identified the accused in a
court is of a sterling nature, as held by this Court in the
case of Rajesh v. State of Haryana (2021) 1 SCC 118 and
therefore TIP may not be necessary. It is the task of the
investigation team to see the relevance of a TIP in a given
case. Not conducting TIP in a given case may prove fatal for
the prosecution as we are afraid it will be in the present
case.
15. In the facts of the present case, the identification of the
accused before the court ought to have been corroborated
by the previous TIP which has not been done. The emphasis
of TIP in a given case is of vital importance as has been
shown by this Court in recent two cases of Jayan v. State of
Kerala (2021) 20 SCC 38 and Amrik Singh v. State of
Punjab (2022) 9 SCC 402. In Jayan (supra), this Court
disbelieved the dock identification of the accused therein by
a witness and while doing so, this Court discussed the
aspect of TIP in the following words :
"It is well settled that TI parade is a part of investigation
and it is not a substantive evidence. The question of holding
TI parade arises when the accused is not known to the
witness earlier. The identification by a witness of the
accused in the Court who has for the first time seen the
accused in the incident of offence is a weak piece of
evidence especially when there is a large time gap between
the date of the incident and the date of recording of his
evidence. In such a case, TI parade may make the
identification of the accused by the witness before the Court
trustworthy...." (Para 18)
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
16. Under these circumstances, we hold that the identity of
the present appellant is in doubt. The appellant could not
have been convicted on the basis of a very doubtful evidence
as to the appellant's identity. The appeal is allowed and the
impugned order of the High Court dated 12.01.2017 is
hereby set aside. The appellant has been in jail for about 8
years as we have been told at the Bar, he shall be released
forthwith unless he is required in some other case. We
make it absolutely clear that this decision of acquittal is
based on the evidence, or lack thereof, which the
prosecution has against accused no. 2 i.e. the present
appellant. This will absolutely have no bearing on the case
of accused no.1."
42. In the case of Vishwanatha (supra), in Paragraphs 16,
17 and 18, it has been observed as under :-
"16. Coming back to the facts and circumstances of the
present case, it is an admitted fact that Ravikumar
(Accused No.1, now deceased) was known to the
eyewitnesses and was also related to the complainant.
Hence, there was no requirement of TIP as regard to
Ravikumar (accused no.1). But the case of appellant-
Vishwananth stands on a different footing. He was a total
stranger to the two eye witnesses i.e. PW-1 and PW-2. The
name 'Vishwanath' came to their knowledge, only after
Ravikumar (Accused no. 1) called his co-accused, by name
exhorting him to run. In a case where the identity of the
accused is not known and TIP has not been conducted, the
court has to see if there was any description of the accused
either in the FIR or in any of the statement of witness
recorded during the investigation. There is none in the
present case.
The identification of an accused in court is acceptable
without a prior TIP and absence of TIP may not be fatal for
the prosecution. It would depend on facts of each case. In
the case at hand, though the appellant was identified in
court by PW-1 and PW-2, the Trial Court did not attach
much weight to it, as no identification proceedings were
conducted, and the Court found it unsafe to acknowledge
the identity merely on the basis of identification in the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Court.
In the present case, where there are six persons by the
name of 'Vishwanatha' in the locality and where this Court
has doubts on the presence of the two star witnesses PW-1
and PW-2 (who have identified the accused), we are of the
opinion that the identity of the present appellant remained
in doubt.
17. Another fact which casts a doubt on the identity of the
present appellant, is that there is no description in the FIR
of 'Vishwanatha' except that his name is mentioned. He
then becomes the first of the two to be arrested by the
police. Learned counsel of the appellant would submit that
there were six persons by the name of 'Vishwanantha' in
Kudupu village at the relevant point of time, a fact which
was placed by the defence during trial, which has not been
confronted. In such a situation, it was the duty of the
prosecution to show as to how and on what basis, the
appellant came to be apprehended by the police. The Sub-
Inspector, PS-Mangalore Rural (PW-19), who apprehended
the appellant, had also failed to explain how he came to
apprehend the appellant without any information regarding
his description. In his examination-in-chief, the Sub-
Inspector (PW-19) explained the arrest of the appellant in
the following manner:
"2. In respect of this case, crime no.388-2000 on
26.12.2000 my inspector instructed me to find out the
accused. The same day myself and my staff taken into
custody the accused Vishwananth at 4:30 PM near
Goraksha Jnana Mandira, Near Kadri Park, Mangalore.
Said accused is before the Court. I identify him. With the
help of Vishwanath we had arrested another accused, Ravi
Kumar at 5 P.M in a 'Galli' near State Bank of Mysore,
Silver gate, Kulashekara, Mangalore..."
A perusal of the testimony of the Sub-Inspector/PW-19
indicates that there is not even a whisper as to what formed
the basis of the appellant's arrest. He was cross-examined
and what was gathered from his cross-examination is that
the appellant was arrested in absence of any independent
witnesses and without preparing any arrest memo. All these
facts combined together cast a doubt on the identity of the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
appellant. Thus, it is not safe to convict the appellant solely
only on the basis of the testimony of PW1 and PW2, which
itself."
18. Another aspect which needs to be considered is that the
prosecution case rests primarily on the evidence of PW-1
and PW-2, who were the star witnesses. The admitted case
of the prosecution is that PW-1, who is the daughter of the
deceased, had gone out for some household work and there
was no one in the house when the crime was committed.
First, PW-1 had gone to a place named 'Kulshekara' and
then to the Post Office, and in the end to her uncle's house
at 'Ullal'. The distance between her residence at Kudupu
and Ullal is about 20 km. She first walks some distance and
then catches a bus to reach Kulshekara and from there she
went to the post office, and after attending to her work, she
takes a bus to go to her uncle's house at Ullal. Finally, she
returned home in Kudupu and all of this was done by her
within a period of 2½ hours. But this is not enough, as per
the prosecution version, she also reached her house at the
very moment when the deceased was being strangulated
and then peeping through the window pane, she witnessed
the two accused pulling the two ends of the rope. She called
Accused no. 1-Ravikumar by his name, which led to the two
accused fleeing from the spot and PW-2 who is the
neighbour, chased them but in vain. This whole story of the
prosecution is unbelievable for more reasons than one.
Even if it is assumed for the sake of argument that PW-1
had reached the house at the exact time when the crime
was being committed, the testimony to the effect that her
mother was strangulated to death by a rope-like material, in
the manner narrated by her, is not corroborated by the
post-mortem report where ligature marks on the neck were
not found to be encircling the neck in a round manner, as it
should have been in such a case of strangulation. There
were no ligature marks on the back of the neck. As
discussed earlier, the marks were only on the front side
extending from one angle of the mandible to the other. We
therefore conclude that the prosecution has not been able
to prove its case beyond reasonable doubt."
43. In the case of Wahid (supra), in Paragraphs 14, 23 and 24,
it has been observed as under :-
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
"14. In cases where the FIR is lodged against unknown
persons, and the persons made accused are not known to
the witnesses, material collected during investigation plays
an important role to determine whether there is a credible
case against the accused. In such type of cases, the courts
have to meticulously examine the evidence regarding (a)
how the investigating agency derived clue about the
involvement of the accused in the crime; (b) the manner in
which the accused was arrested; and (c) the manner in
which the accused was identified. Apart from above,
discovery/ recovery of any looted article on the disclosure
made by, or at the instance of, the accused, or from his
possession, assumes importance to lend credence to the
prosecution case. Manner in which accused persons were
arrested and recovery effected appears doubtful.
23. As far as dock identification by the remaining two eye
witnesses is concerned, they identified the accused persons
during their deposition in court in the year 2015, that is,
after nearly 4 years of the incident. PW-6, though stated
that he identified the accused persons on 06.12.2011 while
they were in the police lock-up, admitted that he went to
the police station without being summoned. Interestingly,
as per his description in the record, he is a resident of
Aligarh. During cross-examination, he stated that he visited
the police station on 06.12.2011 at 07:30 a.m. Considering
that he is a resident of Aligarh, his statement that he visited
the police station without summons on 06.12.2011 at07:30
a.m. does not inspire our confidence. Admittedly, memory of
those witnesses was not tested through a test identification
parade. In such circumstances, when three eye witnesses
stated that accused persons were not the ones who
committed the crime and another one stated that it was too
dark, therefore, he could not recognise, bearing in mind
that the accused persons were not known to the eye
witnesses from before, not much reliance can be placed on
the dock identification.
24. In such circumstances, and in absence of corroborative
evidence of recovery of looted articles at the instance of or
from the accused persons, in our view, this was a fit case
where the appellants should have been given the benefit of
doubt."
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
44. On careful reading of the judgments referred by
learned advocate Mr. Vijay Patel in regard to
identification of the accused by the witnesses in the
Court and on analysis of the proposition of law, it can
be observed that in cases where accused is a stranger
to the witness and there has been no TIP, the trial
Court should be very cautious while accepting the
dock identification by such a witness. In absence of
TIP, the dock identification of accused will always
remain doubtful. Absence of TIP may not prejudice
the case of the prosecution or affect the identification
of the accused, if the evidence of the prosecution
witness who has identified the accused in the Court is
of a sterling quality. Otherwise identification of the
accused before the Court ought to have been
corroborated by the previous TIP. The question of
holding TIP arises when the accused is not known to
the witness.
45. There was no test identification for all the referred
names. How PW3 was knowing these people, has not
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
been stated, nor the witness had stated about the role
of all the individual accused whom he had seen in the
crowd of 100-200 people. The law presupposes the
existence of unlawful assembly and has to prove that
the accused being the member of unlawful assembly,
who in prosecution of common object has committed
offence or that they had the knowledge what was likely
to be committed in prosecution of their common
object. As referred earlier, PW14 had stated in his
deposition, few of them were extinguishing the fire. If
the present referred people were there in burning the
shops and more specifically, burning the shop of his
employer, this employee-PW3 as brother-in-law was
required to give evidence of the act of each and every
referred accused, more so when since they were
charged for rioting with deadly weapons. The
identification could have been of the deadly weapon, in
the hands of the accused.
46. Section 141 of the IPC defines unlawful assembly as
under :-
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
"141. Unlawful assembly.-- An assembly of five or more
persons is designated an "unlawful assembly", if the common
object of the persons composing that assembly is--
First-- To overawe by criminal force, or show of criminal force,
1the Central or any State Government or Parliament or the
Legislature of any State, or any public servant in the exercise of
the lawful power of such public servant; or
Second-- To resist the execution of any law, or of any legal
process; or
Third-- To commit any mischief or criminal trespass, or other
offence; or
Fourth-- By means of criminal force, or show of criminal force,
to any person, to take or obtain possession of any property, or
to deprive any person of the enjoyment of a right of way, or of
the use of water or other incorporeal right of which he is in
possession or enjoyment, or to enforce any right or supposed
right; or
Fifth-- By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or
to omit to do what he is legally entitled to do.
Explanation.-- An assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly."
47. In view of the definition the assembly of five or more
persons with a common object of burning the place
was required to be delineated to be recounted as
"unlawful assembly". The conduct of each individual
referred in the deposition of PW3 was required to be
stated. The provision of Section 148 was though
invoked, the accused have been given benefit of doubt
under Section 148 of IPC and thereby, the accused
were not believed to be armed with deadly weapons for
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
rioting. Even the offence under Section 457 of the IPC
of lurking house trespass or house breaking in order to
commit offence had not believed against the accused,
nor Section 380 of the IPC of theft in any building is
believed. PW3 has also stated that few of them had
looted and had taken away materials of their shop.
There is no investigation in this direction. Nothing has
come on record that the looted articles were found
from the possession of the named persons.
48. PW3-Irfan Yusuf Vohra as witness in the Court has
identified the accused by referring to the name as per
the following schedule:-
Sr. Named by the Identified in the Recorded by the Court
No witness in the Court by the
Court witness
1 Alpesh Chako Accused no.1 (Alpesh @ Chako
Navinchandra Patel)
2 Ashok Sheth Ashok Jasabhai (A8)
Patel
3 Ashok Kodhilo Accused no.5 (Ashokbhai @
Banarasi Bharatbhai
Gupta)
4 Rinku Patel Accused no.9 - (Hetalkumar
Hetal Satishkumar Patel)
Satishkumar
Patel
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
5 Mitul Patel Accused no.3 - Identified
Pritul
Jayantibhai
Patel
6 Sachin Accused no.2 - Identified
Sachin
Hasmukhbhai
Patel
7 Mitesh Dhobi Nilkanth Ratilal --------------
Chaudhari
49. PW3 could not identify the accused with their full
name. Even the identification by name does not match
with the mononyms. He could even not identify rest of
the two accused nos.4 and 7. In his deposition, he
stated that the person, whom he had named as above,
were in the crowd, while rest of them whether were in
the crowd or not, he could not recollect.
50. In the cross-examination, the witness was confronted
with the question, which he affirmed in affirmative,
that from the crowd, he could not state which of the
person was causing the destruction, but he voluntarily
stated that each member of the crowd had taken part
and all were in the act of vandalism and further stated
that certain persons had set the fire.
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
51. The witness is not sure about the act of the members
of the crowd. According to him, all the members of the
crowd, which was a crowd of 150 to 200 people, were
engaged in sabotage. He denied the suggestion that
only four shops were broken and stated that he could
not state as to who had caused destruction of which
shop, further stating that he could only tell the names
of the persons who had destroyed his shop.
52. The witness was put to question that he had no
occasion earlier to meet the accused, which he
affirmed, nor had he any relation with the accused
earlier. He also stated that he does not recognize all
the people of Anand.
53. Here the witness has not specifically stated the role of
each of the accused in the incident. In order to fasten
criminal liability upon an accused, there must be
identification of the accused with certainty. When more
than one accused are involved in a crime, the
occurrence witness must identify them specifically .
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Here the witness - PW3 could not give the full name of
the accused. It is not his case that the police had
undertaken any process of identification of the accused
as per the mononyms. The accused were referred by
the mononyms by PW3, when he actually had no
occasion to meet them earlier, nor had any relation
with them. He had seen the incident on 01.03.2002,
but till 17.03.2002, he had not gone to the Police
Station. He denied the suggestion that till 17.03.2002,
he had not given the names of these persons to
anyone, but stated that he had informed the members
of the family, inspite of knowing about the incident,
more so, as per his say witnessing the incident and
even identifying the miscreant, he had not informed
the police, which as per his deposition, the police was
present there at the time of the incident. He, for the
first time, had gone to the Police Station on
17.03.2002. He and his brother-in-law both were
having telephone at home. They had not phoned the
police of the incident. The witness clarifying for not
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
informing the police stated that the police was present
at the place and was doing nothing.
54. His evidence also states that the oil thrown out, was
looted. However, that fact was not stated before the
police. PW12 - Kamubhai Sajabhai, the police had the
statement of this witness and on examination of the
statement, he deposed before the Court during the trial
that PW3-Irfan Yusuf Vohra had not stated in the
police statement of oil buckets and canes of 5 Ltrs.
thrown out and there was attempt to cause fire and
thereafter, actually, they had set the fire and the fire
was fierce. The learned Trial Court has not believed the
case under Section 380 IPC of theft in any building.
The police could not even connect any of the accused,
with any of the property of the present witness PW3 or
PW2. The deposition in the cross-examination also
further clarifies that there were many shops opposite
People's Bank and out of those shops, there were two
shops, one his and another. Both the shops were oil
shops. The witness from another shop was not
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
examined during the trial. He has also affirmed that
the police had not conducted TIP. In absence of
evidence of the destruction and loss to the adjoining oil
shops and when there is no specification of the
individual act of the accused with the identification of
their name and clarity of the act of the accused in the
mob, which could be considered as an unlawful
assembly, no conviction can follow. The crucial
evidence is the identification of the saboteur. The
identity of the accused had not been established
during the trial to fasten the criminal culpability.
55. The evidence of PW3 and PW14, though were standing
together at the same place, had gone together on the
bike, do not corroborate each other. Both are
considered as eye-witnesses. PW3 is not telling anyone
about the occurrence till 17.03.2002. For the first
time, PW2 and PW3 had gone to the Police Station on
17.03.2002. The relation though was of brothers-in-
law, but the evidence on record shows them as
employer and employee. Both the witnesses, by
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
forwarding Exh.35, appears to have put a claim of
their damages, which they had assessed of
Rs.5,50,000/-. In the application Exh.35 they had
given mononyms of six persons, while the trial was
against nine, the learned Judge convicted four of them.
Exh.35 as alleged to have been given by PW2 states
that the persons named had come with weapons, while
no such evidence has been given by PW3 of the
accused being armed with weapons.
56. Analysing the evidence of PW2-Liyakat Karim Vohra,
the trial Court has made observation that Exhibit 35 is
not dated. However, the application seems to be
addressed to the Anand Town Police Inspector and
there in, names of Rinku Patel, Sachin, Ashok
Banarasi, Pitul Patel and Nitish Dhobi have been
mentioned.
57. The document-Exhibit 35 had not been produced
alongwith the charge-sheet, to infer that the
document-Exhibit 35 was in the custody of police and
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
had become the part of the charge-sheet. Without any
endorsement of its receipt, such assumption cannot be
made by the Court of it being given to the police, as
addressed. Further, PW13-the Investigating Officer
has not referred to Exhibit 35, who had received the
investigation from deceased Police Inspector-P.R.
Bhatt. PW13 had verified Exhibit 50 by Police
Inspector-P.R. Bhatt dated 09.03.2002 making a
prayer to Judicial Magistrate First Class, Anand to
invoke Sections 436, 454, 457, 380, 427, 188. Further,
witness-PW2 has not stated on what date he had given
Exhibit 35 to Anand Town Police Inspector.
58. Exhibit 35 cannot be accepted in evidence unless the
recipient of the document admits of having received it,
otherwise in every trial, witnesses would produce such
statement to improvise their case and Court would be
relying on it for their conclusion, which is not
permissible in law. The document Exhibit 35
produced during the trial after the completion of
investigation and filing of chargesheet, cannot be
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
considered as a previous statement.
59. Section 145 of the Indian Evidence Act, 1872 is
provided with regard to cross examination as to
contemplates statement made by a person to some
authority. Mere statement written by him addressing
some authority and not forwarding or handing it to the
concerned addressee cannot be considered as a
previous statement of any witness.
60. In the case of State (NCT of Delhi) v. Mukesh reported
in (2014) 15 SCC 661, it was observed that it must be
confined to statements made by witness before the
police during investigation and not thereafter and in
Paragraph 10, it was observed as under :-
"10. Having carefully considered the submissions made on
behalf of the respective parties, we are inclined to hold that,
from the scheme of the Code of Criminal Procedure and the
Evidence Act, it appears that the investigation and the
materials collected by the prosecution prior to the filing of the
charge-sheet under Section 161 of the Code, are material for
the purposes of Section 145 of the Evidence Act, 1872. The
expression "previous statements made" used in Section 145 of
the Evidence Act, cannot, in our view, be extended to include
statements made by a witness, after the filing of the charge-
sheet. In our view, Section 146 of the Evidence Act also does
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
not contemplate such a situation and the intention behind the
provisions of Section 146 appears to be to confront a witness
with other questions, which are of general nature, which could
shake his credibility and also be used to test his veracity. The
aforesaid expression must, therefore, be confined to statements
made by a witness before the police during investigation and
not thereafter."
61. Thus, the basic necessity for the prosecution was to
prove that the statement was before police. None of
police witnesses-PW5, PW12 or PW13 said that the
statement-Exhibit 35 was given before them.
62. Section 157 of the Indian Evidence Act is in context to
the former statement, which reads as under :-
"157. Former statements of witness may be proved to
corroborate later testimony as to same fact.
In order to corroborate the testimony of a witness, any former
statement made by such witness relating to the same fact, at or
about the time when the fact took place, or before any
authority legally competent to investigate the fact, may be
proved."
63. As noted in the case of State of Tamil Nadu v. Suresh
reported in (1998) 2 SCC 372, Section 157 envisages
two categories of statement which can be used for
corroboration. First is the statement made by a
witness to any person at or, about the time when the
fact took place. The second is the statement made by
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
him to any authority legally bound to investigate the
fact. If the statement is made to an authority
competent to investigate the fact, such statement gains
admissibility, no matter that it was made long after the
incident. But if the statement was made to a non-
authority, it looses its probative value due to lapse of
time.
64. The meaning of expression "at or about the time when
the fact took place" in Section 157 of the Evidence Act
should be understood in the context to the facts and
circumstances of each case. The test to be adopted,
therefore, is to see whether the witness had the
opportunity to concoct or to have been tutored. For
that observation, reliance is placed in the State of
Tamil Nadu v. Suresh (supra), where the observation
recorded is as under in Paragraph 28.
28. We think that the expression "at or about the time when
the fact took place" in Section 157 of the Evidence Act should
be understood in the context according to the facts and
circumstances of each case. The mere fact that there was an
intervening period of a few days, in a given case, may not be
sufficient to exclude the statement from the use envisaged in
Section 157 of the Act. The test to be adopted, therefore, is this:
Did the witness have the opportunity to concoct or to have
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
been tutored? In this context the observation of Vivian Bose, J.
in Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR
1952 SC 54 : 1952 Cri LJ 547] is apposite:
There can be no hard and fast rule about the 'at or about'
condition in Section 157. The main test is whether the
statement was made as early as can reasonably be expected in
the circumstances of the case and before there was opportunity
for tutoring or concoction."
(emphasis supplied)
65. Exhibit 35 is not the statement of the witness based on
his own knowledge, by way of observing and seeing the
incident. PW2 says that the averment in the document
and names as noted in this document at Exhibit 35
were as given by PW3-brother-in-law and PW14-uncle.
While PW14 though had informed about the incident
to PW2, but PW14 had very explicitly given evidence
that he had not seen any of the accused in the mob.
The trial Court has not concluded in the reasoning as
to why PW14 should not be believed.
66. The evidence has also been recorded by the learned
Judge that whatever oil was there, was looted. PW2
was in the business of lubricating oil. There is no
investigation in this respect, if the oil was looted by the
accused, then the actual connection to the crime of the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
accused could have been proved.
67. PW3-Irfan Yusuf Vohra who has been believed by the
trial Court for ordering conviction, has though stated
that the oil bucket and oil cans were thrown out from
both the shops and put to fire, the panchnama at
Exhibit 40 does not show the presence of oil near Shop
No.5 and 6. PW2 is the owner of the shop and had not
gone to the place of incident and to his shop. PW3-
Irfan Yusuf Vohra (brother-in-law) who was the
employee of PW2, stated in the cross examination that
he had not gone to police to give complaint of the
incident. And for the first time after the incident on
01.03.2002, he went to the police station on
17.03.2002.
68. The learned trial Court Judge has made a observation
of the deposition of PW3 whereby he has affirmed that
he cannot definitely say about the part played and who
was involved in the breakage. PW3 generalized by
deposing that all the members of the mob were
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
breaking things.
69. PW3's evidence named the person who had broken his
shop. Merely naming the person without describing
about the prosecution of common object would not be
sufficient enough to implicate the persons as accused,
as contemplated under Section 141 IPC.
70. More specifically when charge under Section 148 IPC
of rioting with deadly weapon had been invoked, to
find whether the accused had gathered in an unlawful
assembly in prosecution of common object, with deadly
weapons, or instruments used to cause fire.
71. The motive of the witness PW2 and PW3 could also be
gathered as their evidence was for quantifying the
damages to Rs.5,50,000/-. The panchnama at Exhibit
40 by police has not recorded such damages at their
shop, nor the form of damage to oil buckets and oil
cans. The person from neighboring shop No.6 who
also was in the business of oil has not come forward to
depose such facts. The witness-PW3-Irfan Yusuf
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Vohra is a partisan witness, his evidence cannot be
believed without corroboration from other witness,
which in this case PW14 who was an eye witness with
PW3, who both had gone on same bike, has not
supported PW3. The conviction on the basis of the
deposition of PW3 by the trial Court is not safe without
corroboration. The witness-PW3 has gone to Police
Station only on 17.03.2002. He has the motive to gain
compensation for his shop. Further the incident by
the mob is the aftermath of Godhra incident and when
a mob of 100-150 persons were involved, without
corroboration and the specific evidence of individual
act of each appellant-accused no conviction can
sustain.
72. In the case of Ali Molah and Another (supra) relied
upon by learned advocate Mr. Vijay Patel, it was held
by the Hon'ble Apex Court that the conviction can be
based on the testimony of single eyewitness if he is
wholly reliable. Corroboration is required when he is
only partly reliable. The conduct of the witness in not
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
telling anyone about the occurrence till next day was
found unnatural, creating an impression that he had
not witnessed the incident. The witness had not
appeared before the Investigating Officer who was
camping in his village. Hence, his plea that he was
frightened and had no courage to inform anyone about
the occurrence was not found maintainable. In the
circumstance of the case, it was held that no
conviction could be found on his uncorroborated
testimony.
73. The decision of Girishbhai Mohanbhai Sharma (supra)
was referred by learned advocate Mr. Vijay Patel, in
Paragraphs 30 and 31, it was held as under :-
"30. Their evidence also suffers from the same effect of
nondisclosure of the incident for three days. They do not
disclose to anyone about having witnessed such an incident. It
is only after the police arrived then they claimed to be eye
witnesses.
31. In the opinion of this Court, therefore, the prosecution
cannot be said to have proved the guilt of the accused to the
hilt, howsoever gruesome the crime may be. Only the guilty
can be punished and that guilt has to be established by
prosecution beyond reasonable doubt. In the instant case, the
evidence of eye witnesses is shaky and is not supported by any
corroborative piece of evidence. The conduct of the eye
witnesses makes their evidence more shaky. We are therefore,
of the view that the trial Court erred in relying upon such
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
evidence and in recording conviction."
73.1 In the instant case PW2 and PW3, sat tight, and only
on 17.03.2000, they said to have gone to the police.
The police at the place of incident was the one engaged
in bandobast, but Anand is a small place, where Police
Station would be at a reasonable distance. Till
17.03.2000, PW2 and PW3, had not disclosed the
name. They had not disclosed to anyone of having
witnessed the incident. The evidence of PW3 as eye-
witness is not corroborated by any other witnesses
examined much less PW14 who had accompanied him.
So no reliance can be placed as the un-corroborated
evidence of PW3 who even had failed to identify the
accused in the Court.
74. Contention was also raised about non-referring the
circumstances formed on vital evidence recorded
against the accused under Section 313 of Cr.PC. The
accused were not confronted with the evidence against
them. It was argued that the evidence upon which
conviction is based had not been put to the accused to
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
be confronted and explained. The evidence of PW3-
Irfan Yusuf Vohra giving names of accused had not
been put to the present appellants, thus, learned
advocate Mr. Vijay Patel contended that the trial gets
vitiated. Nine accused before the trial Court were
individually asked to explain circumstances appearing
in the evidence against them. Section 313 of Cr.PC is
an enabling provision. Under Section 313, the accused
has a duty to furnish an explanation in his statement
regarding any incriminating material that has been
produced against him. The accused has the freedom
to remain silent during the investigation, as well as
before the Court and the accused may even choose to
remain silent or even remain in complete denial when
his statement under section 313 is being recorded.
However, in such an event, the Court would be entitled
to draw an inference including such adverse inference,
against the accused as may be permissible in
accordance with law. This observation gets support
from the decision of Phula Singh v. State of Himachal
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Pradesh reported in AIR 2014 SC 1256.
75. Section 313 of Cr.PC is reproduced hereinunder for
ready reference:-
"313. Power to examine the accused.
(1)In every inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances appearing in
the evidence against him, the Court -
(a)may at any stage, without previously warning the accused,
put such questions to him as the Court considers necessary;
(b)shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence, question
him generally on the case :Provided that in a summons-case,
where the Court has dispensed with the personal attendance of
the accused, it may also dispense with his examination under
clause (b).
(2)No oath shall be administered to the accused when he is
examined under sub-section (1).
(3)The accused shall not render himself liable to punishment
by refusing to answer such questions, or by giving false
answers to them.
(4)The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for
or against him in any other inquiry into, or trial for, any other
offence which such answers may tend to show he has
committed.
(5)[The Court may take help of Prosecutor and Defence Counsel
in preparing relevant questions which are to be put to the
accused and the Court may permit filing of written statement
by the accused as sufficient compliance of this
section.] [Inserted by Code of Criminal Procedure (Amendment)
Act, 2008 (5 of 2009), Section 22.]
76. The law is summarized on the subject, of the
consequences of omission to put questions on
incriminating circumstances appearing in the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
prosecution evidence and the ways of curing the same
in the case of Raj Kumar @ Suman v. State (NCT of
Delhi) reported in (2023) SCC Online SC 609 wherein
Paragraph 17 reads thus :-
"The law consistently laid down by this Court can be
summarized as under:
(i) It is the duty of the Trial Court to put each material
circumstance appearing in the evidence against the accused
specifically, distinctively and separately. The material
circumstance means the circumstance or the material on the
basis of which the prosecution is seeking his conviction;
(ii) The object of examination of the accused under Section 313
is to enable the accused to explain any circumstance appearing
against him in the evidence;
(iii) The Court must ordinarily eschew material circumstances
not put to the accused from consideration while dealing with
the case of the particular accused;
(iv) The failure to put material circumstances to the accused
amounts to a serious irregularity. It will vitiate the trial if it is
shown to have prejudiced the accused;
(v) If any irregularity in putting the material circumstance to
the accused does not result in failure of justice, it becomes a
curable defect. However, while deciding whether the defect can
be cured, one of the considerations will be the passage of time
from the date of the incident;
(vi) In case such irregularity is curable, even the appellate court
can question the accused on the material circumstance which
is not put to him; and
(vii) In a given case, the case can be remanded to the Trial
Court from the stage of recording the supplementary statement
of the concerned accused under Section 313 of Cr.PC.
(viii) While deciding the question whether prejudice has been
caused to the accused because of the omission, the delay in
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
raising the contention is only one of the several factors to be
considered."
77. It is also relevant to refer to paragraph 20 of the
decision in Raj Kumar's case (supra) and it reads
thus :-
"20. Even assuming that the defect or irregularity was curable,
the question is whether today, the appellant-accused can be
called upon to explain the said circumstance. More than 27
years have passed since the date of the incident. Considering
the passage of time, we are of the view that it will be unjust
now at this stage to remit the case to the Trial Court for
recording further statement of the appellant under Section 313
of CrPC. In the facts of the case, the appellant cannot be called
upon to answer something which has transpired 27 years back.
There is one more aspect of the matter which persuaded us not
to pass an order of remand. The said factor is that the
appellant has already undergone incarceration for a period of
10 years and 4 months."
78. Here in the present case, the evidence of PW3 who was
examined as an eye witness to incident, and relying on
his evidence, the learned trial Court Judge has
convicted the appellants. The vital evidence of PW3
naming the accused as Alpesh Chako, Ashok Sheth,
Ashok Kodilo, Rinku Patel, Mitul Patel, Sachin, Mitesh
Dhobhi, and PW3 knowing them had not been put to
the appellants, as an accused during the trial for their
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
further statement under Section 313 of Cr.PC. The
accused were not confronted with this part of evidence
recorded during the trial. As noted in Raj Kumar
(supra), if there is failure to put material
circumstances to the accused, then it would amount to
serious irregularities which would vitiate the trial if it
is shown to have prejudiced the accused. Paragraph
20 in the case of Raj Kumar (supra) as referred
hereinabove, has dealt with the issue of remitting the
case to the trial Court to correct the irregularity or
defect. Here the present matter is of the year 2005,
the judgment was delivered on 29.05.2006 and now it
has been more than 19 years which has passed,
therefore, it would not be in the interest of the accused
to remit or remand the matter to the trial Court from
the stage of recording the supplementary statement of
the concerned accused under Section 313 of Cr.PC.
The evidence which was omitted to be raised before the
accused of the witness naming them and connecting
them to the crime whether has resulted into material
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
prejudice to the accused is required to be examined on
the facts of the case depending whether the accused
had the opportunity to cross examine the witness.
From the cross examination on record, it would
transpire that the accused had cross examined the
witness at length and the said evidence was before the
accused during the trial. The charge was framed and
the accused faced the trial. Hence, it cannot be said
that there was any material prejudice, however, it can
be considered that the accused were adversely affected
since they had no opportunity themselves to deny this
evidence against them. But it will not only on that
count vitiate the whole trial.
79. In the case of Kalicharan and Others v. State of Uttar
Pradesh reported in 2022 Live Law (SC) 1027, the
Hon'ble Supreme Court observed that while
questioning an accused under Section 313 Cr.PC, he
must be explained the circumstances in the evidence
appearing against him. The observation of the
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
Hon'ble Supreme Court is quoted as "If the accused is
not explained the important circumstances appearing
against him in the evidence on which his conviction is
sought to be based, the accused will not be in a
position to explain the said circumstances brought on
record against him. He will not be able to properly
defend himself."
79.1 In the judgment of Kalicharan (supra), it has been
noted as under :-
"Questioning an accused under Section 313 Cr.PC is not an
empty formality. The requirement of Section 313 Cr.PC is
the accused must be explained the circumstances
appearing in the evidence against him so that accused can
offer an explanation. After an accused is questioned under
Section 313 Cr.PC, he is entitled to take a call on the
question of examining defence witnesses and leading other
evidence. If the accused is not explained the important
circumstances appearing against him in the evidence on
which his conviction is sought to be based, the accused will
not be in a position to explain the said circumstances
brought on record against him.
80. It is only after the entire evidence is rolled out, the
accused would be in a position to express his defence
and to give explanation to the circumstances
appearing in evidence against him. Such an
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
opportunity given to the accused is part of a fair trial,
but if no due consideration is given and such exercise
of questioning the accused is done in an unsatisfactory
manner then it may result in imperfect appreciation of
evidence. Explanation given by the accused, to the
circumstances appearing in the evidence against
accused, the answers given by the accused may be
taken into consideration. Failure to put material
circumstances to the accused amounts to serious
irregularity, which may vitiate the trial if the
irregularity has prejudiced the accused.
81. Remanding back the matter for recording the
explanation of the accused would not be ideal, but it
can be necessarily be said that omission to refer those
circumstances has effected the appreciation by the
trial Court Judge.
82. The contention of learned advocate Mr. Vijay Patel for
the appellants that conviction of less than five persons
cannot sustain under Section 149 IPC, the same can
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
be dealt with by answering that if the unlawful
assembly of more than five persons have been put to
trial and large number of accused are acquitted and
the remaining who have been convicted are less than
five cannot vitiate the conviction under Section 149
read with the substantive offence if the Court has
taken care to find that there were other persons who
might not have been identified or convicted but were
party to the crime and together constituted the
statutory number. As laid down in the case of Dharam
Pal v. State of U.P. reported in (1975) 2 SCC 596,
where the Hon'ble Supreme Court held as under :-
"...If, for example, only five known persons are alleged to
have participated in an attack but the courts find that two
of them were falsely implicated, it would be quite natural
and logical to infer or presume that the participants were
less than five in number. On the other hand, if the Court
holds that the assailants were actually five in number, but
there could be a doubt as to the identity of two of the
alleged assailants, and, therefore, acquits two of them, the
others will not get the benefit of doubt about the identity of
the two accused so long as there is a firm finding, based on
good evidence and sound reasoning, that the participants
were five or more in number..."
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
83. The learned Trial Court Judge had erred in the
appreciation of the evidence. Conviction is not based
on reliable and corroborative evidence. The
identification of the accused have not been proved
during the trial. The present appellants whether were
the member of the unlawful assembly was not proved,
and that they had common object of creating arson
had not been proved, and any act of the appellants-
accused in prosecution of the common object, of
setting things on fire and damaging the private and
public property had not been proved during the trial.
84. In sequitur on the basis of what has been discussed
hereinabove and for the reasons given, the appeals
must succeed.
85. The appeals are allowed. The judgment of conviction
and order of sentence dated 29.05.2006 passed by the
learned 1st Fast Track Court, Anand in Sessions Case
No.23 of 2006 (Old Sessions Case No.108 of 2005) is
quashed and set aside. The appellants herein are
NEUTRAL CITATION
R/CR.A/1067/2006 JUDGMENT DATED: 28/07/2025
undefined
acquitted of all the charges leveled against them. Bail
bond stands discharged. The amount of fine, if any
paid, be refunded to the appellants herein. Record and
proceedings be sent back to the concerned Trial Court
forthwith.
(GITA GOPI,J)
Caroline / Maulik
