Gujarat High Court
State Of Gujarat vs Bilal Ismail Abdul Majid Sujela @ Bilal … on 9 October, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, G.R.Udhwani
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL CONFIRMATION CASE NO. 1 of 2011
With
CRIMINAL CONFIRMATION CASE NO. 2 of 2011
TO
CRIMINAL CONFIRMATION CASE NO. 10 of 2011
With
CRIMINAL APPEAL NO. 556 of 2011
WITH
CRIMINAL APPEAL NO. 557 of 2011
With
CRIMINAL APPEAL NO. 585 of 2011
TO
CRIMINAL APPEAL NO. 587 of 2011
With
CRIMINAL APPEAL NO. 590 of 2011
TO
CRIMINAL APPEAL NO. 593 of 2011
With
CRIMINAL APPEAL NO. 628 of 2011
WITH
CRIMINAL APPEAL NO. 629 of 2011
With
CRIMINAL APPEAL NO. 713 of 2011
With
CRIMINAL APPEAL NO. 717 of 2011
With
CRIMINAL APPEAL NO. 718 of 2011
With
CRIMINAL APPEAL NO. 727 of 2011
TO
CRIMINAL APPEAL NO. 729 of 2011
With
CRIMINAL APPEAL NO. 732 of 2011
WITH
CRIMINAL APPEAL NO. 733 of 2011
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With
CRIMINAL APPEAL NO. 743 of 2011
WITH
CRIMINAL APPEAL NO. 744 of 2011
With
CRIMINAL APPEAL NO. 798 of 2011
With
CRIMINAL APPEAL NO. 831 of 2011
With
CRIMINAL MISC.APPLICATION NO. 17914 of 2011
In
CRIMINAL APPEAL NO. 586 of 2011
With
CRIMINAL MISC.APPLICATION NO. 11376 of 2014
In
CRIMINAL MISC.APPLICATION NO. 17914 of 2011
With
CRIMINAL MISC.APPLICATION NO. 11629 of 2014
In
CRIMINAL APPEAL NO. 713 of 2011
WITH
CRIMINAL MISC.APPLICATION NO. 3101 of 2015
In
CRIMINAL APPEAL NO. 556 of 2011
With
CRIMINAL MISC.APPLICATION NO. 2168 of 2015
In
CRIMINAL APPEAL NO. 590 of 2011
With
CRIMINAL MISC.APPLICATION NO. 1665 of 2015
In
CRIMINAL APPEAL NO. 629 of 2011
With
CRIMINAL MISC.APPLICATION NO. 4143 of 2015
In
CRIMINAL APPEAL NO. 743 of 2011
With
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
STATE OF GUJARAT….Appellant(s)
Versus
BILAL ISMAIL ABDUL MAJID SUJELA @ BILAL HAJI….Respondent(s)
Appearance:
MR JAYANTKUMAR M PANCHAL, SPECIAL PUBLIC PROSECUTOR, SIT
GUJARAT STATE; WITH NARENDRA N PRAJAPATI, SPECIAL
ASSISTANT PUBLIC PROSECUTOR, SIT GUJARAT STATE; WITH MR
ALPESH Y KOGJE, SPECIAL ASSISTANT PUBLIC PROSECUTOR, SIT
GUJARAT STATE; WITH MR KAMALNAYAN J PANCHAL, ADDITIONAL
PUBLIC PROSECUTOR, SIT GUJARAT STATEMR RS JAMUAR, SPECIAL PUBLIC PROECFUTOR FOR SIT
MR AD SHAH, MS NITYA RAMKRISHNAN SENIOR ADVOCATE WITH
MR SM VATSA, MR IH SYED, MR MA KHARADI, MR YM THAKKAR,
MR MHM SHAIKH, MR KHALID G SHAIKH, MR EKANT AHUJA, FOR
ACCUSED PERSONSPage 3 of 988
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MR BB NAIK SENIOR ADVOCATE WITH MR VIJAY PATEL, MR
SURESH B BHATT, MR HM PRACHCHHAK, MR HARNISH V DRAJI, MR
PRAVIN GONDALIA, MR JAYESH A DAVE, MR SAMIR J DAVE, MR
BHARAT K DAVE, MR SUDHANSHU S PATEL, MR SURESH B BHATT,
MR YATIN SONI AND NIRAV C THAKKAR FOR VICTIMSCORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE G.R.UDHWANIDate : 09/10/2017
COMMON CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE
&
HONOURABLE MR.JUSTICE G.R.UDHWANI)VOLUMEI
PART I1 All these cases arise out of the judgment and order dated
01.03.2011 rendered by the learned Sessions Judge, Panchmahals at
Godhra, Camp at Central Jail, Sabarmati, Ahmedabad in Sessions Case
No.69 of 2009 to Sessions Case No.86 of 2009 and Sessions Case
No.204 of 2009.
1.2 Upon conviction of 11 accused under Section 302 of the
Indian Penal Code and sentencing them for capital punishment `to be
hanged by neck till death’ by the learned Sessions Judge, Confirmation
Case Nos.1 to 10 of 2011 are referred to this Court under Section 28(2)
read with Section 366 of the Criminal Procedure Code, 1973 [for
short, `the Code’] arising out of Sessions Case Nos.69, 70, 71 [2Page 4 of 988
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accused], 72, 73, 77, 79, 81, 82 and 84 of 2009.
1.3 Criminal Appeal Nos.556, 557, 585, 586, 587, 590, 591,
592, 593, 628 and 629 of 2011 are filed by the accused persons under
Section 374(2) of the Code challenging the conviction under Section
302 and other offences of the IPC and other penal statutes and
sentencing 11 accused for capital punishment and 20 accused for life
imprisonment, as the case may be.
1.4 Criminal Appeal Nos.713, 717, 718, 727, 728, 729, 732,
733, 798, 831 of 2011 are filed by the victims under Section 372 of
the Code against acquitting accused or convicting for lesser offence or
awarding inadequate or no compensation.
1.5 Criminal Appeal No.744 of 2011 is filed by the State of
Gujarat under Section 377 of the Code for enhancement of sentence
awarded to the accused persons.
1.6 Criminal Appeal No.743 of 2011 is also filed by the State
of Gujarat under Section 378 of the Code against acquittal of the
accused persons for the charges levelled against them by the learned
Sessions Judge.
1.7 Criminal Misc. Application No. 17914 of 2011 [disposed
of] is filed by Salim @Salman Yusuf Sattar Zarda for taking additional
evidence under Section 391 of the Code of Criminal Procedure, 1973
in Criminal Appeal No.586 of 2011.
1.8 Criminal Misc. Application No.11376 of 2014 is filed by
Nilkanthbhai Tulsibhai Bhatiya to be joined as necessary party.
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1.9 Criminal Misc. Application No.11629 of 2014 is filed by
Nilkanthbhai Tulsibhai Bhatiya to delete Hussain Abdul Rahim Kalota –
Original Accused No.42 of Sessions Case No.69 of 2009 from Criminal
Appeal No.713 of 2011.
1.10 Criminal Misc. Application Nos.3101 of 2015, 2168 of 2015,
1665 of 2015 and 4143 of 2015 are filed seeking temporary bail.
OPERATIVE PART OF THE IMPUGNED JUDGMENT OF CONVICTION &
SENTENCE READS AS UNDER:
“Under the above circumstances, considering all the relevant
factors, this Court is unable to find any mitigating circumstances
to refrain from imposing the death penalty on the convicted
accused persons who had played role in hatching conspiracy,
collecting, unloading, storing, and shifting inflammable liquid
petrol from petrol pump to place of incident, making holes by
knife on the upper part of carboys, cutting canvas vestibule by
knife(Chharo), opening eastern side sliding door forcibly from
outside, entering into Coach S6, opening of East South corner
door of Coach S6, pouring petrol after entering into coach with
carboys, sprinkling petrol from outside, and setting the coach on
fire by putting/throwing burning rag into Coach No. S6. Though
this Court has deep sympathy for the members of the family of the
convicted accused persons, is constrained to reach the inescapable
conclusion that this is a case where imprisonment for life can
never be said to be an adequate sentence to meet the end of
justice and death sentence is required to be imposed upon the
following convicted accused persons (names shown in paraA).
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Having regard to the facts of the case and all the surrounding
circumstances, in the interest of justice, I pass the following final
order:
FINAL ORDER
ParaA The accused persons named below (in ScheduleA) are
hereby sentenced under Section235(2) of the Criminal Procedure
Code, to undergo the punishment, as mentioned in ParaB
(ScheduleB) below, for the charges proved against them.
ScheduleA
Sr. S.C.No. Accu. Name of Accused
No. No.
1 69/2009 48 Bilal Ismail Abdul Majid Sujela @Bilal Haji
2 70/2009 2 Abdul Razak Mohmmad Kurkur
3 71/2009 3 Ramjani Binyamin Behra
4 71/2009 4 Hasan Ahmed Charkha @Lalu
5 72/2009 2 Jabir Binyamin Behra
6 73/2009 1 Mehboob Khalid Chanda
7 77/2009 1 Salim @Salman Yusuf Sattar Zarda
8 79/2009 1 Siraj Mohmmad Abdul Raheman
9 81/2009 2 Irfan Abdul Majid Ghanchi Kalandar @Irfan
Bhobho
10 82/2009 1 Irfan Mohmmad Hanif Abdul Gani Pataliya
11 84/2009 1 Mehbub Ahmed Yusuf Hasan @Latiko
ScheduleB
No. Offence Punishable under Rigorous Fine Simple
Sections / Act Imprisonment (Rs.) Imprisonment
(years) in default
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(days)
1 302 r/w 120B, 149 IPC Death 1000/ 30 (thirty)
Sentence
2 307 r/w. 120B, 149 IPC 5 1000/ 30 (thirty)
3 323 r/w. 120B, 149 IPC 1 1000/ 30 (thirty)
4 324 r/w 120B, 149 IPC 2 1000/ 30 (thirty)
5 325 r/w 120B, 149 IPC 3 1000/ 30 (thirty)
6 326 r/w. 120B, 149 IPC 4 1000/ 30 (thirty)
7 332 r/w. 120B, 149 IPC 2 1000/ 30 (thirty)
8 435 r/w 120B, 149 IPC 5 1000/ 30 (thirty)
9 395 r/w. 120B, 149 5 1000/ 30 (thirty)
10 397 r/w. 120B, 149 IPC 7
11 143 r/w. 120B, 149 IPC 6 (Months) 1000/ 30 (thirty)
12 147 r/w. 120B, 149 IPC 1 1000/ 30
13 148 r/w.120B, 149 IPC 2 1000/ 30 (thirty)
14 153/A r/w.120B, 149 1 1000/ 30 (thirty)
IPC
15 186 r/w. 120B, 149 IPC 3 (Months) 500/ 7 (seven)
16 188 r/w. 120B, 149 IPC 1 (Month) 200/ 7 (seven)
17 Sec.141 Indian Railways 1 500/ 7 (seven)
Act r/w. 120B, 149 IPC
18 Sec.150 Indian Railways 3
Act r/w. 120B, 149 IPC
19 Sec.151 Indian Railways 5 1000/ 30 (thirty)
Act r/w. 120B, 149 IPC
20 Sec.152 Indian Railway 5
Act r/w. 120B, 149 IPC
21 Sec.3 Prevention of 6 (Months) 1000/ 30 (thirty)
Damages to Pub. Pro. Act
r/w. 120B, 149 IPC
22 Sec.4 Prevention of 1 1000/ 30 (thirty)
Damages to Pub.Pro. Act
r/w. 120B, 149 IPC
23 Sec.135(1) Bombay 30 (Days) 100/ 7 (seven)
Police Act r/w. 120B,
149 IPC
ParaB/1 Execution of Death Sentence:
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As reaffirmed by the Hon’ble Supreme Court, the execution of
sentence of death ‘by hanging till death’ is not ‘ultra vires’ the
Constitution, and the hanging by neck till death is a scientific and
one of the least painful methods of execution of death sentence.
Accordingly, the convicted accused persons named above in Para
A (ScheduleA), ” be hanged by neck till death”. However, the
execution of sentence of death imposed (Section53, Partfirst),
shall be subject to confirmation by the Hon’ble High Court, as
provided in Section28(2) of the Criminal Procedure Code.
ParaC The accused persons named below (in ScheduleC) are
hereby sentenced under Section235(2) of the Criminal Procedure
Code, to undergo the punishment, as mentioned in ParaD
(ScheduleD) below, for the charges proved against them.
ScheduleC
Sr. S.C.No. Accu. Name of Accused
No. No.
1 69/2009 29 Suleman Ahmad Hussain @Tiger - Musalman
2 69/2009 40 Abdul Rehman Abdul Majid Dhantiya
@Kankatto
3 69/2009 49 Kasim Abdul Sattar @Kasim Biryani Gaji
Ghanchi - Musalman
4 69/2009 50 Irfan Siraj Pado Ghandhi - Musalman
5 69/2009 51 Anwar Mohmmad Mehda @Lala Shaikh
6 71/2009 1 Siddik @Matunga Abdullah Badam Shaikh
7 71/2009 2 Mehbbob Yakub Mitha @Popa
8 75/2009 1 Soheb Yusuf Ahmed Kalandar
9 75/2009 5 Saukat @Bhano Farook Abdul Sattar Pataliya
10 75/2009 6 Siddik Mohmmad Mora (Moraiya)
11 77/2009 2 Abdul Sattar Ibrahim Gaddi Asla
12 78/2009 1 Abdul Rauf Abdul Majid Isa @Dhesli @Kamli
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13 78/2009 2 Yunus Abdulhaq Samol @Ghadiyali
14 78/2009 5 Ibrahim Abdul Razak Abdul Sattar Samol
@Bhano
15 79/2009 3 Bilal Abdullah Ismail Badam Ghanchi
16 79/2009 4 Farook @Haji Bhuriyo Abdul Sattar Ibrahim
Musalman - Gaji
17 82/2009 2 Ayub Abdul Gani Ismail Pataliya
18 82/2009 3 Saukat Abdullah Maulvi Ismail Badam
19 82/2009 4 Mohmmad Hanif @Hani Abdullah Maulvi
Ismail Badam
20 85/2009 1 Saukat Yusuf Ismail Mohan @Bibino
ParaD The following punishments (as mentioned below in
ScheduleD) are awarded for the respective charges proved
against the convicted accused persons shown above in ParaC
(ScheduleC).
ScheduleD
No. Offence Punishable under Rigorous Fine Simple
Sections / Act Imprisonment (Rs.) Imprisonment
(years) in default
(days)
1 302 r/w 120B, 149 IPC Life 1000/ 30 (thirty)
Imprisonment
2 307 r/w. 120B, 149 IPC 5 1000/ 30 (thirty)
3 323 r/w. 120B, 149 IPC 1 1000/ 30 (thirty)
4 324 r/w 120B, 149 IPC 2 1000/ 30 (thirty)
5 325 r/w 120B, 149 IPC 3 1000/ 30 (thirty)
6 326 r/w. 120B, 149 IPC 4 1000/ 30 (thirty)
7 332 r/w. 120B, 149 IPC 2 1000/ 30 (thirty)
8 435 r/w 120B, 149 IPC 5 1000/ 30 (thirty)
9 395 r/w. 120B, 149 5 1000/ 30 (thirty)
10 397 r/w. 120B, 149 IPC 7
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11 143 r/w. 120B, 149 IPC 6 (Months) 1000/ 30 (thirty)
12 147 r/w. 120B, 149 IPC 1 1000/ 30 (thirty)
13 148 r/w.120B, 149 IPC 2 1000/ 30 (thirty)
14 153/A r/w.120B, 149 1 1000/ 30 (thirty)
IPC
15 186 r/w. 120B, 149 IPC 3 (Months) 500/ 7 (seven)
16 188 r/w. 120B, 149 IPC 1 (Month) 200/ 7 (seven)
17 Sec.141 Indian Railways 1 500/ 7 (seven)
Act r/w. 120B, 149 IPC
18 Sec.150 Indian Railways 3
Act r/w. 120B, 149 IPC
19 Sec.151 Indian Railways 5 1000/ 30 (thirty)
Act r/w. 120B, 149 IPC
20 Sec.152 Indian Railsay 5
Act r/w. 120B, 149 IPC
21 Sec.3 Prevention of 6 (Months) 1000/ 30 (thirty)
Damages to Pub. Pro. Act
r/w. 120B, 149 IPC
22 Sec.4 Prevention of 1 1000/ 30 (thirty)
Damages to Pub.Pro. Act
r/w. 120B, 149 IPC
23 Sec.135(1) Bombay 30 (Days) 100/ 7 (seven)
Police Act r/w. 120B,
149 IPC
ParaE Sentence of imprisonment, except default sentence,
awarded above, shall run concurrently and not consecutively.
ParaF The above named convicted accused persons shall be
entitled to get benefit of setoff, of the period of their respective
detention as an UnderTrial Prisoner, during the investigation and
trial, as provided in Section428 of the Criminal Procedure Code.
ParaG Reference be made to the Hon’ble High Court for
confirmation of death sentence.
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ParaH Muddamal Articles to be preserved, as certain accused
persons are still absconding.
ParaI Original judgment and one certified copy thereof, be kept
with the records of original Sessions Case No. 69/2009, whereas a
softcopy of the judgment be kept with records of remaining each
consolidated Sessions Case.
ParaJ Certified copy of the judgment be provided to each
convicted accused person, free of cost, as expeditiously as
possible.
ParaK This Court places on record its appreciation for admirable
cooperation extended by the Ld. Special Public Prosecutors
appearing for the prosecution and the Ld. Advocates for the
defence, as well as the Members/ Police Officials of the SIT and
also, the Jail Authorities, in smoothly conducting the entire trial
proceedings at Central Jail, Sabarmati, Ahmedabad”.
PART II
1 Before we proceed to record details about facts of all these
reference cases and various appeals and submissions made by learned
counsels for defence and learned Special Public Prosecutors for the
respective parties, we would like to reproduce para 9 of the decision of
the Apex Court in the case of Masalti vs. State of U.P. reported in AIR
1965 SC 202 about the duty caste upon the High Court while exercising
its appellate powers in appeals, more particularly, in reference cases in
which convicts are imposed sentence for capital punishment for
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conviction under Section 302 of IPC, which are referred by the learned
trial Judge. Para 9 of the above judgment read as under:
“9. We are not impressed by this argument. It is perfectly true
that in a murder trial when an accused person stands charged
with the commission of an offence punishable under S. 302, he
stands the risk of being subjected to the highest penalty
prescribed by the Indian Penal Code; and naturally judicial
approach in dealing with such cases has to be cautious,
circumspect and careful. In dealing with such appeals or
reference proceedings where the question of confirming death
sentence is involved, the High Court has also to deal with the
matter carefully and to examine all relevant and material
circumstances before upholding the conviction and confirming
the sentence of death. All arguments urged by the appellants
and all material infirmities pressed before the High Court on
their behalf must be scrupulously examined and considered
before a final decision is reached. The fact that 10 persons had
been ordered to be hanged by the trial Judge necessarily
imposed a more serious and onerous responsibility on the High
Court in dealing with the present appeals. ……….”
2 That entire record viz. exhibited documents, prosecution
witnesses, description thereof, relevant pages of the paper book and
admitted documents, are reproduced herein below, as TableA and
TableB respectively:
TABLEA
S.No. Exh.No. PW Description Page
Nos.
1 Rojnama 1 to 327
2 28 List of Document (complainant)
3 29 Charge 328 to
508
4 30 to 37 Statements of Accused Nos. 1 to 8 509 to
1775
5 38 to 46 Statements of Accused Nos. 10 to 1776 toPage 13 of 988
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18 3439
6 47 to 71 Statements of Accused Nos. 20 to 3440 to
46 7877
7 72 to 79 Statements of Accused Nos. 47 to 8255 to
54 9722
8 83 Receipts of Muddamal 9723 to
9770
9 84 PW1 Deposition of Sureshbhai Dhanamal 9771 to
9784
10 85 Panchnama (Mark 28/3) 9785 to
9789
11 86 Panchnama (Mark 28/339) 9790 to
9791
12 92 PW2 Deposition of Pavan Kumar 9792 to
Narayandas 9801
13 93 Panchnama (Mark 28/4) 9802 to
9805
14 94 to 95 Slip of Signature on Carba by 9806
Panch
15 97 PW3 Deposition of Inderkumar 9807 to
9812
16 98 Panchnama (Mark 28/48) 9812 to
9814
17 100 PW4 Deposition of Harshadkumar 9814 to
Nagindas Rana (Complainant) 9822
18 101 Panchnama (Mark 28/50) 9823 to
9824
19 102 Passport of AccusedBilal Ismail 9825
Sujela, Muddamal Article No.71
20 103 Submission of Deposition of witness 9826 to
Harsadbhai N.Rana S.C.133102 9827
Exh.120 (Certified Copy) by Adv.
Hasan
21 104 PW5 Deposition of Devidas 9828 to
Ghanshyamdas Lakhani 9835
(Complainant)
22 105 Panchnama (Mark 28/52) 9836 to
9837
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23 106 PW6 Deposition of Prakash Kundandas 9838 to
(Complainant) 9842
24 107 Panchnama (Mark 28/54) 9843 to
9844
25 110 PW7 Deposition of Mohanlal Pesumal 9844 to
Dhanwani (Complainant) 9849
26 111 Panchnama (Mark 28/53) 9850 to
9851
27 112 PW8 Deposition of Hemang Hasmukhlal 9852 to
Patel (Complainant) 9861
28 113 Panchnama (Mark 28/56) 9861 to
9863
29 115 PW9 Deposition of Hiralal Longmal 9864 to
(Complainant) 9868
30 116 Panchnama (Mark 28/58) 9869 to
9870
31 118 PW10 Deposition of Rajubhai Maganbhai 9871 to
Jamandas Lakhvani (Complainant) 9876
32 121 PW11 Deposition of Narendrabhai 9877 to
Jamandas Lakhvani (Complainant) 9882
33 122 Panchnama (Mark 28/59) 9883
9884
34 125 PW12 Deposition of Ajaysingh 9885 to
Rammurtisingh (Complainant) 9888
35 126 Panchnama (Mark 28/91) 9889 to
9890
36 129 PW13 Deposition of Ismial Abdul Majid 9891 to
Durves (Complainant) 9896
37 130 Panchnama (Mark 28/60) 9897 to
9898
38 133 PW14 Deposition of Mehbub Ismail 9899 to
(Complainant) 9902
39 134 Panchnama 9903 to
9904
40 135 to Receipts of Muddamal Slip sign by 9905
136 PanchPage 15 of 988
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41 137 to Receipts of Muddamal slip sign by 9906
138 Panch
42 139 PW15 Deposition by Girish Nathalal 9907 to
9912
43 140 Panchnama (Mark 28/62) 9913 to
9914
44 146 Panchnama (Mark 28/10) 9915
45 147 Panchnama (Mark 28/11) 9916
46 148 Panchnama (Mark 28/12) 9917
47 149 Panchnama (Mark 28/13) 9918
48 150 Panchnama (Mark 28/14) 9919
49 151 Panchnama (Mark 28/15) 9920
50 152 Panchnama (Mark 28/16) 9921
51 153 Panchnama (Mark 28/17) 9922
52 154 Panchnama (Mark 28/18) 9923
53 155 Panchnama (Mark 28/19) 9924
54 156 Panchnama (Mark 28/20) 9925
55 157 Panchnama (Mark 28/21) 9926
56 158 Panchnama (Mark 28/22) 9927 to
9928
57 159 Panchnama (Mark 28/23) 9929
58 160 Panchnama (Mark 28/24) 9930
59 161 Panchnama (Mark 28/25) 9931
60 162 Panchnama (Mark 28/26) 9932
61 163 Panchnama (Mark 28/27) 9933
62 164 Panchnama (Mark 28/28) 9934
63 165 Panchnama (Mark 28/29) 9935
64 166 Panchnama (Mark 28/30) 9936
65 167 Panchnama (Mark 28/31) 9937
66 168 Panchnama (Mark 28/32) 9938
67 169 Panchnama (Mark 28/33) 9939
68 170 Panchnama (Mark 28/34) 9940
69 171 Panchnama (Mark 28/35) 9941
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71 173 Panchnama (Mark 28/37) 9943
72 174 Panchnama (Mark 28/38) 9944
73 175 Panchnama (Mark 28/39) 9945
74 176 Panchnama (Mark 28/40) 9946
75 177 Panchnama (Mark 28/41) 9947
76 178 Panchnama (Mark 28/43) 9948
9950
77 179 PW16 Deposition of Karsanbhai Jadavbhai 9951 to
(Complainant) 9952
78 180 PW17 Deposition of Ramaben Kantilal 9953 to
Goswami (Complainant) 9955
79 181 Panchnama (Mark 28/8 9956 to
9963
80 182 PW18 Deposition of Arvind Kantilbhai 9964 to
9971
81 183 Panchnama (Mark 28/64) 9972 to
9976
82 184 to Slip of Muddamal sign by Panch 9977 to
191 Article No.95 9980
83 193 PW19 Deposition of Prahaldbhai 9981 to
Somabhai Patni (Complainant) 9983
84 194 Panchnama (Mark 28/65) 9984 to
9985
85 195 PW20 Deposition of Sureshbhai 9986 to
Laxmanbhai 9988
86 196 Panchnama (Mark 28/66) 9989 to
9991
87 197 PW21 Deposition of Umangbhai 9992 to
Gunwantlal Thakkar 9995
88 198 Panchnama (Mark 28/67) 9996 to
9997
89 199 Panchnama (Mark 28/68) 9998 to
9999
90 202 PW22 Deposition of Shantilal Baballas 10000
(Complainant) to
10001
91 203 Panchnama (Mark 28/52) 10002Page 17 of 988
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to
10003
92 204 PW23 Deposition of Rangitbhai 10004
Bhikhabhai (Complainant) to
10007
93 205 Panchnama (Mark 28/223) 10008
to
10009
94 206 Panchnama (Mark 28/278/A) 10010
95 209 PW24 Deposition of Manishkumar 10011
Virendrabhai Rana (Complainant) to
10016
96 210 Panchnama (Mark 28/262) 10017
97 211 Panchnama (Mark 28/263) 10018
to
10019
98 212 Slip of Muddamal sign by Panch for 10020
Mobile
99 213 Muddamal Article No.26/09/2 10021
100 215 PW25 Deposition of Trilokchand 10022
Virendrabhai Rana (Complainant) to
10028
101 216 Panchnama (Mark 28/270) 10029
to
10030
102 217 PW26 Deposition of Dasarthbhbai 10031
Shanabhai Baria (Complainant) to
10032
103 218 Panchnama (Mark 28/233) 10033
to
10034
104 219 PW27 Deposition of Bhupatsinh Motisinh 10035
Chauhan (Complainant) to
10039
105 220 Panchnama (Mark 28/225) 10040
to
10042
106 222 PW28 Deposition of Babulal Lokamal 10043
(Complainant) toPage 18 of 988
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NEUTRAL CITATIONR/CC/1/2011 CAV JUDGMENT
undefined
10045
107 223 Panchnama (Mark 28/226) 10046
to
10047
108 224 PW29 Deposition of Asokkumar 10048
Khanderav (Complainant) to
10050
109 225 Panchnama (Mark 28/228) 10051
to
10052)
110 226 PW30 Deposition of Deepakkumar 10053
Bharatbhai (Complainant) to
10056
111 227 Panchnama (Mark 28/229) 10057
112 228 Panchnama (Mark 28/232) 10058
to
10059
113 229 PW31 Deposition of Rupeshkumar 10060
Shrinivas (Complainant) to
10062
114 230 Panchnama (Mark 28/268) 10063
115 231 Panchnama (Mark 28/271) 10064
116 232 Panchnama (Mark 28/299) 10065
to
10066
117 233 PW32 Deposition of Alfaf Gulab Pathan 10067
(Complainant) to
10068
118 234 Panchnama (Mark 28/272) 10069
119 235 PW33 Deposition of Dineshbhai Mudjibhai 10070
Chauhan (Complainant) to
10072
120 236 Panchnama (Mark 28/275) 10073
121 241 PW34 Deposition of Mithilesh Katariya 10074
(Complainant) to
10076
122 242 Panchnama (Mark 28/237) 10077
toPage 19 of 988
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undefined
10078
123 244 Panchnama (Mark 28/241) 10079
to
10080
124 245 Panchnama (Mark 28/242) 10081
to
10082
125 246 Panchnama (Mark 28/243) 10083
to
10084
126 247 Panchnama (Mark 28/244) 10085
to
10086
127 248 Panchnama (Mark 28/245) 10087
to
10088
128 249 Panchnama (Mark 28/246) 10089
to
10090
129 250 Panchnama (Mark 28/248) 10091
to
10095
130 251 Panchnama (Mark 28/249) 10096
to
10097
131 252 Panchnama (Mark 28/254) 10098
to
10099
132 253 Panchnama (Mark 28/278) 10100
133 254 Panchnama (Mark 28/282) 10101
to
10102
134 255 Panchnama (Mark 28/283) 10103
135 256 Panchnama (Mark 28/288) 10104
to
10105
136 257 Panchnama (Mark 28/289) 10106
to
10107Page 20 of 988
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NEUTRAL CITATIONR/CC/1/2011 CAV JUDGMENT
undefined
137 258 Panchnama (Mark 28/295) 10108
to
10109
138 259 Panchnama (Mark 28/297) 10110
to
10111
139 260 Panchnama (Mark 28/301) 10112
to
10113
140 261 Panchnama (Mark 28/302) 10114
to
10115
141 262 Panchnama (Mark 28/304) 10116
to
10119
142 263 Panchnama (Mark 28/305) 10120
to
10121
143 264 Panchnama (Mark 28/311) 10121
to
10122
144 265 Panchnama (Mark 28/315) 10123
to
10124
145 266 Panchnama (Mark 28/316) 10125
to
10126
146 267 Panchnama (Mark 28/318) 10127
to
10128
147 268 Panchnama (Mark 28/319) 10129
to
10130
148 269 Panchnama (Mark 28/321) 10130
to
10131
149 270 Panchnama (Mark 28/323) 10131
to
10132Page 21 of 988
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NEUTRAL CITATIONR/CC/1/2011 CAV JUDGMENT
undefined
150 271 Panchnama (Mark 28/325) 10133
to
10134
151 272 Panchnama (Mark 28/328) 10135
to
10136
152 273 Panchnama (Mark 28/330) 10137
to
10138
153 274 Panchnama (Mark 28/336) 10139
154 277 PW35 Deposition of Kalyan Sriram Patil 10140
(Complainant) to
10143
155 278 Panchnama (Mark 28/247) 10144
to
10145
156 282 PW36 Depositions of Ishwarbhai Vajaji 10146
Padhiya to
10149
157 283 Panchnama (Mark 28/240) 10150
to
10151
158 284 Slip of Muddamal Sign by Panch 10152
159 286 PW37 Deposition of Tushar Babubhai 10153
Patel (Complainant) to
10156
160 287 Panchnama (Mark 28/255) 10157
to
10158
161 290 PW38 Deposition of Visandas Tarachnad 10159
(Complainant) to
10165
162 291 Panchnama (Mark 28/331) 10166
to
10168
163 292 Slip of Muddamal Sign by Panch 10169
164 293 PW39 Deposition of Ganpatbhai 10170
Jerambhai (Complainant) to
10172Page 22 of 988
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NEUTRAL CITATIONR/CC/1/2011 CAV JUDGMENT
undefined
165 294 Panchnama (Mark 28/332) 10173
to
10174
166 296 PW40 Deposition of Battusinh 10175
Rammutisinh Chauhan to
(Complainant) 10178
167 297 Panchnama (Mark 28/273) 10179
to
10180
168 299 PW41 Deposition of Mahendrabhai 10181
Laljibhai Nalvaya (Complainant) to
10199
169 301 Letter address to Executive 10200
Magistrate by Asst. Suptd. Police
Dated 35/08/2002
170 302 Identification Parade (Mark 10201
28/234) to
10203
171 303 Letter addressed to Executive 10204
Magistrate by D.S.P., Dated
7.11.2009
172 304 Copy of letter addressed by 10205
Executive Magistrate to D.S.P.,
Dated 18.11.2009
173 305 Identification Parade (Mark 10206
28/340) to
10208
174 306 Letter address to Executive 10209
Magistrate by D.S.P., dated
8.2.2003
175 307 Copy of letter address by Executive 10210
Magistrate to D.S.P., dated
14.2.2003
176 308 Identification Parade (Mark 10211
28/258) to
10213
177 309 Copy of letter addressed to 10214
Executive Magistrate by DSP.,
dated 17/02/03.
Page 23 of 988
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NEUTRAL CITATION
R/CC/1/2011 CAV JUDGMENT
undefined
178 310 Copy of Letter addressed by 10215
Executive Magistrate, to DSP, dated
18.02.2003
179 312 Identification Parade (Mark 10216
28/259) to
10219
180 313 Letter addressed to Executive 10220
Magistrate by DSP dated 2.7.2003
181 314 Copy of letter addressed by 10221
Executive Magistrate to DSP dated
4.7.2003
182 315 Identification Parade (Mark 10222
28/269) to
10224
183 316 Letter addressed to Executive 10225
Magistrate by DSP dated 29.7.2003
184 317 Copy of Letter addressed by 10226
Executive Magistrate to DSP dated
11.8.2003
185 318 Identification Parade (Mark 10227
28/276) to
10230
186 320 Deposition of Witness No.42 K.C. 10231
Pasayta Executive Magistrate to
10264
187 323 Identification Parade 10265
to
10267
188 326 Identification Parade 10268
to
10270
189 329 Identification Parade 10271
to
10274
190 331 Production for identification parade 10275
191 332 Identification Parade 10276
to
10279
192 335 Identification Parade 10280
Page 24 of 988
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NEUTRAL CITATION
R/CC/1/2011 CAV JUDGMENT
undefined
to
10282
193 337 Identification Parade 10283
to
10285
194 339 Identification Parade 10286
to
10288
195 342 Process of Identification Parade 10289
to
10292
196 345 Process of Identification Parade 10293
to
10295
197 347 Process of Identification Parade 10296
to
10299
198 350 Identification Parade 10300
to
10303
199 353 Process of Identification Parade 10304
to
10307
200 354 Identification Parade 10308
to
10311
201 357 Process of Identification Parade 10312
to
10314
202 360 Identification Parade 10315
to
10318
203 363 Process for Identification Parade 10319
to
10322
204 367 Panchnama (Mark 28/55) 10323
to
10324
205 370 PW43 Deposition of Vasudev Parsottam 10325
Page 25 of 988
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NEUTRAL CITATION
R/CC/1/2011 CAV JUDGMENT
undefined
(Complainant) to
10328
206 371 Panchnama (Mark 28/46) 10329
to
10330
207 372 PW44 Deposition of Tulsidas Asumalani 10331
(Complainant) to
10345
208 373 Panchnama (Mark 28/49) 10346
to
10347
209 374 to Slip of Muddamal sign by panch 10348
376 Article to
10349
210 377 Panchnama (Mark 28/227) 10350
to
10351
211 378 Article No.197 R.C.Book 10351
212 379 Panchnama 10351
to
10354
213 380 PW45 Deposition of Rajubhai Shankarbhai 10355
Thakor (Complainant) to
10361
214 381 Panchnama (Mark 28/256) 10362
to
10364
215 382 Slip of Muddamal Sign by Panch 10365
216 385 PW46 Deposition of Jignesh Hasmukbhai 10366
(Complainant) to
10371
217 386 Panchnama (Mark 28/265) 10372
to
10374
218 388 Panchnama (Mark 28/264) 10375
to
10376
219 389 Slip of Muddamal sign by Panch 10377
220 390 Certificate of Medical Officer, Jail 10377
Page 26 of 988
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NEUTRAL CITATION
R/CC/1/2011 CAV JUDGMENT
undefined
Dispensary, Ahmedabad
221 395 PW47 Deposition of Dr.S.B.Nagori 10378
to
10395
222 396 P.M. Note (Mark 28/92) 10396
to
10401
223 397 P.M.Note (Mark 28/93) 10402
to
10407
224 398 P.M.Note (Mark 28/94) 10408
to
10413
225 399 P.M.Note (Mark 28/95) 10414
to
10418
226 400 P.M.Note (Mark 28/96) 10419
to
10423
227 402 PW48 Deposition of Dr.Amit S. Panchal 10424
(Complainant) to
10438
228 403 P.M.Note (Mark 28/71) 10439
to
10443
229 404 P.M.Note (Mark 28/72) 10444
to
10449
230 405 P.M.Note (Mark 28/73) 10450
to
10454
231 406 P.M.Note (Mark 28/74) 10455
to
10459
232 407 P.M.Note (Mark 28/75) 10460
to
10465
233 408 P.M.Note (Mark 28/76) 10466
to
Page 27 of 988
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R/CC/1/2011 CAV JUDGMENT
undefined
10470
234 409 P.M.Note (Mark 28/77) 10471
to
10476
235 410 Xerox copy of receipt of receiving 10477
Dead Body
236 411 Identification Panchnama 10478
to
10480
237 414 PW49 Deposition of Dr.Rakesh 10481
Champaneriya (Complainant) to
10494
238 415 P.M.Note (Mark 28/86) 10495
to
10500
239 416 P.M.Note (Mark 28/87) 10501
to
10506
240 417 P.M.Note (Mark 28/88) 10507
to
10512
241 418 P.M.Note (Mark 28/89) 10513
to
10518
242 419 P.M.Note (Mark 28/90) 10519
to
10524
243 420 P.M.Note (Mark 28/91) 10525
to
10530
244 421 Xerox copy of receipt of receiving 10531
Dead Body
245 422 PW50 Deposition of Dr. Kinjal Doshi 10532
(Complainant) to
10541
246 423 P.M.Note (Mark 28/81) 10542
to
10548
247 424 P.M.Note (Mark 28/82) 10549
Page 28 of 988
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R/CC/1/2011 CAV JUDGMENT
undefined
to
10555
248 425 P.M.Note (Mark 28/83) 10556
to
10561
249 429 PW51 Deposition of Dr.S.M.Suthariya 10562
Complainant) to
10577
250 430 P.M.Note (Mark 28/97) 10578
to
10583)
251 431 P.M.Note (Mark 28/98) 10584
to
10589
252 432 P.M.Note (Mark 28/99) 10590
to
10596
253 433 P.M.Note (Mark 28/100) 10597
to
10603
254 434 P.M.Note (Mark 28/101) 10604
to
10609
255 435 PW52 Deposition of Dr.Rajeshkumar 10610
to
10619
256 436 P.M.Note (Mark 28/102) 10620
to
10625
257 437 P.M.Note (Mark 28/103) 10626
to
10631
258 438 P.M.Note (Mark 28/104) 10632
to
10637
259 439 P.M.Note (Mark 28/105) 10638
to
10643
260 443 PW53 Deposition of Dr.M.S.Patel 10644
Page 29 of 988
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NEUTRAL CITATION
R/CC/1/2011 CAV JUDGMENT
undefined
(Complainant) to
10653
261 444 P.M.Note (Mark 28/109) 10654
to
10659
262 445 P.M.Note (Mark 28/110) 10660
to
10665
263 446 P.M.Note (Mark 28/111) 10666
to
10671
264 447 P.M.Note (Mark 28/112) 10672
to
10677
265 448 PW54 Deposition of Dr.P.G. Rathod 10678
(Complainant) to
10685
266 449 P.M.Note (Mark 28/106) 10686
to
10691
267 450 P.M.Note (Mark 28/107) 10692
to
10698
268 451 P.M.Note (Mark 28/108) 10699
to
10704
269 452 Xerox copy of receipt of receiving 10705
Dead Body
270 456 PW55 Deposition of Yogesh Jain 10706
(Complainant) to
10715
271 457 P.M.Note (Mark 28/113) 10716
to
10721
272 458 P.M.Note (Mark 28/114) 10722
to
10727
273 459 P.M.Note (Mark 28/115) 10728
to
Page 30 of 988
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R/CC/1/2011 CAV JUDGMENT
undefined
10733
274 460 P.M.Note (Mark 28/116) 10734
to
10738
275 461 P.M.Note (Mark 28/117) 10739
to
10743
276 462 PW56 Deposition of Dr. Rohiniben Katty. 10744
(Complainant) to
10750
277 463 P.M.Note (Mark 28/78) 10751
to
10756
278 464 P.M.Note (Mark 28/79) 10757
to
10761
279 465 P.M.Note (Mark 28/80) 10762
to
10767
280 466 PW57 Deposition of Dr.S.B.Shah 10768
(Complainant) to
10776
281 467 P.M.Note (Mark 28/124) 10777
to
10782
282 468 P.M.Note (Mark 28/125) 10783
to
10788
283 469 P.M.Note (Mark 28/126) 10789
to
10794
284 470 P.M.Note (Mark 28/127) 10795
to
10800
285 471 P.M.Note (Mark 28/128) 10801
to
10806
286 472 Appln. Of Spl. PP Mr.Prajapati to 10807
permit him to submit list of
Page 31 of 988
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NEUTRAL CITATION
R/CC/1/2011 CAV JUDGMENT
undefined
Documents
287 473 List of Documents 10808
288 477 PW58 Deposition of Dr.K.V.Sainik 10809
to
10816
289 478 P.M.Note (Mark 28/118) 10817
to
10822
290 479 Letter of D.S.P. Dtd. 1/3/05 10823
291 480 P.M.Note (Mark 28/119) 10824
to
10828
292 481 Letter of Dy.S.P.regarding 10829
identification of name of deceased
Shilaben
293 482 P.M.Note (Mark 28/120) 10830
to
10835
294 483 Letter of Dy.S.P. regarding 10836
identification of name of deceased
Shilaben
295 484 Xerox copy of receipt of receiving 10837
Dead bodies
296 485 PW59 Deposition of Dr.S.K.Yadav 10838
(Complainant) to
10841
297 486 P.M.Note (Mark 28/129) 10842
to
10846
298 487 PW60 Deposition of Dr.B.S.Shah 10847
(Complainant) to
10857
299 488 M.L.C. Certificate (Mark 28/178) 10858
(Jayantibhai)
300 489 O.P.D.Papers of Jayantibhai 10859
to
10860
301 490 M.L.C. Certificate (Mark 28/177) 10861
(Heerabhai)
Page 32 of 988
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R/CC/1/2011 CAV JUDGMENT
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302 491 O.P.D. Papers of Hirabhai 10862
303 492 M.L.C. certificate (Mark 28/176) 10863
(Dwarkadas)
304 493 O.P.D. Papers of Dwarkadas 10864
305 494 M.L.C.certificate (Mark 28/179) 10865
(Babubhai)
306 495 O.P.D. Papers of Babubhai 10866
307 496 M.L.C. Certificate (Mark 28/180) 10867
(Rambhai)
308 497 O.P.D.papers of Rambhai 10868
309 498 M.L.C.certificate (Mark 28/188) 10869
(Dineshbhai)
310 499 O.P.D. Papers of Dineshbhai 10870
311 500 M.L.C. Certificate (Mark 28/181) 10871
(Gyanprasad)
312 501 O.P.D. Papers of Gyanprasad 10872
313 502 M.L.C.certificate (Mark 28/182) 10873
(Rajendrasinh)
314 503 O.P.D. Papers of Rajendrasinh 10874
315 504 M.L.C certificate (Mark 28/183) 10875
(Ramfersinh)
316 505 O.P.D. Papers of Ramfersinh 10876
317 506 M.L.C. Certificate (Mark 28/184) 10877
(Nilkanthbhai)
318 507 O.P.D. Papers of Nilkantbhai 10878
319 508 M.L.C. Certificate (Mark 28/187) 10879
(Mandakiniben)
320 509 O.P.D. Papers of Mandakiniben 10880
321 513 PW61 Deposition of Dr.M.D.Patel 10881
(Complainant) to
10883
322 514 M.L.C. Certificate (Mark 28/175) 10884
(Purjo) 543 behind
323 515 Appln. Of Spl. PP for issuance 10885
324 520 PW62 Deposition of Dr.Subhash Sinha 10886
(Complainant) to
Page 33 of 988
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R/CC/1/2011 CAV JUDGMENT
undefined
10894
325 521 P.M.Note (Mark 28/121) 10895
to
10900
326 522 P.M.Note (Mark 28/123) 10901
to
10906
327 523 P.M.Note (Mark 28/122) 10907
to
10912
328 524 P.M.Note (Mark 28/84) 10913
to
10917
329 525 P.M.Note (Mark 28/85) 10918
to
10922
330 526 PW63 Deposition of Dr.R.M.Agrawal 10923
(Complainant) to
10926
331 527 Mark 28/171 (Case paper) 10927
332 528 Mark 28/172 (Case paper) 10928
333 532 PW64 Deposition of Mohmmad A.Sheikh 10929
Umarji (Complainant) to
10931
334 534 PW65 Deposition of Vinodkumar 10932
Deepchand Shah (Complainant) to
10935
335 535 M.L.C. Certificate (Mark 28/130) 10936
336 537 PW66 Deposition of Dr.Hasmukbhai 10937
B.Patel (Complainant) to
10941
337 538 Mark 28/131 (Certificate) 10942
338 541 Transfer from (Purjo) 538 behind 10943
339 542 PW67 Deposition of Dr.Sanjay K.Raval 10944
(Complainant) to
10946
340 543 M.L.C. Certificate (Mark 28/174) 10947
341 544 PW68 Deposition of Dr.Smt. P.R.Vaghela 10948
Page 34 of 988
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R/CC/1/2011 CAV JUDGMENT
undefined
(Complainant) to
10951
342 545 M.L.C.certificate (Mark 28/185) 10952
343 546 O.P.D. Papers of Savitaben 10953
344 547 M.L.C. Certificate (Mark 28/186) 10954
345 548 O.P.D. Papers of Jitendra 10955
346 551 PW69 Deposition of Dr.Beenaben K.Parikh 10956
(complainant) to
10960
347 552 M.L.C. Certificate (Mark 28/132) 10961
348 553 M.L.C. Certificate (Mark 28/133) 10962
349 554 M.L.C. Certificate (Mark 28/134) 10963
350 555 M.L.C. Certificate (Mark 28/135) 10964
351 556 PW70 Deposition of Dr.C.K.Navis 10965
(Complainant) to
10981
352 557 M.L.C. Certificate (Mark 28/136) 10982
Punamkumari
353 558 M.L.C. Certificate (Mark 28/137) 10983
354 559 M.L.C. Certificate (Mark 28/138) 10984
355 560 M.L.C. Certificate (Mark 28/139) 10985
356 561 M.L.C. Certificate (Mark 28/140) 10986
357 562 M.L.C., certificate (Mark 28/141) 10987
358 563 M.L.C., certificate (Mark 28/142) 10988
359 564 M.L.C., certificate (Mark 28/143) 10989
360 565 M.L.C., certificate (Mark 28/144) 10990
361 566 M.L.C., certificate (Mark 28/145) 10991
362 567 M.L.C., certificate (Mark 28/146) 10992
363 568 M.L.C., certificate (Mark 28/147) 10993
364 569 M.L.C., certificate (Mark 28/148) 10994
365 570 M.L.C., certificate (Mark 28/149) 10995
366 571 M.L.C., certificate (Mark 28/150) 10996
367 572 M.L.C. Certificate (Mark 28/151) 10997
368 573 M.L.C., Certificate (Mark 28/152) 10998
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NEUTRAL CITATION
R/CC/1/2011 CAV JUDGMENT
undefined
369 574 M.L.C., certificate (Mark 28/153) 10999
370 575 M.L.C., certificate (Mark 28/154) 11000
371 576 M.L.C., certificate (Mark 28/155) 11001
372 577 M.L.C., certificate (Mark 28/156) 11002
373 578 M.L.C., certificate (Mark 28/157) 11003
374 579 M.L.C., certificate (Mark 28/158) 11004
375 580 M.L.C., certificate (Mark 28/159) 11005
376 581 M.L.C., certificate (Mark 28/160) 11006
377 582 M.L.C., certificate (Mark 28/161) 11007
378 583 M.L.C., certificate (Mark 28/162) 11008
379 584 M.L.C., certificate (Mark 28/163) 11009
380 585 M.L.C., certificate (Mark 28/164) 11010
381 586 M.L.C., certificate (Mark 28/165) 11011
382 587 M.L.C., certificate (Mark 28/166) 11012
383 588 M.L.C. Certificate (Mark 28/167) 11013
384 589 M.L.C., certificate (Mark 28/168) 11014
385 590 PW71 Deposition of Dr. Anilkumar K.Patel 11015
(Complainant) to
11017
386 591 M.L.C., certificate (Mark 28/169) 11018
387 595 PW72 Deposition of Dr. Pravinbhai K.Patel 11019
to
11021
388 596 M.L.C. Certificate (Mark 28/173) 11022
389 600 PW73 Deposition of Dr. Pravin 11023
Devrajkumar to
11024
390 601 M.L.C., certificate (Mark 28/170) 11025
391 602 M.L.C., certificate (Mark 28/170A) 11025
392 607 PW74 Deposition of Kalpeshkumar A. 11026
to
11041
393 610 PW75 Deposition of Nilkanth Tulsidas 11042
to
11052
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394 613 PW76 Deposition of Hariram Shriramdev 11053
to
11058
395 614 PW77 Deposition of Rajendrasinh 11059
Ramfersinh (Complainant) to
11065
396 615 PW78 Deposition of Raju Krupashankar 11066
Pandey (complainant) to
11069
397 619 PW79 Deposition of Amarkumar J.Tiwari 11070
to
11077
398 621 PW80 Deposition of Gyanprasad 11078
Lallanprasad Chorasiya to
(Complainant) 11083
399 625 PW81 Deposition of Pujaben B.Kuswaha 11084
to
11091
400 627 PW82 Deposition of Verpal C.Pal 11092
to
11100
401 630 PW83 Deposition of Veenaben M.Patel 11101
to
11107
402 634 PW84 Deposition of Hetalben Babubhai 11108
Patel (Complainant) to
11117
403 637 PW85 Deposition of Rakeshbhai Kantibhai 11118
(Complainant) to
11129
404 638 PW86 Deposition of Hariprasad Maniram 11130
Joshi (Complainant) to
11135
405 641 PW87 Deposition of Maheshbhai 11136
Jayantibhai Patel (Complainant) to
11142
406 642 PW88 Deposition of Shantibhai 11143
Shankarbhai Patel (Complainant) to
11146
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407 648 PW89 Deposition of Premaben A. Mali 11147
to
11150
408 650 PW90 Deposition of Rubidevi Shriram 11151
to
11155
409 651 PW91 Deposition of Kesubhai D.Patel 11156
to
11160
410 652 PW92 Deposition of Dineshbhai 11160/1
Narsinhbhai Narsinhbhai to
11160/4
411 657 PW93 Deposition of Shardaben 11161
to
11166
412 662` PW94 Deposition of Bachubhai Dhanjibhai 11167
Ladwani (Complainant) to
11175
413 663 PW95 Deposition of Vandanaben 11176
R.Ramfersinh (Complainant) to
11180
414 663/2 Xerox copy of Reservation Chart 11181
to
11182
415 666 PW96 Deposition of Satishkumar 11183
Ravindra Mishra to
11191
416 667 Xerox copy of Reservation chart 11192
to
11194
417 668 PW97 Deposition of Hariprasad Manilal 11195
(complainant) to
11202
418 669 Xerox copy of Railway Ticket 11203
419 670 PW98 Deposition of Maheshbhai 11204
Cheljibhai (Complainant) to
11208
420 674 PW99 Deposition of Prakash Hiralal 11209
(complainant) to
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11214
421 675 PW100 Deposition of Sureshbhai N. 11215
to
11218
422 676 PW101 Deposition of Jagdishbhai Jashbhai 11219
Soni (Complainant) to
11222
423 677 Mark 28/213 (Bill) 11223
424 680 PW102 Deposition of Rampal Jigilal Gupta 11224
(Complainant) to
11230
425 681 PW103 Deposition of Somnath Sitaram 11231
Kahar (complainant) to
11236
426 686 PW104 Deposition of Jethanand Bhulchand 11237
(Complainant) to
11242
427 687 PW105 Deposition of Tusharbhai S. 11243
(Complainant) to
11247
428 688 PW106 Deposition of Hiren Subhash 11248
Chandra (Complainant) to
11251
429 689 Mark 28/218 (Certificate) 11252
430 690 PW107 Deposition of Parsottam Gordhan 11253
(Complainant) to
11260
431 694 PW108 Deposition of Naranbhai Gandabhai 11261
(Complainant) to
11263
432 695 PW109 Deposition of Mukeshbhai Raman 11264
Makwana (Complainant) to
11274
433 696 PW110 Deposition of Bhupatbhai Maniram 11275
Dave (Complainant) to
11286
434 712 PW111 Deposition of Fatehsinh Dabhsinh 11287
Solanki (Complainant) to
11292
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435 713 PW112 Deposition of Arvindbhai Harjibhai 11293
Hirani (complainant) to
11296
436 715 PW113 Deposition of Radheshyam 11297
Ramchandra (Complainant) to
11302
437 716 Reservation Ticket of witness 11303
438 719 PW114 Deposition of Subhashchandra 11304
Ramchandra Mishra (Complainant) to
11311
439 720 PW115 Deposition of Raj Rameshchandra 11312
Mehta (Complainant) to
11315
440 721 PW116 Deposition of Uday Chandrakant 11316
Katiya (Complainant) to
11317
441 722 Appln. For hearing of Ex.99 11318
to
11319
442 723 Appln. To received certified copies 11320
from prosecution to
11321
443 726 PW117 Deposition of Gandaji Ramsiji 11322
Thakor (Complainant) to
11326
444 727 PW118 Deposition of Ashwinbhai 11327
Govindbhai Patel (Complainant) to
11335
445 729 PW119 Deposition of Punamkumari 11336
Sunilkumar Tiwari (Complainant) to
11340
446 731 PW120 Deposition of Nitinbhai Chaturbhai 11341
Patel (Complainant) to
11347
447 732 PW121 Deposition of Amrutbhai Joitabhai 11348
Patel (Complainant) to
11351
448 733 PW122 Deposition of Babubhai Somdas 11352
Patel (Complainant) to
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11357
449 734 PW123 Deposition of Rambhai Bhudardas 11358
Patel (Complainant) to
11361
450 738 PW124 Deposition of Dilipkumar J Patel 11362
(complainant) to
11379
451 739 PW125 Deposition of Jitendragiri 11380
Mangalgiri Goswami to
(Complainant) 11383
452 742 PW126 Deposition of Harimohan 11384
Fulsinhmina (Complainant) to
11390
453 744 PW127 Deposition of Rajendraprasad 11391
Migrilal Mina (complainant) to
11398
454 748 PW128 Deposition of Akhilkumar Guljarilal 11399
Sharma (Complainant) to
11406
455 749 List of Documents by Spl.PP 11407
456 755 PW129 Deposition of Kanubhai 11408
Chhaganbhai Varia (Complainant) to
11423
457 756 Pursis of Ld. Adv of Accused 11424
458 757 PW130 Deposition of Vijaykumar 11425
Ramchandra Sharma to
(Complainant) 11440
459 759 Appln. By adv. of accused regarding 11441
occurrence book register
460 760 PW131 Deposition of Mukesh Raghuvir 11442
Pachori (Complainant) to
11450
461 761 Xerox copy of Drivers Note Book 11451
(Mark 28/2, Dtd. 27.02.2002
462 764 PW132 Deposition of Suleman Abdul Majid 11452
Shaikh to
11456
463 765 Mark 28/44 (Certificate) 11457
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464 766 PW133 Deposition of Rupsinh Chagganbhai 11458
(Complainant) to
11461
465 767 Appln. Of accused regarding III 11462
treatment by police Yadi to
11463
466 768 Yadi containing list of photographs 11464
467 773 PW134 Deposition of Dineshbhai Jivabhai 11465
Prajapati (Complainant) to
11468
468 774 Panchnama 11469
to
11474
469 777 PW135 Deposition of Satyanarain 11475
Panhuram Verma (Complainant) to
11483
470 778 Mark 28/5 Copy of Guard Book 11484
to
11487
471 780 PW136 Deposition of Sajjanlal Mohanlal 11488
Ranivala (Complainant) to
11494
472 782 PW137 Deposition of Kanitbhai Rupsinh 11495
Damor (Complainant) to
11506
473 783 PW138 Deposition of Gulabsinh 11507
Laxmansinh Tadvi (Complainant) to
11513
474 785 PW139 Deposition of Jasvantsinh Kalubhai 11514
Baria (Complainant) to
11531
475 786 PW140 Deposition of Pujabhai Bavjibhai 11532
Patwadia (Complainant) to
11553
476 787 PW141 Deposition of Jasvansinh Gulabsinh 11554
Baria (complainant) to
11561
477 789 True copy of witness Deposition of 11562
S.C.No.133/02 to
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11563
478 790 PW142 Deposition of Mangalbhai 11564
Ramjibhai Baria (Complainant) to
11568
479 791 True copy of witness deposition of 11569
S.C.No.133/02 to
11570
480 792 PW143 Deposition of Vinubhai Kasnabhai 11571
(Complainant) to
11580
481 793 PW144 Deposition of Mansinh Nurjibhai 11581
Vasava (Complainant) to
11597
482 794 PW145 Deposition of Jitendrakumar 11598
Chimanlal Patel (Complainant) to
11603
483 795 Negatives of Photos (In closed 11604
Envelop)
484 796 Photos (in closed Envelope)
485 799 PW146 Deposition of Laxmansinh Nansinh 11605
Chauhan (Complainant) to
11616
486 801 PW147 Deposition of Raijibhai Gulabsinh 11617
Parmar (Complainant) to
11624
437 802 PW148 Deposition of Hemendra 11625
Ramanlaldas (Complainant) to
11643
438 810 PW149 Deposition of Janakbhai Kantibhai 11644
(Complainant) to
11656
439 812 PW150 Deposition of Jayantibhai 11657
Umedbhai (Complainant) to
11664
440 814 PW151 Deposition of Dipakbhai Nagindas 11665
Soni (Complainant) to
11695
441 815 Mark 28/274 (Bill) 11696
442 816 List6 of Documents by Spl. PP 11697
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443 817 S.C.No.8/93 (TADA) True copy of 11698
judgement to
11710
444 818 S.C.No.18/92 True copy of 11711
Judgment to
11720
445 819 PW152 Deposition of Mahendrasinh 11721
Bhikusinh (Complainant) to
11732
446 820 S.C.No.173/02 True copy of 11733
Deposition to
11736
447 822 PW153 Deposition of Rajubhai Laljibhai 11737
Rathod (Complainant) to
11742
448 823 PW154 Deposition of Chandrashankar 11743
Narhuram Soniya (Complainant) to
11756
449 825 PW155 Deposition of Manoj Hiralal Advani 11757
and close cover to
11776
450 826 PW156 Deposition of Pradipsinh Bholasinh 11777
(Complainant) to
11791
451 827 Mark 816/4 Occurrence Book 11792
to
11800
452 828 PW157 Deposition of Savitaben 11801
Tribhuvandas (Complainant) to
11805
453 832 PW158 Deposition of Hirabhai Dolabhai 11806
Chauhan (Complainant) to
11812
454 834 PW159 Deposition of Rajeshbhai 11813
to
11836
455 836 Police Station I 393/1990 Certified 11837
copies of Chargesheet of to
11840
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456 837 Appln. By Adv. Hasan asking for 11841
production of Station Dairy
457 839 PW160 Deposition of Hirabhai Umeshdas 11842
(Complainant) to
11848
458 841 PW161 Deposition of Indrasinhi 11849
Prabhatsinh Solanki (Complainant) to
11866
459 845 PW162 Deposition of Gangaram Jawanram 11867
Rathod (Complainant) to
11874
460 846 Note of Maintainance 11875
to
11884
461 847 Report Mark 28/209 11885
to
11886
462 852 PW163 Deposition of Chatrasinh. 11887
Gambhirbhai (Complainant) to
11896
463 854 PW164 Deposition of Mohan Jagdishsinh 11897
(Complainant) to
11902
464 855 PW165 Deposition of Sureshgiri Mohangiri 11903
G.(complainant) to
11917
465 859 PW166 Deposition of Dalabhai Abhlabhai 11918
Baria (Complainant) to
11964
466 862 PW167 Deposition of Harsukhlal Tejandas 11934
Adwani (complainant) to
11954
467 867 PW168 Deposition of Mandakiniben 11955
Nilkanth Bhatia (Complainant) to
11967
468 868 PW169 Deposition of Babubhai Bhaljibhai 11968
Patel (complainant) to
11976
469 870 True copy of Deposition S.C. 11977
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No.133/02 to
11978
470 871 True copy of Judgement 11979
S.C.No.133/02 to
11998
471 873 PW170 Deposition of Pravinkumar 11999
Amthabhai (complainant) to
12016
472 876 PW171 Deposition of Ambishkumar Riaram 12017
Sanke (complainant) to
12025
473 878 PW172 Deposition of Nitinkumar 12026
Kukulkumar to
12049
474 885 PW173 Deposition of Karansinh Lalsinh 12050
Yadav (Complainant) to
12063
475 888 PW174 Deposition of Dilipbhai 12064
to
12066
476 891 PW175 Deposition of Gaytriben Harshabhai 12067
Panchal (Complainant) to
12080
477 895 PW176 Deposition of Dr.Jayeshchandra 12081
Mangaldas (complainant) to
12084
478 897 PW177 Deposition of Mansinh Fulji 12085
(Complainant) to
12091
479 902 PW178 Deposition of Hasinabibi Mujjafar 12092
Usman Hayat (Complainant) to
12094
480 903 PW179 Deposition of Rajiyaben Mohmmad 12095
Hanif Bhatuk (Complainant) to
12097
481 906 PW180 Deposition of Dr.Zuber Mohmmad 12098
Yusuf (Complainant) to
12101
482 907 PW181 Deposition of Bhupatdan Visnudan 12102
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Gadhvi (Complainant) to
12103
483 909 PW182 Deposition of Taherabibi Idris 12104
(Complainant) to
12106
489 912 List of Documents by Spl. PP 12107
490 915 PW183 Deposition of Sofiyabibi Suleiman 12108
Dhantya (Complainant) to
12110
491 916 PW184 Deposition of Jaitunbibi Siraj 12111
Ahmed (Complainant) to
12113
492 917 PW185 Deposition of Janak Upendra Popat 12114
(Complainant) to
12121
493 923 PW186 Deposition of Mustak Ahmed 12122
Hussain (Complainant) to
12127
494 929 Production of Documents in chief 12128
495 931 PW187 Deposition of Kishorsinh Jawnsinh 12129
to
12135
496 932 PW188 Deposition of Mustaq Ahmed 12136
Nurmiya (Complainant) to
12137
497 941 PW189 Deposition of Firoj Ibrahim Paushti 12138
(Complainant) to
12143
498 942 Panchnama Mark (28/236) 12144
to
12150
499 943 to Slip of sign by Panch 12151
944
500 952 PW190 Deposition of Vinodbhai 12152
Ganpatbhai Chauhan to
(Complainant) 12157
501 953 PW191 Deposition of Mustak Ahmed 12158
Nabimiya (Complainant) to
12159
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502 960 PW192 Deposition of Riyazuddin 12160
to
12168
503 972 PW193 Deposition of Suleman Mohammad 12169
Bhatuk (Complainant) to
12174
504 974 PW194 Deposition of Rehanibibi Sabbit 12175
(Complainant) to
12177
505 975 PW195 Deposition of Yusuf Hasanbhai 12178
(Complainant) to
12179
506 978 PW196 Deposition of Irfan Yakub Mitha 12180
(Complainant) to
12184
507 983 PW197 Deposition of Chandrashankar 12185
Parshottam (Complainant) to
12186
508 984 Notification regarding no use 12187
weapon to
12188
509 985 PW198 Deposition of Gulabsinh Andarsinh 12189
(Complainant) to
12193
510 986 PW199 Deposition of Prabhatbhai Punabhai 12194
(Complainant) to
12206
511 988 Document list of Spl.pp 12207
512 992 Mark 28/190 Treatment Certi. Of 12208
Radheshyam
513 997 Panchnama 12209
514 998 Mark 28/307 letter of S.P. Western 12210
Railway
515 999 Mark 28/221 RDSO Lakhnau 12211
Report
516 1000 Mark 28/309 letter by DME to DSP 12212
Railway Vadodara
517 1001 Mark 28/239 Permission to file 12213
chargesheet U/s IPC 153A by Home to
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Department 12214
518 1002 Mark 28/253 permission to file 12215
chargesheet U/s IPC 153A by to
Home Department 12216
519 1003 Mark 28/26 Permission to file 12217
chargesheet u/s IPC 153A by Home to
Department 12219
520 1004 Mark 28/267 letter of Home 12220
Department to
12221
521 1005 Mark 28/277 permission to File 12222
chargesheet to
12225
522 1006 Mark 28/334 permission to file 12226
chargesheet to
12227
523 1007 Mark 28/334 permission to file 12228
chargesheet to
12229
524 1008 Mark 28/338 report of senior 12230
section to
12233
525 1013 PW200 Deposition of Karansinh 12234
Ranjeetsinh Zala (Complainant) to
12238
526 1014 Panchnama Mark (28/238) 12239
to
12240
527 1015 PW201 Deposition of Deepakbhai 12241
Chinubhai Trivedi (Complainant) to
12243
526 1016 Panchnama Mark (998/1) 12244
to
12245
527 1017 Panchnama Mark (988/2) for 12246
passport to
12247
528 1024 Deposition of witness no.202 12248
Govindsinh Ratansinh Panda to
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(Complainant) 12255
529 1027 Slip of sign by Panch Article No.81 12256
1028 82 to
1029 12257
530 1030 Indemnification Parade 12258
to
12260
531 1031 Indemnification Parade 12261
to
12263
532 1032 Indemnification Parade 12264
to
12265
533 1033 Indemnification Parade 12266
to
12269
534 1034 Indemnification Parade 12270
to
12272
535 1035 Indemnification Parade 12273
to
12276
536 1036 Panchnama Mark (28/47) 12277
to
12280
537 1037 Panchnama Mark (28/51) 12281
to
12282
538 1038 Signature Slip 12283
539 1040 PW203 Deposition of Dilipsinh Ujamsinh 12284
Dasadiya (complainant) to
12300
540 1046 PW204 Deposition of Nainsinh Sevasinh 12301
Rathod (Complainant) to
12304
541 1047 PW205 Deposition of Shadulsinh 12305
Bhalchand Gajjar (Complainant) to
12307
542 1060 PW206 Deposition of Bhikhabhai H.Baria 12308
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to
12322
543 1063 PW207 Deposition of Ambalal Ranchodlal 12323
Patel (complainant) to
12334
544 1067 PW208 Deposition of Murlidhar Rochiram 12335
Mulchandani (Complainant) to
12374
545 1073 PW209 Deposition of Pravinsinh Modbhai 12375
Gadhavi (Complainant) to
12378
546 1074 PW210 Deposition of Umarkha Kalaji 12379
Malek (Complainant) to
12381
547 1075 PW211 Deposition of Bhikhabhai 12382
Ranchhodbhai Machhi to
(Complainant) 12383
548 1092 PW212 Deposition of Naranbhai Kabhai 12384
Muchhar (Complainant) to
12394
549 1097 Indemnification Parade 12395
to
12398
550 1098 Indemnification Parade 12399
to
12402
551 1099 PW213 Deposition of Rupsinh Amarsinh 12403
(Complainant) to
12406
552 1106 PW214 Deposition of Laxmandas 12407
Gyanchand Rajai (Complainant) to
12410
553 1107 Panchnama 12411
to
12413
554 1108 PW215 Deposition of Rameshbhai Raisingh 12414
(Complainant) to
12419
555 1109 Panchnama of accused Mohmmad 12420
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Hanif (Mark 28/230) to
12421
556 1110 Panchnama of accused Mujfar 12422
Usman (Mark 28/231) to
12423
557 1111 Panchnama of witness (Mark 12424
28/235) to
12425
558 1112 List of Documents by Spl.PP 12426
to
12427
559 1115 Deposition of witness No.216 12428
Mohmmad to
12438
560 1118 PW217 Deposition of Ambalal Chhotalal 12439
Patel (Complainant) to
12441
561 1126 PW218 Deposition of Ramsinh Kodarbhai 12442
(Complainant) to
12450
562 1127 PW219 Deposition of DYSP S.M.Baranda 12451
to
12464
563 1130 PW220 Ashokbhai Mohanbhai Muniya 12465
(Complainant) to
12468
564 1131 PW221 Deposition of Arvindbhai Raisingh 12469
(Complainant) to
12474
565 1132 Panchnama Mark (28/57)4 12475
to
12476
566 1136 PW222 Deposition of Kantibhai J.Variagi 12477
(Complainant) to
12482
567 1137 PW223 Deposition of Jaisinghbhai K.Kher 12483
(Complainant) to
12487
568 1139 PW224 Deposition of Ranjitbhai Jodhabhai 12488
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(Complainant) to
12518
569 1150 PW225 Deposition of Mukesh N Joshi 12519
(Complainant) to
12525
570 1151 Mark 28/204 dated 2.07.2002 12526
F.S.L. Report
571 1152 Mark 28/208 dated 20.7.2002 12527
F.S.L. report to
12528
572 1153 Mark 28/190 Dated 20.5.2002 12529
forwarding (F.S.L.)
573 1154 Mark 28/197 dated 17.5.2002 12530
report (F.S.L.) to
12534
574 1158 PW226 Deposition of Satishchandra 12535
Ganpatram Khandelwal to
(Complainant) 12543
575 1159 Mark 28/207 report 12544
to
12545
576 1161 PW227 Deposition of Dipakkumar 12546
Bhagwandas Talati (Complainant) to
12553
577 1163 Outward Entry of Muddamal 12554
to
12555
578 1165 Mark 28/193 Forwarding letter 12556
579 1166 Analysis report dated 20.3.2002 12557
to
12558
580 1167 Letter to F.S.L., Ahmedabad 12559
581 1168 Outward Entry of Muddamal 12460
to
12464
582 1169 Outward entry of muddamal 12466
to
12467
583 1170 Letter of F.S.L. officer to D.S.P. 12568
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584 1171 Letter of F.S.L. officer to D.S.P. 12563
585 1172 Mark 28/192 Test Report 12569
586 1173 Outward Entry of D.S.P. letter 12571
dated 11.4.2002
587 1174 Outward entry of Muddamal 12578
to
12583
588 1175 Letter of F.S.L. Officer to D.S.P. 12584
589 1176 Mark 28/194 dated 30.4.2002 12585
590 1177 Analysis report 12586
to
12590
591 1178 Outward entry of muddamal 12591
to
12599
592 1179 Letter of F.S.L.Officer to D.S.P. 12600
593 1180 Mark 28/196 Forwarding letter 12601
594 1181 Analysis report dated 17.5.2002 12602
to
12605
595 1182 Outwards Entry dated 9.5.2002 12606
596 1183 Letter of F.S.L. officer to D.S.P. 12607
597 1184 Forwarding letter Mark 28/198 12608
598 1185 Analysis Report 12609
to
12610
599 1186 Mark 28/203 Letter 12611
600 1189 PW228 Deposition of Rajendranath 12612
Raghunath Jadhav (complainant) to
12623
601 1190 Mark 28/1 complaint application 12624
to
12625
602 1195 PW229 Deposition of Jitendrakumar 12626
Rambadhar Tiwari (Complainant) to
12633
603 1196 PW230 Deposition of Mohabbatsinh 12634
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Juvansinh Zala (Complainant) to
12680
604 1202 Original Panchnama mark 1201/1 12681
to
12683
605 1206 PW231 Deposition of Prabhatsinh 12684
Gulabsinh (Complainant) to
12708
606 1214 PW232 Deposition of Iiyas Hussain Mulla 12709
(Complainant) to
12723
607 1219 PW233 Deposition of Dilipkumar Gaimal 12724
Melani (Complainant) to
12742
608 1220 PW234 Deposition of Anwar Abdula Sattar 12743
Kalandar (Complainant) to
12754
609 1221 Deposition of Anwar Abdul Sattar 12755
to
12758
610 1222 Deposition of Anwar Abdul Sattar 12759
to
12766
611 1225 Deposition of Mehbuba Usmanbeg 12767
Mirza to
12771
612 1226 P.M.Note 12772
to
12773
613 1227 P.M.Note 12774
to
12775
614 1228 P.M.Note 12776
to
12777
615 1229 P.M.Note 12778
to
12779
616 1230 P.M.Note 12780
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to
12781
617 1231 PW236 Deposition of Ajaybhai Bariya 12782
to
12838
618 1232 Statement U/S. 164 12839
to
12840
619 1233 Statement U/S. 164 12841
to
12844
620 1252 PW237 Deposition of Sikandar Mohmad 12845
Siddik Shaikh to
12875
621 1262 PW238 Deposition of Bhaskar C.Q.T. 12876
Statement of accused Abdul Razak to
12881
622 1263 PW239 Deposition of Amita Dipeshkumar 12882
Sukal (Complainant) to
12898
623 1266 Letter of Deputy Police Supdt. 12899
Address to P.S.I.M.T.Patil to
12900
624 1267 Letter to Deputy Police Supdt. By 12901
scientific to
12902
625 1270 Statement u/s164 12903
to
12904
626 1271 F.S.I certificate 12905
to
12906
627 1272 Acceptance for polygraphic test 12907
628 1273 Statement U/S. 164 12908
to
12909
629 1274 F.S.L. certificate 12910
to
12911
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630 1275 Acceptance for polygraphic test 12912
631 1276 Statement U/S.164 12913
to
12915
632 1277 F.S.L. Certificate 12916
to
12918
633 1278 Acceptance for polygraphic test 12919
634 1279 Statement U/S. 164 12920
635 1280 F.S.L. certificate 12921
to
12922
636 1281 Acceptance for polygraphic test 12923
637 1282 Statement U/s. 164 12924
638 1283 Questionnaire of accused 12925
639 1285 Analysis of polygraphic test 12926
640 1286 Questionnaire of accused 12927
641 1288 Analysis of polygraphic test 12928
642 1289 Questionnaire of accused 12929
643 1291 Analysis of polygraphic test 12930
644 1292 Questionnaire of accused 12931
645 1294 Analysis of polygraphic test 12932
646 1295 Questionnaire of accused 12933
647 1297 Analysis of polygraphic test 12934
648 1298 Questionnaire of accused 12935
648 1300 Analysis of polygraphic test 12936
649 1301 Questionnaire of accused 12937
650 1303 Analysis of polygraphic test 12938
651 1304 Questionnaire of accused 12939
652 1306 Analysis of polygraphic test 12940
653 1307 Questionnaire of accused 12941
654 1309 Analysis of polygraphic test 12942
655 1310 Questionnaire of accused 12943
666 1312 Analysis of polygraphic test 12944
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667 1313 Letter addressed to P.I.from Central 12945
Jail Supdt. to
12946
668 1316 Letter addressed to P.I. From 12947
Central Jail Supdt. to
12948
669 1320 Letter addressed to P.I.from Central 12949
Jail Supdt. to
12950
670 1322 Letter regarding report of 12951
polygraphic to
12956
671 1323 Questionnaire of accused 12957
to
12960
672 1324 Consent for polygraphic test 12961
673 1325 Statement u/s. 164 12962
to
12964
674 1326 Questionnaire of accused 12965
to
12966
675 1328 Analysis of polygraphic test 12967
676 1329 Questionnaire of accused 12968
677 1331 Analysis of Polygraphic test 12969
678 1332 Questionnaire of accused 12970
679 1334 Analysis of Polygraphic test 12971
680 1335 Analysis of Polygraphic test 12972
681 1336 Questionnaire of accused 12973
to
12974
682 1338 Analysis of Polygraphic test 12975
683 1339 Analysis of Polygraphic test 12976
684 1344 Mark (28/212) Forwarding letter 12977
685 1345 Analysis report Mark (@8/212) 12978
to
12981
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686 1347 PW240 Deposition of Mohider Dahiya 12982
(Complainant) to
13001
687 1349 Mark (28/195) meeting report 13002
to
13003
688 1350 Aheval; 13004
to
13006
689 1352 Mark (28/206) FSL report 13007
690 1353 Letter of Deputy Police Supdt. 13008
to
13009
691 1354 Mark (28/217) certificate of Coach 13010
to
13014
692 1355 Letter Dtd. 24/10/08 13015
to
13016
693 1356 Mark (28/219) Forwarding letter 13017
694 1357 Answer TP queries related with 13018
Godhra Rly. Po. Station to
13028
695 1366 PW241 Deposition of Kantipuri C.Bava 13029
(Complainant) to
13089
696 1368 Application of DY.SP. 13090
to
13092
697 1369 Slip of signature by Panch 13093
698 1370 to Slip of signature by Panch 13094
1371
699 1372 Panchnama Mark 25/63 13095
to
13097
700 1389 PW242 Deposition of Raju B. Bhargav 13098
(Complainant) to
13110
701 1393 PW243 Deposition of Suryakant B.Patel 13111
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(Complainant) to
13122
702 1399 Mark(28/199) Permission letter to 13123
put up Chargesheet to
13128
703 1406 PW244 Deposition of Noel Volar Parmar 13129
(Complainant) to
13259
704 1407 Panchnama Mark (28/222) 13260
to
13261
705 1409 Mark (28/215) FSL Report 13262
706 1410 Mark (28/215) Opinion report of 13263
handwriting
707 1457 PW245 Deposition of J.R.Mothliya 13264
(Complainant) to
13291
708 1461 Appln. For production of Joint 13292
copies of witness in Chief before to
S.I.T 13306
709 1467 PW246 Deposition of R.K.Parmar 13307
(complainant) to
13333
710 1468 Letter addressed to Central Jail 13334
Supdt.
711 1469 Confessional statement of Jabir 13335
Binyamin Behra to
13341
712 1470 Questionnaire of WitnessRanjit 13342
Jothabhai Patel to
13344
713 1471 Questionnaire of witness 13345
Prabhatsingh G.Patel to
13348
714 1478 List of Document 13349
715 1480 Mark (28/202) Handwriting report 13350
716 1481 Mark (28/210) FSL & DNA Test 13351
Report to
13355
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717 1482 Mark (28/211) covering letter of 13356
DNA Test to
13360
718 1483 Certificate of Dead bodies Mark 13361
(@8/216) FSL report dated to
27/5/2003 13362
719 1487 PW247 Deposition of Kishorsinh 13363
Bahadursinh Jodgu (Complainant) to
13768
720 1509 Arguments 13369
to
13741
721 1529 Appln. By Spl. PP for issuance of 13742
witness summons
722 1531 Reply & Objection appln. By
accused adv.
723 1555 PW248 Deposition of Anupsinh J Gehlot
(Complainant)
724 1556 Confidential letter of I.G.P., 13755
Vadodara
725 1557 Letter of S.P., W.Rly Vadodara 13775
726 1558 Questionnaire of accused of Irafan 13783
Mahommad Patadiya Dy. S.P.
727 1559 Statement of accused Irafan 13788
Mahommad Patadiya by S.P.,
Vadodara
728 1560 Confidential letter No.PA/GDA/100 13792
of 2006
729 1561 Letter addressed to C.J.M Godhra 13793
by S.P., Vadodara
730 1562 Questionnaire of accused Mehabub 13794
Mahammad Yusuf Hasan
731 1563 Questionnaire of Accused Mehabub 13797
Mahamaad Yusuf Hasan
732 1566 Questionnaire of accused Soukat 13800
Yusuf Ismail @ Biliyo
733 1567 Questionnaire of accused Soukat 13803
Yusuf Ismail @ Bilino
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734 1576 PW249 Deposition of S.G.Bhati 13807
(Complainant)
735 1577 Questionnaire of accused Soukat @ 13810
Bhano
736 1578 PW250 Deposition of J.K.Ghogahra, Sr.C.J. 13816
(Complainant)
737 1586 PW251 Deposition of J.K.Bhatt, DIG, 13825
Vadodara
738 1590 PW252 Deposition of Smt.M.D.Bhatt Small 13828
Cause Judge (Complainant)
739 1591 Letter addressed to C.J.M, Godhra 13835
by Salim Yusuf Jarda
740 1592 Statement of accused Salim Yusuf 13836
Jarda U/s. 30(5) of Pota
741 1597 Questionnaire of accused Soukat 13840
Farukh Patadiya
742 1598 PW253 Deposition of P.G.Vyas, Sr.C.J. 13842
(Complainant)
743 1599 Questionnaire of accused Irafan 13846
Mohammad Hanif Pataliya
744 1603 Closing pursis by Sp.PP 13848
745 1612 Application of accused Avd. U/S. 91 13849
of C.R.P.C.
746 1614 Written reply by Spl.P.P. 13851
747 1622 Application for partly modified 13852
Ex.1612
748 1626 Reply to the application Ex.1622 13855
749 1628 Fresh Appln. Of accused advocate 13856
C.R.P.C.91
750 1634 Written Reply by Spl.P.P. Of Ex. 13889
1628
751 1635 Written submission of accused Adv. 13892
I.M.Munsi
752 1638 Copy of letter of Central Jail 13897
No.ACP/UTP/2422/10 dtd.
30.7.2010
753 1639 Copy of letter of Central Jail, 13898
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Ahmedabad
No.ACP/UTP/4023/10/dtd.
30.7.2010
754 1663 Written argument by accused adv. 13900
Charkha
755 1676 Written argument by accused adv. 14035
A.D.Shah
756 1687 Written argument by accused adv. 14183
I.M.Munsi with 26 photos
757 1715 Written argument by Spl. A.P.P. 14347
758 1880 Copy to occurrence book register of 14604
Fire Brigade Godhra
759 1781 Mark (28/200) report addressed to 14605
FSL Ahmedabad
760 1782 Mark (28/214) report addressed to 14607
FSL Ahmedabad Dtd. 18/2/03 for
Narco Psycho Test of accused
761 1783 Mark (@8/286) permission of 14609
Home Department, Sachivalaya,
Gandhinagar, Dtd.7.7.2004
762 1784 Mark (28/287) permission of Home 14613
Department, Sachivalaya,
Gandhinagar Dtd.9.7.2004
763 1785 Mark (28/294) permission of Home 14616
Department, Sachivalaya,
Gandhinagar, Dtd. 24.8.2004
764 1786 Mark (28/303) permission of Home 14620
Department, Sachivalaya,
Gandhinagar, Dtd.4.11.2004
765 1787 Mark (28/312) permission of Home 14624
Department, Sachivalaya,
Gandhinagar, Dtd.1.1.2005
766 1788 Mark (28/313) permission of Home 14628
Department, Sachivalaya,
Gandhinagar, Dtd.1
767 1789 Mark (28/313) Permission of Home 14630
Department dated 25.8.2005
768 1790 Mark (28/326) Permission of Home 14636
Department, Sachivalaya,
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Gandhinagar Dtd. 15/10/2005
769 1791 Mark (28/327) Permission of Home 14640
Department, Sachivalaya,
Gandhinagar, Dtd. 22.12.2005
770 1792 Mark (28/337) Permission of Home 14644
Department
771 1801 Mark (749/1) Xerox copy of F.S.of 14648
witness Nitin
772 1809 Mark 873/1 XRay form Xerox 14649
773 1812 Mark 912/1 Panchnama 14650
774 1814 Mark 931/2 Cash Memo Bill 14651
775 1823 Mark 115/1 xerox copy of Ticket 14652
Page No. 1635
776 1824 Mark 12461/1 xerox copy of letter 14653
written by I.O. addressed to C.J.M.,
Dated 22.9.2003
777 1825 Mark 1246/2 xerox copy of letter 14654
written by I.O. addressed to Exe.
Magistrate., Godhra Dtd.4.4.2004
778 1826 Mark 1246/3 Xerox copy of letter 14655
written by I.O., Dtd.8.4.2004
779 1864 Mark 1389/1 Para Military Form 14656
780 Index before Judgement
781 1875 Judgement 14661
782 1882 Joint copy of accused Commitment To
Warrant, Face Identification
Statement & Xerox copy of final
order vide O.W.No.4/11, dtd.
1/3/11
783 1887 Carbon copy to the Registrar 15574
General Gujarat High Court
Ahmedabad, vide O.W.No.110/11
dtd. 7/3/11 U/s 366 of Cr.P.C.
TABLEB
ADDMITTED DOCUMENTS
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ON BEHALF OF THE COMPLAINANTSTATE PROSECUTION HAS
SUBMITTED THE LIST OF DOCUMENTS WHICH HAS EXHIBITED AS
Exh: 28 IN S.C.No. 69/09 to 86/09 (204/09) AND THE FOLLOWING
DOCUMENTS WERE ADMITTTED BY THE ADVOCATE FOR THE
ACCUSED AND THEREFORE DOCUMENTS WERE EXHIBITED AS
UNDER:
ADMITTED DOCUMENTS
Sr Part & Exh. Items Particulars Date
No. Page No. No. Under
Exh: 281 28/9915 146 28/10 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
2 28/9916 147 28/11 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
3 28/9917 148 28/12 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
4 28/9918 149 28/13 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
5 28/9919 150 28/14 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
6 28/9920 151 28/15 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
7 28/9921 152 28/16 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
8 28/9922 153 28/17 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
9 28/9923 154 28/18 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
10 28/9924 155 28/19 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
11 28/9925 156 28/20 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
12 28/9926 157 28/21 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
13 28/9927 158 28/22 Panchnama of Identification of 28.02.2002
28 Dead Body of deceased.
14 28/9929 159 28/23 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
15 28/9930 160 28/24 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
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16 28/9931 161 28/25 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
17 28/9932 162 28/26 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
18 28/9933 163 28/27 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
19 28/9934 164 28/28 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
20 28/9935 165 28/29 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
21 28/9936 166 28/30 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
22 28/9937 167 28/31 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
23 28/9938 168 28/32 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
24 28/9939 169 28/33 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
25 29/9940 170 28/34 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
26 30/9941 171 28/35 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
27 31/9942 172 28/36 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
28 32/9943 173 28/37 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
29 33/9944 174 28/38 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
30 34/9945 175 28/39 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
31 35/9946 176 28/40 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
32 36/9947 177 28/41 Panchnama of Identification of 28.02.2002
Dead Body of deceased.
33 NOT IN 989 28/42 A.S.M. Yusufali M. Saiyed has 28.02.2002
P.B. produced the Certificate about
Time Schedule of impugned
Train
34 28/9948 178 28/43 Panchnama of 18 un 28.02.2002
50 identification of Dead Body of
deceased
35 NOT IN 990 28/45 P.S.O.Dalabhai Akhambhai has 03/03/02
P.B. produced the extract of Vardhi
36 NOT IN 991 28/69 Letter of Ticket Inspector,
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P.B. Ratlam
37 NOT IN 993 28/221 Report from research Designed 20.09.2002
P.B. & Standard Organization,
Lakhnow
38 36/12213 1001 28/239 ORDER of Home Department 16.10.2002
14 of State of Gujarat granting
Sanction Under Section
153(A) to file the Charge
sheet against accused
39 28/10079 244 28/241 Body Panchnama of A/3 of 13.10.2002
80 S.C.No. 70/09, Nannumiya @
Nikki Tamjadali Chaudhary
40 28/10081 245 28/242 Seizure Panchnama of Register 13.10.2002
82 from Hotel CLASSIC
41 28/10083 246 28/243 Seizure Panchnama of Register 19.10.2002
84 from Hotel PRINCE
42 28/10085 247 28/244 Seizure Panchnama of Register 20.10.2002
86 from Hotel VRUNDAVAN
43 28/10087 248 28/245 Seizure Panchnama of Register 20.10.2002
88 from Hotel VISHWA
44 28/10089 249 28/246 Seizure Panchnama of Register 21.10.2002
90 from Hotel SHAHIL
45 28/10091 250 28/248 Panchnama of Search of House 28.10.2002
95 of A/5 of S.C.No. 71/09,
Mohammad Hanif @ Motto
Chamro Abdul Rahim Bhatuk.
46 28/10096 251 28/249 Seizure Panchnama of Register 13.11.2002
97 from Hotel MOUNT SHIVA
47 NOT IN 995 28/250 Letter to Madrassa & Maulvi's 29.11.2002
P.B. informing that not to give
shelter to the absconding
accused.
48 NOT IN 996 28/251 Letter to Madrassa & Maulvi's 29.11.2002
P.B. informing that not to give
shelter to the absconding
accused.
49 36/12215 1002 28/253 ORDER of Home Department 18.12.2002
16 of State of Gujarat granting
Sanction Under Section
153(A) to file the Charge
sheet against accused
50 28/10098 252 28/254 Body Panchnama of A/1 of S.C. 18.01.2003
99 No.72/09, Idrish Ibrahim
Charkha @ Shaka
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51 36/12217 1003 28/261 ORDER of Home Department 16.04.2003
19 of State of Gujarat granting
Sanction Under Section
153(A) to file the Charge
sheet against accused
52 36/12220 1004 28/261 ORDER of Home Department 02/05/03
21 of State of Gujarat granting
Sanction Under Section
153(A) to file the Charge
sheet against accused
53 36/12222 1005 28/277 ORDER of Home Department 01/10/03
25 of State of Gujarat
CORRIGENDUM
54 28/10100 253 28/278 Body Panchnama of A/1 of S.C. 08/04/04
No.76/09, Yakub Abdul Sattar
Shaka
55 28/278/ Body Panchnama of A/1 of S.C. 08/04/04
A No.72/09, Idrish Ibrahim
Charkha @ Shaka
56 36/12209 997 28/280 Arrest Panchnama of A/2 of 05/05/04
S.C.No. 76/09 Abdul Karim
Haji Hussain Badam
57 28/10101 254 28/280 Body Panchnama of A/1 of S.C. 10/06/04
10102 No.77/09, Salim @ Salman
Yusuf Sattar Zarda
58 28/10103 255 28/283 Body Panchnama of A/2 of S.C. 05/07/04
No.77/09, Abdul Sattar Ibrahim
Gaddi Asla
59 28/10104 256 28/288 Body Panchnama of A/1 of S.C. 10/08/04
10105 No.78/09, Abdul Rauf Abdul
Majid Isa @ Dhesli @ Kamli
60 28/10106 257 28/289 Body Panchnama of A/2 of S.C. 11/08/04
10107 No.78/09, Yunus Abdulhaq
Samol 2 Ghadiyali
61 28/10116 262 28/304 Seizure Panchnama of Coach 08/11/04
19 S/6 of Sabarmati Ex. Train
62 28/10120 263 28/305 Body Panchnama of A/4 of S.C. 18.11.2004
21 No.79/09, Yunus Abdullaq
Samol 2 Ghadiyali Farook @
Haji Bhiriyo Abdul Sattar
Ibrahim MusalmanGaji
63 36/12210 998 28/307 Letter from S.P.W.Rly. 18.07.2002
Vadodara to Sr. D.E.E.
(T.R.O.) Vadodara
64 36/12211 999 28/308 Letter from Sr. D.M.E.Vadodara 04/04/03
To Executive Director
(Coaching) R.D.S.O. Luknow
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65 36/12212 1000 28/309 Letter from Div. Mechanical 21.12.2004
Engineer, W. Rly. Vadodara To
Dy. S.P. W. Rly. Vadodara
along with Letter dated
06.05.2003 of R.D.S.O.
Lucknow.
66 28/10123 264 28/311 Body Panchnama of A/1 of S.C. 24.12.2004
24 No.80/09, Siddik Abdul Rahim
Abdul Sattar Bakkar Muslim
Shaikh
67 28/10123 265 28/315 Body Panchnama of A/1 of S.C. 03/06/05
24 No.81/09, Rayeesh Hussain
Ismail Mitha @ Bhaina
GhanchiMusalman
68 28/10125 266 28/316 Body panchnama of A/2 of S.C. 28.06.2005
26 No. 81/09, Irfan Abdul Majid
Ghanchi Kalandar @Irfan
Bhabho
69 28/10127 267 28/318 Body Panchnama of A/1 of S.C. 26.07.2005
28 No.82/09, Irfan Mohmmad
Hanif Abdul Gani Pataliya
28/10129 268 28/319 Body panchnama of A/2 of 26.07.2005
30 S.C.No. 82/09, Irfan
70
Mohammad Hanif Abdul Gani
Pataliya
28/10130 269 28/321 Body panchnama of A/3 of 03.08.2005
71 31 S.C.No. 82/09, Saukat Abdullah
Maulvi Ismail Badam
28/10131 270 28/323 Body panchnama of A/4 of 06.09.2005
32 S.C.No. 82/09, Mohammad
72
Hanif @ Hani Abdullah Maulve
Ismail Badam
28/10133 271 28/325 Body panchnama of A/1 of 27.09.2005
34 S.C.No. 83/09, Mohammad
73
Hanif @ Hani Abdullah Maulve
Ismail Badam
28/10135 272 28/328 Body panchnama of A/1 of 16.02.2005
74 36 S.C.No. 84/09, Mehbub Ahmed
Yusuf Hasan @ Latiko
28/10137 273 28/330 Body panchnama of A/1 of 10.04.2006
75 38 S.C.No. 85/09, Saukat Yusuf
Ismail Mohan @ Bibino
36/12226 28/334 ORDER OF Home Dept. Of 09.05.2006
27 State of Gujarat granting (10.5.2006)
76 Sanction U/s 153 (A) to file
the charge sheet against the
accused.
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36/12228 28/335 ORDER OF Home Dept. Of 03.07.2006
29 State of Gujarat granting (4.7.2006)
77 Sanction U/s 153 (A) to file
the charge sheet against the
accused.
36/12244 1016 988/1 Body panchnama of A/1 of 25.08.2009
78 45 S.C.No. 204/09, Ibrahim Adam
Dhantiya @ Kachuko
36/12246 1017 988/2 panchnama of Seizure of 25.08.2009
47 Passport of A/1 of S.C.No.
79
204/09, Ibrahim Adam
Dhantiya @ Kachuko
28/10139 274 28/336 Body panchnama of A/1 of 12.11.2007
80 S.C.No. 86/09 Siddik Ibrahim
Hathila
36/12230 1008 28/338 Report given by Sr. Section 19.09.2005
31 &32, 33 Engineer, Ahmedabad giving
81 the Coach Numbers & 2
drawings of Coach wherein the
A.C.P. Systems were installed.
COMPLAINT
Mark. 28/1 S.C. No. 69/ 2009 Dt. 25062009 Sd/ ASJ.
Exh.1190 Dt. 150310, Sd/ ASJ., PMS. At. Ah’d.
Dt. 27022002
My name is Rajendrarav Raghunathrav, by Caste – Jadav, Age
44 years, Occupation – Railway Driver, Residing at
Marathavas, Nr. Ratlam Topkhana, M.P..
Having declared the fact of my complaint in person, I dictate
that, I have been performing duty as a Railway Engine Driver
in Ratlam Head Quarters for the last seven years.
Today, at 04:50 am on 27022002, I left with Sabarmati
Express – Train No. 9166 – AP to reach to Vadodara Railway
Station from Ratlam. The Assistant Driver Mukesh
Raghuvirprasad Pachori and the Guard Mr. S.M. Verma were
with me. We reached to Godhra Railway Station at 07:40 am
with this train and stopped the train on platform no. 1 and on
receiving signal, we started the train at 07:45 o’ clock and left
towards Vadodara and when 4 to 5 coaches passed from the
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platform, the chain pulling occurred at 07:47 o’ clock.
Therefore, the train was stopped and as our Assistant Driver
Mukeshbhai and the Guard made inquiry, the chain pulling
occurred in coach Nos. 83101, 5443, 51263, 88238. Therefore,
the Master was informed through walkietalkie and after
resetting chain pulling, we started the train. As the train
reached near Godhra ‘A’ Cabin, the chain pulling occurred
again and the stone pelting was started from the platform side.
We saw that, the mob of about 900 to 1000 persons was
pelting stones on the train and some persons out of them set
Coach no. 93498 – S/6 on fire. Therefore, I immediately
informed the S.S. [Station Superintendent], Godhra through
walkietalkie to send police assistance and fire brigade
immediately and as the train may not roll, we stopped the
train by putting OT (wooden pieces). During that period,
Railway Police, R.P.F. and Fire Brigade persons came and the
police used tear gas to disperse the mob and also did lathi
charge, however as the mob was not dispersed, the police
resorted to firing and the mob ran towards the city while
pelting stones and Fire Brigade started extinguishing the fire.
After extinguishing the fire, we saw in the coach that, the
inside portion of the coach was completely burnt and as the
police who were with us examined, about ten burnt dead
bodies were found lying on one another and some other
persons (passengers) sustained injuries due to stone pelting
and burning. As they went to the hospital themselves, it can’t
be said as to how many persons sustained injuries and the
luggage of the passengers was completely burnt in the coach of
the said train. The coach of the Railway is completely burnt
and the police have arrested some persons.
Therefore, today on 27022002, between 07:47 to 08:20 o’
clock in the morning, about 900 to 1000 persons of the
Muslim community of Signal Faliya and surrounding area of
Godhra City did chain pulling illegally in our Sabarmati
Express Train no. 9166 – AP, pelted stones, set one coach on
fire and burnt it completely, tried to set on fire the passengers
inside the coach and as about 10 passengers were burnt alive
with their luggage, and as they have run away on Lathi charge
and firing being made by the police, it is my lawful complaint
against them. I don’t know the name and address of any
person out of this mob. My colleague Assistant Driver, the
Guard and those who found in the investigation etc. are my
witnesses.
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Date : 27.02.2002
Time : 9:30 am
Gist of the case of the prosecution and the Charge framed by the
learned Additional Sessions Judge containing relevant facts, which
have bearing on the case are as under:
Crime Register No. 9/2002, Godhra Railway Police Station.
IPC Sections : 302, 307, 147, 148, 149, 436, 153A r/w 120B and
Sections – 141, 150, 153 Indian Railways Act.
Date of Offence : 27.02.2002
Total number of Deaths : 59
Total number of Passengers injured : 48
Value of Damage to Public Property : Rs.17,62,475/
Total Number of Charge sheets filed – 19
Sessions Case No. 69/2009 to 86/2009 & 204/2009.
Total number of accused chargesheeted : 101
Abatement of Trial qua : Five accused.
Total number of Juvenile accused : 2 chargesheeted but trial separated
and 3 others directly sent to Juvenile court.
Total witnesses : 253
[Reference given in Judgment in the trial court Page No.14713
line No.13]Total documentary evidence : 780
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[a] Documentary evidence produced by prosecution : 748
[Reference given in Judgment in the rial court Page No.14706 to
14709 Column No.20][b] Documentary evidence produced by defence : 32
[Reference given in Judgment in the rial court Page No.14710 to
14711 Column No.21]Total Exhibits : 1875
[including Exhibit given to the depositions of witnesses, misc.
papers applications, yadi, vakalatnama, pursis, etc.]Judgment is given Exh.1875
Against 31 accused proved
Against 63 accused not proved
Other accused abscondingConvicted : Capital Punishment 11
Life sentence 20
Acquitted : 63We are informed that Saukat @Bhano Farook Abdul Sattar
Pataliya, accused No.5 of Sessions Case No.75/2009 died during
pendency of these appeals and copy of jail record is made available. In
view of the above, appeal qua Saukat @Bhano Farook Abdul Sattar
Pataliya is abated.
Charges framed for offences U/s. 143, 147, 148, 302, 307, 323,
324, 325, 326, 332, 395, 397, 435, 186 and 188 r/w 120B, 149, 153A,
212 of the IPC, and Sections – 14, 150, 151 and 152 of the Indian
Railways Act, Sections – 3 and 4 of the Prevention of Damages to PublicPage 73 of 988
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Property Act, and Section 135(1) of the Bombay Police Act.
The Charge Framed by the trial court reads as under:
THE CHARGE
“BEFORE THE GODHRA [PANCHAMAHAL] ADDITIONAL
SESSIONS JUDGE COURT
CAMP :: AHMEDABAD
Sessions Case No. 69/2009
EXH. 29
Complainant :: The State of Gujarat
Versus
Accused :
1. Mohmed Ansar Qutubuddin Ansari
2. Betulla Kader Taili
3. Firozekhan Gulabkhan Pathan
4. A. Rehman Yusuf Dhantiya
5. Juniyad Farukh Hayat
6. Ishak Yusuf Luhar
7. Firozekhan Jafarkhan Pathan
8. Fakruddin Yusuf Musalman [expired]
9. Sabir Anwar Ansari
10. Inayat A. Sattar Jujara
11. Nasirkhan Sultankhan Pathan
12. Sadikkhan Sultankhan Pathan
13. A. Sattar Ismail Giteli
14. Yasin Habib Malek
15. Alauddin Alimuddin Ansari
16. Yusufkhan Alubhai Bakzubhai Kazi
17. Yusuf Sabir Ismail Pathan
18. Yahmohmed Shafi Mohmed Chhakda
19. Gulzarali Agnu Ansari [expired]
20. Abdul Asu Mistry
21. Rafik Ahmed Jamnu
22. Ahmed A. Rahim Hathibhai
23. Shamshekhan Sultankhan Pathan
24. Idrish Abdulla Umarji Shaikh
25. Hussain Mohmed Dhobi [expired]
26. Azgarali Kamruddin Voraji
27. Kamal Badshah Mohmed Sharif
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28. Taiyab a. Hak Khoda
29. Suleman Ahmed Hussain @ Tiger
30. Mohmed Mushrafkhan Ashrafkhan Pathan
31. Abidbhai Karimbhai Shaikh.
32. Mohmed Ibrahim Shaikh
33. Hussain A. Sattar Durvesh
34. Shaukat Mohmedbhai Shaikh
35. Ahmed A. Rahim Kala
36. Asif @ Babu Sidik Kader
37. A. Rahim Kalu
38. Anwar Hussain A. Rahim Pittal Shaikh
39. Mohmed A. Salam Giteli
40. A. Rehman A. Majid Dhatiya @ Kankato
41. Salim A. Gafar Shaikh
42. Mohmed Hussain A. Rahim Kalota
43. A. Gani Ahmed Shaikh
44. Jabir Abdul Kala
45. A. Rauf Ahmed Yayman
46. Sirajbhai Abdulla Jamsa [expired]
47. A. Razak A. Rahim Dhatiya @ Dungariya
48. Bilal Ismail A. Majid Sujela
49. Kasim A. Sattar @ Kasim Biryani
50. Irfa Siraj Pada Ghanchi
51. Anwar Ahmed Meda @ Shaikh
52. A. Razak Yakub Ismailwala
53. Mohmed Saed A. Salam Badam Shaikh
54. Ishak Mohmed Ghanchi Mamdu
And other persons, and the absconding accused.
Ibrahim Adam Dhantiya @ Kachuka and other 16 persons.
CHARGES
I, P.R. Patel, Additional Sessions Judge, Godhra
[Panchamahal] District Court, Camp – Sabarmati Central Jail
Compound, Ahmedabad frame these charges against the
accused that,
[1] On the occasion of Ram Yagya Ahuti organized at
Ayodhaya Kar Sevaks from all over the country had gone
and of them several Kasevaks were returning on
27/2/2002 in the Sabarmati Express Train No. 9166UP, the
scheduled time of arrival of the said train at Godhra
Railway Station was late at night at 2.55 a.m and the
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stoppage at the Godhra Railway Station was 5[five]
minutes.
[2] You were aware of the above facts, from amongst
the accused the below mentioned accused had on
26/02/2002 at about nine o’clock planned criminal conspiracy
for achieving your common object,
[1] Salim @ Salman Yusuf Jarda [accused No. 1
Sessions Case No. 77/09]
[2] Shaukat Ahmed Charkha @ Lalu [absconding
accused No. 7, Sessions Case No. 86/09]
[3] Salim Haji Ibrahim Badam @ Salim Panwala
[absconding accused No. 8 Sessions Case No.
86/09] [absconding accused paiki No. 8]
[4] Jabir Binyamin [accused No. 2 Sessions Case No.
72/09]
[5] Abdul Razak Kurkur [accused No. 2 Sessions Case
No. 70/09].
[3] As a part of the said criminal conspiracy, you had
constituted unlawful assembly and the above accused had
gathered in the Room No. 8 in the Aman Guest House of
the accused No.2 [Sessions Case No.70/09] Abdul Razak
Kurkur for discussions, and during discussion it was decided
to take petrol from the petrol pump of Kalabhai at Godhra, and
accordingly from amongst the accused following accused had
used the parrot green colour loading rickshaw No. GJ6U
8074 and placed seven carboys of 20 liter petrol capacity and
gone to Kalabhai’s petrol pump on 26/2/2002 at night, and
accordingly in all the seven carboys filled approximately 2020
liters of petrol and brought the tempo rickshaw No.GJ6U
8074 from the petrol pump and parked the tempo on the rear
of the Aman Guest House.
[1] Salim Haji Ibrahim Badam @ Salim Panwala
[absconding accused No. 8 Sessions Case No.
86/09]
[2] Salim @Salman Yusuf Jarda [accused No.1
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Sessions Case No.77/09]
[3] Shaukat Ahmed Charkha @ Balu [absconding
accused No. 7, Sessions Case No.86/09]
[4] Siraj Mohmed Abdul Rehman @ Bala [accused
No.1 Sessions Case No.79/09]
[5] Jabir Binyamin Behra [accused No. 2 Sessions
Case No.72/09].
At that time from amongst the accused, the accused
No.2[Sessions Case No. 70/09] Abdul Razak Kurkur had also
taken his M80 Moped and accompanied them to the petrol
pump. By such act Siraj Mohmed Abdul Rehman Meda,
@Bala [accused No.1 Sessions Case No. 79/09] had also joined
in spite of the knowledge of unlawful object of the unlawful
assembly.
[4] As noted above, all the seven carboys filled with petrol
were brought to the rear portion of Aman Guest House, at
that time amongst the accused,
[1] Imran Ahmed Batuk @Sheru [absconding accused
No.10 Sessions Case No. 86/09]
[2] Hasan Ahmed Charkha and [accused No.4
Sessions Case No. 71/09]
[3] Mehboob Khalid Chanda [Accused No.1 Sessions
Case No. 73/09] also came to the said place and all
these accused joined the unlawful assembly. And all
above accused have together placed the said petrol filled
carboys in the house of accused No.2 [Sessions Case
No.70/09] Abdul Razak Kurkur in the Signal Faliya on
26/2/2002 at night time.
[5] In the meanwhile from amongst the accused,
[1] Bilal Ismail Abdul Majid Sujela @Bilal [accused
No.48 Sessions Case No.69/09]
[2] Farukh Mohmed Bhana [absconding accused
No.2 Sessions Case No.86/09] also joined the unlawful
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assembly and you had also come to the said place
at Aman Guest House and you have informed the
above accused, who were present there that,
‘We have met with Maulvi Hussain Haji Ibrahim
Umarji and Maulvi Hussain Haji has issued
orders to burn the coach No. 6 of the Sabarmati
Express train arriving from Ayodhaya.”
[6] Thus, for achieving the common object of the unlawful
assembly for discussions on further action all the above
mentioned accused have again assembled in the Aman Guest
House for discussions, and in the meanwhile from amongst the
accused, Salim Haji Ibrahim Badam @Salim Panwala had
gone to the Godhra Railway Station for knowing the exact time
of arrival of Sabarmati Express Train and on receiving the
information that the said train was running late by four hours,
returned to Aman Guest House and appraised these facts to
the other accused present there. Thereafter all the above
accused who were present in the Aman Guest House at night
had decided to gather on 27/2/2002 in the early morning at 6
to 6.30 at Aman Guest House, thereafter the above accused
had separated at Aman Guest House and went to
their respective places.
[7] The said Sabarmati Express Train No.9166UP arrived
on 27/2/2002 in the early morning at 7.43 hours on the
Godhra Railway Station and stopped on platform No.1 and in
the said train at that time over and above the Kar Sevaks other
passengers were also travelling, when the train stopped at the
platform then from amongst the Kar Sevaks and other
passengers several descended on platform for tea and
refreshments. At the said time Kar Sevaks that descended
from the train were shouting slogans of ‘Jai Shree Rama’ and
etc.
[8] From amongst the said Kar Sevaks that descended on
the platform for tea and refreshments had altercations and
scuffle with Muslim community hawkers selling tea and
refreshments on the platform. In the meanwhile a Muslim
community girl came on the platform for boarding other train
with her mother and sister. Amongst several Kar Sevaks a
Kar Sevak had tried to tease her, so the girl and her mother
and sister ran and went into the nearby booking office.
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[9] Taking advantage of the above quarrel and teasing the
girl, as a part of criminal conspiracy constituted on the
previous night amongst the accused, from amongst the accused
the accused,
[1] Salim Haji Ibrahim Badam @ Salim Panwala
[absconding accused No. 8, Sessions Case No.86/09]
had shouted and gathered the Muslim hawkers on the
platform, in the meanwhile from amongst the
accused Mehboob Ahmed Hasan @Latiko [accused No.
1, Sessions Case No. 84/09] ran towards the edge of the
platform and went near the compound wall and shouted
and gathered the Muslim inhabitants of Signal Faliya
near the Station Office and Parcel Office.
[10] In the meanwhile, the said Sabarmati Express Train had
started, so amongst the accused, Salim Haji Ibrahim Badam
@Salim Panwala [absconding accused No.8, Sessions
Case No. 86/09] had wrongly instigated saying that, ‘Kar
Sevaks are beating Muslim community persons’. ‘Muslim girl is
abducted in train’ in spite of the knowledge that the said
Muslim Girl with her mother and sister are in the booking
office, but as a part of previously constituted criminal
conspiracy instigated and sent three hawkers to the coach of
the said railway train and done chain puling through them
and forced the train to stop after starting from the platform.
[11] As stated above, due to the chain pulling the train
stopped on the platform, so the Muslim community persons
that had gathered near the Station and Parcel office started
pelting stones on the train immediately to achieve their
common objects, but in the meanwhile R.P.F. and the
policemen immediately came on the platform and tried to
control the situation and then the train started again.
[12] In spite of this, from amongst the accused,
[1] Salim Haji Ibrahim Badam @ Salim Panwala
[absconding accused No. 8, Sessions Case No. 86/09]
[2] Abdul Razak Mohmed Kurkur [accused No.2
Sessions Case No. 70/09]
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have as part of their preplanned criminal conspiracy made
three hawkers to board the running train, and both reached
“A” cabin and near the “A” cabin again chain pulling in the
train was done and pressurized to stop and instigated, and
thereafter you both, Salim Haji Badam and Abdul Razak
Kurkur had dispatched one petrol carboy on one red colour
M80 moped towards “A” cabin.
[13] In the meanwhile, when there was stone pelting on the
platform at that time from amongst the accused present,
you accused,
[1] Shaukat Ahmed Charkha @Lalu [absconding
accused No. 7, Sessions Case No. 86/09]
[2] Hasan Ahmed Charkha @Lalu [accused No.4,
Sessions Case No. 71/09]
[3] Mehboob Ahmed Hasan @ Latika [accused No.1
Sessions Case No. 84/09]
[4] Imran Ahmed Bhatuk @ Sheru [absconding
accused No.10, Sessions Case No. 86/09]
[5] Jabir Binyamin Behra [accused No. 2, Sessions
Case No.72/09]
[6] Irfan Abdul Majid Kalander @ Bhobha [accused
No. 2, Sessions Case No. 81/09]
[7] Irfan Hanif @ Hani Patadiya [accused No. 1,
Sessions Case No. 82/09]
[8] Rafik Hussain Bhatuk and [absconding accused
No. 11, Sessions Case No. 86/09]
[9] Ramzani Binyamin Vachka
ran from the platform and reached the lane behind Aman
Guest House in Signal Faliya and from amongst the accused
from the rear of the house of the accused Adul Razak Kurkur
[accused No.2, Sessions Case No.70/09], as per the
preplanned conspiracy loaded eight carboys in which 20 liters
petrol was filled and collected as part of preplanned
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conspiracy in the loading rickshaw GJ6U8074 along with
other deadly weapons and with rickshaw went via Ali
Masjid side temporary road and reached near “A” cabin.
[14] As per the above preplanned conspiracy, due to chain
pulling again in the train the train had to stop again at the
decided place near “A” cabin and in the meanwhile due to
shouts of 900 to 1000 Muslims mob came from nearby
Signal Faliya and gathered near “A” Cabin and from
amongst them several had started pelting stones on the
train, and, in the meanwhile from amongst the accused,
[1] Mehboob Yakub Mitha @ Popa [accused No. 2,
Sessions Case No. 71/09]
[2] Mehboob Khalid Chanda [accused No. 1,
Sessions Case No. 73/09]
[3] Ayub Abdulgani Patadiya [accused No. 2,
Sessions Case No. 82/09]
[4] Yunus Abdul Haq Ghadiyali [accused No. 2,
Sessions Case No. 78/09]
[5] Kadri Abdulgani Patadiya [absconding accused
No. 5, Sessions Case No. 86/09]
[6] Anwar Abdulla Kalander [Juvenile] [accused No.
3, Sessions Case No. 77/09]
[7] Anwar Mohmed Meda @ Lala and [accused No.
51, Sessions Case No. 69/09]
[8] Sikander have with the intentions to achieve
their common objects reached the said train coach
No. S/2 carrying weapons and started to break
windows glasses and tried to set fire to the coach from
outside.
[15] During this same time period, for achieving your
common objects from amongst the accused,
[1] Abdul Razak Mohmed Kurkur and [accused No.
2, Sessions Case No. 70/09]
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[2] Salim Haji Ibrahim Badam @ Salim Panwala
[absconding accused No. 8, Sessions Case No. 86/09]
both reached the train Coach No.6 and amongst them the
accused No.2 [Sessions Case No.79/09] Abdul Razak Mohmed
Kurkur had taken the petrol filled carboy and placed his foot
on the stairs of the door of the S6 towards the engine and
placed the mouth of the carboy in the broken window on the
side of the toilet and at that time from amongst the accused,
the accused No.8 [Sessions Case No.86/09] Salim Ibrahim
Badam @Salim Panwala had lifted the bottom and spilled the
petrol from the carboy into the coach.
[16] In the meanwhile, as per the preplanned conspiracy in
the said coach S6 in the other part, that is, near the door
towards the Godhra Railway Station, amongst the accused,
[1] Shaukat Ahmed Charkha @Lalu [absconding
accused No.7, Sessions Case No.86/09]
[2] Imran Ahmed Bhatuk @ Sheru [absconding
accused No. 10, Sessions Case No. 86/09]
[3] Jabir Binyamin Behra [accused No. 2, Sessions
Case No. 72/09]
[4] Irfan Abdul Majid Kalander @ Irfan Bhobha
[accused No.2, Sessions Case No. 81/09]
[5] Irfan Hanif @ Hani Patadiya [accused No. 1,
Sessions case No. 82/09]
[6] Rafik Hussain Bhatuk and [absconding accused
No. 11, Sessions Case No. 86/09]
[7] Ramjani Binyamin Vachka [accused No. 3,
Sessions Case No. 71/09]
have taken other carboys full of petrol and reached
the space between S6 and S7 and placed the said
carboys on the land.
[17] During the said period from amongst the mob standing
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near S2, the accused,
[1] Mohmed Sakir @Babu Abdul Patadiya [Juvenile
Court, accused No. 3] [Sessions Case No. 78/09]
[2] Kadir Abdulgani Patadiya [absconding accused
No. 5, Sessions Case No. 86/09]
[3] Mehboob Yakub Mitha @ Popa [accused No. 2,
Sessions Case No. 71/09]
[4] Yakub Abdulgani Patadiya [absconding accused
No. 4, Sessions Case No. 86/09]
[5] Ibrahim Samol @Bhano [accused No. 5,
Sessions Case No. 78/09]
[6] Anwar Abdulla Kalander [Juvenile][accused No.3,
Sessions Case No. 77/09]
[7] Anwar Mohmed Meda @Bala [accused No.51
Sessions Case No. 69/09]
[8] Soab Yusuf Ahmed Kalander [accused No.1,
Sessions Case No. 75/09] and
[9] Yunus Abdul Haq Samol @Ghadiyadi [accused
No.2, Sessions Case No.78/09]
and others had come near S6 and due to the stone
pelting the doors and windows of the said coach S6
were closed the same were tried to be broken using
sticks, pipes, rods and etc.
[18] During this period from amongst the accused,
[1] Hasan Ahmed Charkha @Lalo [absconding
accused No.7, Sessions Case No.86/09]
[2] Mehboob Ahmed Hasan @Latiko [accused No.1,
Sessions Case No.84/09]
both also came there and the carboys lying on the land
between S6 / S7 of these carboys on two carboys the
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accused Mehboob Ahmed Hussain had made 3 to 4 holes
near the mouth using knife and using the same knife
made a big slit in the vestibule common between S6/S
7 coach, therefore there was space created and so
Mehboob Ahmed Hassan and accused No.2 [Sessions
Case No.72/09] Jabir Binyamin Behra both had climbed,
thereafter the accused No.1 [Sessions Case No. 84/09]
Mehboob Ahmed Hasan had handed over the knife in
his hands to the accused Shaukat Ahmed Charkha
[absconding accused No.7, Sessions Case No.86/09] so
he had made holes in the remaining carboys full of
petrol near the mouth of the lid. In the meanwhile the
accused Jabir Binyamin [accused No.2 Sessions Case
No.72/09] and Mehboob Ahmed Hassan [accused No.1,
Sessions Case No.84/09] had kicked and used force to
open the door to the corridor of S6 and opening of
stopper, so the door was opened.
[19] Thereafter from amongst the accused, Shaukat Ahmed
Charkha [absconding accused No.7, Sessions Case No.86/09]
handed over two carboys full of petrol from carboys having
holes been made, to the accused,
[1] Mehboob Ahmed Hassan [accused No. 1, Sessions
Case No. 84/09]
[2] Jabir Binyamin [accused No.2, Sessions Case
No.86/09] and they took the carboys and both of you
had gone into the corridor and entered the coach
No.S6, and on this same way the accused No.
Shaukat Ahmed Charkha @Lalu had also climbed and
the accused No.11 Rafik Hussain Bhatuk [Sessions Case
No.86/09] had handed over one such carboy to
absconding accused No.7 Shaukat Ahmed Charkha
[Sessions Case No.86/09] and taking it he had entered
the coach No.S6, and after going inside opened the
door on the backside of the coach towards Godhra
from inside, therefore through that door from amongst
the accused,
[1] Rafik Hussain Bhatuk [absconding accused No. 11
Sessions Case No. 86/09]
[2] Irfan Abdul Majid Kalander @ Irfan Bhobho
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[accused No. 2 Sessions Case No. 81/09]
[3] Imran Ahmed Bhatuk [absconding accused No.
10, Sessions Case No. 86/09]
thus, all the three persons had carried three different
carboys filled with petrol and entered into the Coach No.
S6 and the above all accused who had entered the
coach in this manner carrying carboys they had poured /
spilled the petrol towards the inside of the Coach No.S6
and thereafter all the accused had immediately come out
from the said coach.
[20] At this stage, from amongst the accused,
[1] Hassan Ahmed Charkha @ Lalu [accused No. 4,
Sessions Case No. 71/09]
[2] Irfan Hanif @Hani Patadiya [accused No.2,
Sessions Case No. 82/09]
[3] Ramjani Binyamin [accused No.3, Sessions Case
No.71/09]
All the three persons have from outside the coach
from the remaining carboys full of petrol and with
holes were poured / spilled inside the coach No. S6
from the broken windows.
[21] Thereafter from amongst the accused, Hasan Ahmed
Charkha @Lalu [accused No. 4 Sessions Case No. 71/09] burnt
a rag and with the help of stick thrown inside the Coach S6 as
per the criminal conspiracy to burn alive the Kar Sevaks and
other passengers travelling in S6 coach and burnt the coach
No. 6.
[22] In this manner the coach No.S6 was burnt by spraying
petrol and thereafter the above accused ran from there and at
the time of running away in this manner amongst you,
[1] Jabir Binyamin [accused no.2, Sessions Case No
72/09]
[2] Sidik Mohmed Morya [accused No.6, Sessions
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Case No. 75/09]
[3] Shaukat @ Bhano Farukh Abdul Satar Patadiya
[accused No. 5, Sessions Case no. 75/09
[4] Shaukat Yusuf Mohan @Bibi [accused No.1,
Sessions Case No. 85/09]
have, held one passenger making attempt to descend
from the offside of the train coach for saving
themselves, and caused injuries using the weapons in
their hands and looted two gold rings and one gold
chain.
[23] In the meanwhile with regard to the burnt coach
information was given to the Godhra Municipality Fire Fighter
Department so the Municipality Fire Fighters immediately
departed from its place via Signal Faliya via Bhamaiya Nala
to the place of “A” cabin, but at that time from amongst the
accused,
[1] Abdul Rehman Abdulmajid Dhantiya @Kankatto
@Jamburo [accused No.4, Sessions Case No.69/09]
[2] Bilal Ismail Abdulmajid Sujela @Bilal Haji
[accused No. 48, Sessions Case No. 69/09]
and the other accused have together pelted stones on the
fire fighter, and caused injuries to the staff and caused
obstructions in performing their duties, and the fire
fighter driver side head light was broken and the vacant
side door glass and the glass above the said door was
broken and fire fighter No.GRQ8041 public property
was caused damaged and with a view that they may not
reach immediately to extinguish the fire thereby
willfully caused obstructions.
[24] During the above incident, the other accused and other
Muslims in the mob came carrying weapons and etc. and
attacked the Kar Sevaks and other passengers and shouted
slogans, ‘Pakistan Zindabad’, ‘Hindustan Murdabad’, ‘Hindu
Kafiro ko jala do’, and with malafide instigated communal
sentiments, and as stated above committed criminal offences
and in the coach S6 coach the Kar Sevaks / passengers
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travelling of them 59 [men, women and children] were burnt
alive and caused death whereas other 48 women, men and
children were caused simple and grievous injuries with fire and
stone etc, and by such act attempted to cause their death.
[25] As stated above the coach No.S6 was fully burnt and the
coach No.S5 and S7 were affected by flames and stone
pelting and on other coaches pelted stones and the said
railways property was intentionally caused damage of
Rs.17,62,475/ and also caused damage to the baggage of the
passengers.
[26] From amongst the accused, Nannumiya Tamjad Ali
Chaudhary [accused No. 3, Sessions Case No. 70/09] was
previously serving as Constable in the C.R.P.F. and you were
dismissed from the said department thereafter also the official
box was not submitted with the department, and stayed in the
Aman Guest House, and during the trafficking of charas, came
in contact with Abdul Razak Kurkur of the said Guest House,
and from amongst the accused,
[1] Irfan Siraj Pada [accused No. 50, Sessions Case
No. 69/09]
[2] Jabir Binyamin Behra [accused No.2, Sessions
Case No.72/09]
[3] Imran Ahmed Bhatuk @ Sheru [accused No. 10,
Sessions Case No. 86/09]
[4] Kasim Abdul Satar @Kasim Biryani [accused
No.49 Sessions Case No. 69/09]
[5] Hasan Ahmed Charkha @Lalu [accused No.4,
Sessions Case No. 71/09]
[6] Mehboob Khalid Chanda [accused No. 1, Sessions
Case No. 73/09]
imparted training to use weapons and throwing bomb,
and during the tours to Kashmir discussed the Jehadi
activities, and instigated so that there should not be any
harmony between the Hindu Muslim.
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[27] From amongst the accused, Maulvi Hussain Haji
Ibrahim Umarji [accused No. 1, Sessions Case No. 74/09]
has played the major role in the above criminal conspiracy, and
instigated the other accused, and made all possible efforts for
achieving the above criminal conspiracy and abated the
accused involved in the offence in absconding / giving shelter,
in spite of the knowledge that it is an offence and in spite of
clear instructions every month such accused were provided
assistance of Rs. 1500/ per month.
[28] Thus, the accused have preplanned conspiracy, with a
view that there should not be any harmony between Hindu
Muslim and without bothering that in future there will be
communal riots as a part of the criminal conspiracy for
achieving your common intentions committed the above
unlawful acts and abetted the main active accused in the
offence, and carried weapons publicly, breached the
notification of prohibition against carrying weapons, and as
stated above caused the death of 59 persons, injured 48
persons, damaged the government property, looted the
property of the passengers, and burnt and all the accused,
have committed the criminal offence punishable under Indian
Penal Code sections 302, 307, 323, 324, 325, 326, 332, 395,
397, 435, 186, 188 read with sections 120b, 153a, 212, 143,
147, 148, 149 and Indian Railways Act sections 141, 150,
151, and 152 and Prevention of Damages to Public Property
Act section 3, 4 and Bombay Police Act section 135(1) within
the jurisdiction of this court as is prima facie evident thus the
trial for the said offences be held against all the accused.
Date :: 25/6/2009
Central Jail, Sabarmati
Ahmedabad
sd/
[P.R.Patel]
Additional Sessions Judge
Panchamahal, Godhra
Camp – Sabarmati Central Jail
Ahmedabad”
PART IIIA
SUBMISSIONS OF MR. A.D.SHAH, LEARNED COUNSEL FOR DEFENCEPage 88 of 988
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AND REFERENCE TO PARAGRAPHS OF RELEVANT TESTIMONIES OF
THE WITNESSES TO TEST THEIR CREDIBILITY AND RELIABILITY
ALONG WITH NATURE OF CONTRADICTIONS, OMISSIONS,
DISCREPANCIES, IMPROVEMENTS, EXAGGERATIONS, ETC.
1 Mr. A.D.Shah, learned counsel would make submissions on
behalf of defence in three different sets viz. [1] eye witnesses, who saw
the incident which also include injured eye witnesses, Kar sevaks,
passengers travelling in Sabarmati Express including in illfated coach
S/6 which consisted of authorised as well as unauthorised passengers;
[2] [GRPF, RPF and Godhra Town Police] Police personnel, FSL, railway
employees, Fire Brigade employees; and [3] confessional statements of
one of the accused vis. Jabir Binyamin Behra, which needs corroboration
and other statements of witnesses recorded under Section 164 of the
Code by concerned Magistrates.
2 As the charge sheet was filed on 22.05.2002 and
supplementary charge sheets, later on qua CR. No.9 of 2002 was
registered on the day of incident i.e. 27.02.2002 for which charge was
framed by learned trial Judge vide Exh.29 on 25.06.2009, to which
detailed reference is made in earlier part of this judgment.
3 A reference is made to the incident in question which took
place on 27.02.2002 at 7:43 am Sabarmati Express, Train No.9166 UP
arrived at platform No.1 at Godhra Railway Station and was running
behind its schedule arrival at 2:55 am. That item Nos.8, 9 and 10 of the
charge, refers to mob consisting of 900 to 1000 persons and Item Nos.14
and 15 of the charge refers to Coach Nos.S/2, S/6, S/5 and S/7. It
further refers about breaking open of sliding door of S/6. Item Nos.19,
20, 21 and 24 refer to death of 59 persons and about receiving grievous
and simple injuries by 48 persons [details of translated charge framed by
learned Sessions Judge is supplied by learned counsel appearing for thePage 89 of 988
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defence].
4 According to Mr. A.D.Shah, some dispute arise out of
misbehaviour of Kar Sevaks with vendors / hawkers of refreshment at
platform No.1 at Godhra Railway Station, including usage of provocative
words by Kar Sevaks against hawkers belonging to Muslim community.
That hue and cry was raised when one of the Kar Sevaks tried to drag a
Muslim lady to a coach of the train but she could relieve herself and
rushed to office of Station Master. Upon shouting by one of the
hawkers, stone pelting started, but in the meanwhile Railway Police
personnel arrived and train started. First chain pulling took place due to
some of Kar Sevaks could not board train and upon noticing such chain
pulling, Guard and Assistant Driver reset it and within few minutes
train started and proceeded towards Vadodara. That second time train
stopped around 7:57 am and it was alleged that such chain pulling was a
part of conspiracy hatched at Aman Guest House situated nearby
Railway Station, where loose petrol purchased in 7 carboys of 20 liters
each was stored and loaded in tempi on the previous night and the
tempi was driven to the place of incident near A cabin where the train
had stopped. That unlawful assembly targeted the train and particularly
coach S/2, S/4, S/6 and S/7 by throwing burning rags, acid and patrol
bulbs and by using iron rods, swords, dharias, damaged windows of the
bogies and even caused injuries to some of the passengers of S/6 coach
consisting of 72 seats, but it was overcrowded than the capacity and
more than 170 passengers were travelling therein. When coach S/6 was
set on fire by conspirators by entering from the side of S/7 coach by
cutting the canvas vestibule and opening sliding door of S/6 by applying
force and set it on fire and ultimately fire engulfed the coach. The
passengers noticed smoke initially and ultimately those who could not
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injuries, or both and 59 persons died, 48 persons received serious and
grievous injuries and 48 persons could come out of coach, out of which 3
persons; one male and two female jumped from window of S/6 towards
onside viz. platform side on a heap of metal nearby A Cabin.
5 Volume37 PW228 Exh.1189 Page12612 Rajendraprasad
Raghunathrao Jadav, Engine Driver of Sabarmati Express, who also
lodged complaint Exh.1190 referred in his testimonies about the incident
and entries in the Driver Book and paras 11, 15, 19 and 22 of
testimonies are important. However, vital omissions appeared, when
testimonies of this PW is appreciated at page 12622 to 12625.
6 Volume33 PW131 Exh.760 page11452 Mukesh Raghuvir
Pachori, Assistant Driver of Sabarmati Express, who narrated about the
incident, first chain pulling, where no untoward incident according to
him had taken place and along with Satyanarayan Pachuram Varma
PW135 Exh.777 Guard of the train reset the chain pulling and the train
started. Here also, omissions appears. A reference is made to exhaust
pipe malfunction and second chain pulling was doubted in view of his
belief or impression that it may be due to failure of hose pipe.
7 Volume34 PW135 Exh.777 Page11475 Satyanarayan
Pachuram Verma, Guard of the train. According to him Sabarmati
Express contained 18 coaches and S/1 to S/10 were reserved and 6
coaches were general and 2 contained luggage, etc. A reference is made
to Guard Book at Exh.778 about stone pelting, fall of vacuum and setting
S/6 on fire. Page 11484 to 11487 contain testimonies of Guard.
8 Volume34 PW136 Exh.780 Page11488 Sajjanlal Mohanlal
Ranivala TTE of Sabarmati Express deposed about arrival, departure andPage 91 of 988
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first chain pulling at platform No.1 at Godhra Railway Station and about
second stoppage nearby A cabin. Paras 11 and 12 of his testimonies
referred to Zero vacuum.
9 Volume33 PW126 Exh.742 page11384 Mr. Harimohan
Fulsinh Meena, Assistant Station Master. At the time of incident he was
with the Deputy Station Superintendent Mr. Saiyed. This PW referred to
arrival of train at 7:42 am, departure by 7:48 am and first chain pulling
within a minute thereafter and second chain pulling around 7:58 am.
10 Exh.743 charge book referred to beginning of second phase
of stone pelting.
11 Volume33 PW127 Exh.744 page11391 Rajendraprasad
Misrilal Meena, Assistant Station Master `A’ cabin. He referred to arrival
of train at 7:43 am and 7:45 first departure and within one or two
minutes first ACP had taken place and after reset the train started
around 7:55 am and second chain pulling at 8:00 am, when S/6 had
crossed A cabin. Exh.745 is M.R.No.33/09 Article 7 is A cabin Book to
which reference is made to para 9 of the testimony that the train had
stopped nearby poll No.468/39 at para 11 and 12.
12 PW128 Exh.748 page11399 Akhilkumar Guljarilal
Sharma. According to him, timings of the train for arrival at 7:43, first
departure around 7:45 am, first ACP at 7:48 am, train restart around
7:53 am, and second ACP soon thereafter. Relevant paras 5, 6 and 7.
13 According to Mr. A.D.Shah, learned counsel, none of the
above employees had seen the mob carrying carboy of petrol.
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14 PW111 Exh.712 Page11287 Fatehsinh Dabhsinh Solanki,
Pointsman of Railway. In para3, this witness stated that according to
him coach S/6 passed A cabin and guard coach reached near Nallah.
15 It is stated that no statement was recorded of Mr. Saiyed,
Assistant Superintendent of Station and Mr. Katija, Superintendent of
Station at Godhra.
16 Exh.919 – distance from Ali Masjid to A cabin is 810 ft and
750 meters from Aman Guest House to Ali Masjid.
17 Volume36 PW185 Exh.917 page12114 Janak Upendra
Popat, Junior Engineer of Railways. He prepared map at Exh.918 to give
a broad idea about Godhra Railway Station and its surroundings.
According to him, distance from end of platform No.1 to A cabin is about
900 to 1000 feet and para 14 last 5 lines of testimonies may be seen.
PART IIIB
EVIDENCE OF PANCH WITNESSES OF SCENE OF OFFENCE
1 Volume 27 PW1 Exh.84 page9771 Sureshbhai Dhanamal
Mariyani. The panchnama was prepared on 27.02.2002 between 13:00
to 15:00 pm. Certain questions were asked to impeach credibility of this
witness. Page No.9778 is about description of the incident including
police chowki No.7 situated at railway station and A cabin contain glass
windows or not. This very witness referred to A cabin Poll No.468/33
and 3 carboys of white and black colours of 10 liters each wherein
findings of acid, kerosene, bricks, glasses, stones, plastic bottles, etc.
Page 9785 and 9789 may be considered and scrutinize closely.
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2 Exh.86 page9790 – panchnama of S/6 coach where 38
samples were collected. It was drawn on 28.02.2002 between 5:45 pm
to 7:45 pm which contain four doors and 9 compartments and 3 steps.
On 28.02.2002 FSL officers were present. No unburnt luggage was seen
nor any reference was made about dead bodies and no notice was made
that which portion of compartment was heavily damaged and
compartment Nos.1 to 4 were damaged much in comparison to
compartment Nos.5 to 9 which were heavily damaged / burnt.
3 Volume34 PW138 Exh.783 page11507 Gulabsinh
Laxmanshin Tadvi, Clerk at platform No.1.
4 PW153 Exh.822 page11737 Rajubhai Laljibhai Rathod,
Pointsman.
PART IIIC
PASSENGERS TRAVELLING IN SABARMATI EXPRESS
Particularly in coach S/6.
1 Volume32 PW81 Exh.625 Page11084 Pujaben B.
Kushwah. When the incident took place she was aged 13 years and
travelling on seat Nos.4, 5 and 6. This witness in her further statement
recorded on 11.07.2002 mentioned about tearing of vestibule between
S/5 and S/6 by his father and that made their escape good. According to
learned counsel for the defence, this statement is relevant and made in
view of recording of statement of Ajay Baria under Section 164 of the
Code on 09.07.2002. Paras 9, 10, 11 are omissions and para 13 aboutPage 94 of 988
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throwing petrol like substance may be considered accordingly.
2 Volume32 PW77 Exh.614 page11059 Rajendra
Ramfersingh Rajput, a passenger travelling on seat Nos.62, 63 and 64 in
S/6 boarded from Lucknow did not mention about fire inside the coach.
3 Volume32 PW78 Exh.615 page11066 Raju Krupashankar
Pandey. He was travelling in seat No.45 from Kanpur. His statement is
recorded so as to support prosecution case that fire took place from rear
side of S/6.
4 Likewise, other passengers being PW79 Exh.619 page
11070 Amarkumar J. Tiwari, travelling on seat Nos.17, 18 and 20 [paras
7, 9 and 10 of testimonies to be considered].
5 Volume32 PW80 Exh.621 page11078 Gyanprasad
Lallanprasad Chorasiya. At that time he was 13 years old, father and
mother sustained burn injuries and his nephew and son of sister died.
He was travelling on seat Nos.8 and 72.
6 Volume32 PW82 Exh.627 page11092 Veerpal Chandilal
Pal. He is sergeant and ExAir force employee travelling in S/6 and seat
Nos.58, 59 and 61.
7 That testimonies of the above witnesses according to Mr.
A.D.Shah are very important which reveal in para 4 that reserved seat
was occupied by unauthorized passengers viz. Kar Sevaks and though he
requested them to vacate the seat as his daughterinlaw was pregnant,
same was not acceded to by them. In para 5, he stated that he thought it
fit to get down at Jhansi, for making alternative arrangement to travel.
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In para 6, it is stated that Kar Sevaks were insisting not to purchase tea
from Muslim tea vendors at Godhra and in paras 7 to 9 narration of
events took place due to the conduct of kar sevaks and sudden reaction.
Para 10 it is stated that even TTE was also not allowed to perform his
duties and behaviour of kar sevaks was rude and inhuman. That, as a
measure of retaliation persons belonging to Muslim community lost their
temper and started pelting stones. However, till train started on second
occasion no stone pelting had taken place. Even kar sevaks were
shouting slogans against Muslim community [paras 12 and 17 some
contradictions appeared about smoke was noticed first and fire flames
later on] and para 19 about noise due to throwing of bottle of glass.
8 Volume33 PW89 Exh.648 page11147 Premaben
Ayodyaray Mali seat Nos. 25 to 29 in S/6 coach.
9 Volume29 PM notes of Shailendra 4½ years died Exh.407
p10460.
10 Reference is made of FSL page12519 and stone pelting
from platform side.
11 Volume33 PW90 Exh.650 page11151 Rubidevi Shriram,
13 years. At the time of incident she had reservation in S/6 and was
sitting near toilet on engine side.
12 PW86 Exh.638 page11130 Hariprasad Maniram Joshi, seat
Nos.41 and 44 in S/6. His other colleagues were travelilng in S/4, S/7
and S/8. According to this witness, burning cloth rags were thrown.
Initially wife of this PW had a quarrel with kar sevaks for occupying her
reserved seat. Unfortunately, she died.
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13 PM note of wife of this PW is at Exh.457 page10716
volume31. In para 9 this PW stated that he had not seen any person
moving towards S/5 or S/7.
14 Volume33 PW99 Exh.674 page11209 Prakash Hiralal
Taili having seat nos. 25 to 28 in S/7. According to this PW, door
between S/6 and S/7 was closed and he saw smoke first and then fire.
Likewise other PW 102 Exh.680 page11224 Rampal Jigilal Gupta also
travelled in S/7.
15 Volume33 PW103 Exh.681 page11231 Somnath Sitaram
Kahar travelling in S/7 on seat Nos.66 to 71. Para 9 may be considered.
16 Volume34 PW119 Exh.729 Punamkumari Sunilkumar
Tiwari travelling in S/6 seat Nos.18 to 21. According to her, burning rag
was thrown. Fatherinlaw and motherinlaw both died. In para5
some contradictions and omissions appeared.
17 It is submitted that whether entry from S/7 canvas
vestibules to S/6 is possible by cutting it with knife particularly when
canvas contained iron net?
18 None of the passengers, as above deposed having seen three
persons entering into S/6 by cutting open canvas vestibules of S/7 and
opening slide door of S/6 by applying force and pouring petrol from 3
carboys by any miscreant / conspirator.
19 Volume33 PW113 Exh.715 Radheyshyam Ramchandra
Mishra, Havaldar in Army travelilng in S/7 seat Nos.8 and 72, but whenPage 97 of 988
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the incident took place he was in S/6. A reference is made by another
PW170 Pravinkumar Amthabhai about this witness.
20 Mr. A.D.Shah, learned counsel also made reference to
passengers other than reserved category on the same line and they are
PW88 Exh.642 page11143 Shantibhai Shankarbhai Patel.
21 PW93 Exh.657 page11161 Shardaben.
22 Volume36 PW202 Exh.1024 Govindsinh Ratansinh Panda.
According to learned counsel Mr. A.D.Shah, this PW is travelling in S/6,
seat No.9 and referred to by another PW170 Pravinkumar Amthabhai
Patel and his testimonies paras 3, 4, 5, 7, 6 and 8 to be considered
whereby it is stated that doors and windows were closed. In para 12
there appears to be contradictions. According to him, he had smell of
burning of rubber and alighted from right side.
23 Volume37. A reference is made to PW216 Exh.1115 page
12428 Mohammad Imdad, seat Nos.17 and 20 in S/2.
24 Volume36 PW183 Exh.915 page12108 Sofiyabibi
Suleman Dhantya. When she was waiting on platform No.1 she was
molested by kar sevaks and PW184 Exh.916 page13111 Jaitunbibi Siraj
Ahmed, mother of Sofiyaben PW183 in her testimony deposes about
misbehaviour and molestation of her daughter and manhandling of tea
vendors belonging to Muslim community which resulted into some stone
pelting etc.25 Volume27 contain Exh.855, scene of offence panchnama
and page 9786 and 9787 referred to Pole No.468/3536, lying of 3Page 98 of 988
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carboys, one white and two black each having capacity of 10 liters
liquid.
26 Volume37 PW227 Exh.1161 page12546 Dipakkumar
Bhagwandas Talati, Assistant Director FSL. Samples were collected on
27.02.2002, however, no official of FSL visited the place. Learned
counsel highlighted importance of this PW for the purpose of linking
with scene of offence panchnama as alleged by prosecution.
27 Two sealed carboys Mark1 acid HCL, mark2 kerosene
hydrocarbon. Paras 8, 10, 11 and 12 to be considered. FSL report dated
20.03.2002 Vol. 37 page 12558 about recovery of 2 carboys from
arrested persons, pages 12559 and 12563 it was forwarded to FSL.
Mark 24/1, 24/2 and 24/3, 3 carboys recovered from scene of offence.
Marks 25 and 26 are bottle and sand page12571 Exh.1173 report of FSL
dated 20.03.2002. Item Nos.15, 16 and 17 i.e. 24/1, 24/2, 24/3 first
two items petrol was found and in third hydrocarbon was found.
28 Page12576 analysis of bottles contained petrol,
hydrocarbon, and acid. Page12586, 11 samples – page 12590 opinion /
analysis `no definite opinion’.
29 Exh.1178 page 12591 and 12599 dated 04.05.2002 page
12602 dated 17.05.2002.
30 Page12605 for item Nos.1 and 2. No petrol
31 Page12606 clothes of injured [none of remnants of bodies
of dead was sent for FSL and no panchnama was drawn on 27.02.2002.
Delay in collecting and dispatching samples is vital to the case of thePage 99 of 988
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prosecution and conspiracy of 7 carboys of capacity of 20 liters of liquid,
each, is not supported.
32 Volume34 PW151 Exh.184 page11665 Dipakbhai
Nagindas Soni. A local resident of Godhra and trader and activist of
VHP, who had gone to receive and offer tea / snacks to kar sevaks.
According to this Panch Witness, a violent mob resorted to heavy stone
pelting and in his chiefexamination he further stated that inflammable
material was sprinkled and by usage of weapons assault was made. This
PW named and identified 4 accused. In para 1 to 14 credibility of this
witness impeached by suggesting his political background, criminal
record, including involvement in a murder case. Paras 15, 16 and 19
crossexamination about his presence on other side of cabin. Paras 23,
25, 28 , 31, 32, 33, 37 to 42 and 44 are to be considered. Likewise other
PWs are also referred.
33 Volume35 PW159 Exh.834 page11813 Rajeshbhai
Vithalbhai Darji. A local resident and trader, who was present to offer
refreshment to kar sevaks at platform No.1, Godhra Railway station.
Later on he was standing nearby A cabin [paras 5, 10, 15, 18, 24 with
contradictions in para 32 may be considered]. Para 33 about sting
operation which is not placed on record.
34 Volume35 PW167 Exh.11934 Harsukhlal Tejandas Advani.
35 PW172 Exh.878 page12026 Nitinkumar @Kukulkumar
Hariprasad Pathak, both are VHP members and Volume34 PW149
Exh.810 page11644 is deposition of Janakbhai Kantibhai Dave. PW154
Exh.823 page11743 Chandrashankar Narhuram Soniya. PW155
Exh.825 page11757 Manoj Hiralal Advani, all are VHP workers andPage 100 of 988
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from Volume36 PW203 Exh.1040 page12284 Dilipsinh Ujamsinh
Dasadiya. PW208 Exh.1067 page12335 Murlidhar Rochiram
Mulchandani. Some of these PWs were nearby S/6 coach and had seen
accused carrying six carboys sprinkling inflammable material and
pouring through 3 windows viz. toilet and door nearby Compartment
No.9.
PART IIID
FIRE BRIGADE EMPLOYEES
1 Volume34 PW156 page11777 Pradipsinh Bholasinh
Thakor, driver referred to Bilal, who stopped fire brigade vehicle and
instigated the mob. Paras 16, 20 and 24 are contradictions. Ex.1880
page14604 – Occurrence Book may be seen and page 11784 mark
826/1.
2 Volume33 PW133 Exh.766 page 11458 Rupsinh
Chhaganbhai. PW129 Exh.755 page 11408 Kanubhai Chhaganbhai
Varia. PW130 Exh.757 page11425 Vijaykumar Ramchandra Sharma.
PW165 Exh.855 page11903 Sureshgiri Mohangiri G.3 Volume38 PW240 Exh.1347 Mohinder Dahiya, Deputy
Director, FSL, Gandhinagar, who visited the place on 01.05.2002
between 10:30 a.m to 4:30 pm and prepared rough notes Exh.1362 and
submitted report on 17.05.2002 page13002 to 13004 Exh.1349 and
1350. That testimonies in paras 10, 11, 12, 20, 22, 25, 26, 27 and 28 be
considered. According to this witness when the incident took place, all
windows of bogies were closed. The effect of fire was not seen below
windows more particularly in S/6. Fire marks were not seen belowPage 101 of 988
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windows outside coach S/6. That possibility of throwing inflammable
liquid from outside was ruled out. [even another report was submitted
on 02.09.2004 Exh.1354]. No report is submitted about short circuit,
but possibility was ruled out upon oral discussion with other officers of
FSL. Canvas vestibules containing thin wire coating cannot be cut by
knife. S/7 vestibule was observed.
4 Exh.1353 page13008 dated 25.08.2004 letter dated
12.06.2002 page 13010 for clarification of certain issues.
5 Page13012 dated 02.09.2004 reply by FSL, Gandhinagar.
6 Page13015 letter dated 24.10.2008 by SIT, Gandhinagar to
provide clear opinion on S/6 that 21 different issues / queries.
7 Page13017 dated 07.11.2008 reply to above 21 queries is
given by FSL, Gandhinagar, to which reference will be made in the later
part of the judgment. The above queries were raised by the
Investigating Officer after SIT came to be constituted and according to
learned Senior Advocate Mr. A.D.Shah, answers given to queries by the
experts are only with a view to fill up the gap or loopholes in the
investigation and do not lead to any conclusion about setting the coach
on fire by the accused.
PART IIIE
EVIDENCE OF POLICE PERSONNEL
1 Volume34 PW140 Exh.786 Page11532 Pujabhai B.
Patanvadia, Head Constable, Railway Police, GRP [para11 of hisPage 102 of 988
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testimony states about Noel Parmar taking over investigation in July,
2002]. Paras 19, 24, 26, 30 and 31 may be considered.
2 Volume35 PW136 Exh.852 P11887 Chhatrasinh
Gambhirsinh Chauhan, ASI, at GRP. Paras 2 and 3 he states that he
identified Junaid with carboy containing kerosene, Firoz with Gupti and
Siddik Bakkar. In para 4 he admits complaint of Siddik Bakkar about
misbehaviour of kar sevaks. Para6 is about first instant of pelting stones
etc. by a mob of more than 50 to 60 persons [paras 9 and 14 may be
considered].
3 Volume37 PW230 Exh.1196 Page12634 – Mohabbatsinh
Juvansinh Zala [paras 3 and 4 about complaint of Engine Driver –
Rajendra Jadav is mentioned]. Paras 8, 9, 10, 16 to 20, 23, 31 to 36
may be considered. With regard to this PW, it is submitted that though
accused were apprehended, they were not named in the complaint
which was lodged after the incident. That later on when violent mob
attacked passengers, miscreants were apprehended and around 11:00
am. Another FIR No.10/2009 was filed. No weapon was seized, no case
diary was maintained. On the same day viz. 27.02.2002, 41 persons
were arrested during combing operation, nowhere it is mentioned till
28.02.2002 about persons, who were arrested and no material /
evidence was recorded. Nothing is mentioned in panchnama and record
was concocted later on. Paras 38, 43, 48 to 53 and 62, 66, 67 and 68
may be considered.
4 Mr. George, PSI of RPF was available, but was not examined
as a witness.
5 Volume38 PW238 Exh.1262 page12876 Bhaskar Simpi,
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Dy.S.P., who was incharge SP at Vadodara and upon receiving message
started around 9:30 am and reached at 11:00 am at Godhra. Paras 5, 6,
and 8 about presence of Range IG, Vadodara, DSP, District Collector is
admitted. He was also not aware about sliding door of S/6 and no
knowledge about it. Paras 9 and 12 may be considered.
6 Volume38 PW242 Exh.13089 Raju B. Bhargav, DSP,
Godhra. Paras 3, 4, 6, 10, 11, 12 to 31 may be considered. This witness
was on Railway Platform between 8:15 to 8:31 and reached in his
official vehicle and passed through police Chowki No.7 Signal Falia and
saw Kalota and Bilal and asked Kalota to take Bilal away. He has not
seen any person rounded up or cordoned off. In para 13 it is stated that
he had seen on offside as well as Kalota and Bilal. There are other 4
witnesses including PW189 Exh.941 page12138.
7 Volume36 189 941 Firozbhai Ibrahim Posti, a tea vendor
and panch of recovery of carboy on 04.09.2002 viz. 7 black coloured
each of 10 liters and six small one liter each.
8 Volume36 PW206 Exh.1060 page12308 Bhikhabhai
Harman Baria, hawker at Railway Station paras 2 and 3 TI parade and
knew one Kadir Patangi. His statement is dated 25.07.2002. His
identity is kept in a sealed cover. Paras 6, 7, 8, 12, 20 and 23 may be
considered.
9 Volume36 PW205 Exh.1047 page12305 Shardulsinh
Balchand Gajjar, photographer and photographs are produced at
Exh.912. Paras 3, 4 and 5 may be considered. This witness has deposed
in his cross about sting operation, which was not reexamined by public
prosecutor.
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10 Volume36 PW190 Exh.952 Vinodbhai Ganpatbhai
Chauhan, a hawker on platform No.2. [This witness is also referred to
by Mr. Syed, learned counsel with regard to purchase of milk from shop
of Razak Kurkur, who is present there. Later on Razak Kurkur ran
towards A cabin.
PART IIIF
WITNESSES ABOUT EVIDENCE OF CONSPIRACY AT KALA PETROL
PUMP1 Volume37 PW224 Exh.1139 page12488 Ranjitbhai
Jodhabhai Patel. Para3 is about first statement recorded on
10.04.2002, second statement was recorded on 23.02.2003, under
Section 164 of the Code, 3rd statement was recorded on 11.03.2003.
Para4 about TI parade. Three out of four accused were identified
incorrectly. Paras 4, 5, 6, 7, 10, 16, 17, 18 and 21 of his testimonies
may be considered.
2 Volume37 PW231 Exh.12206 Prabhatsinh Gulabsinh Patel,
an employee of Kala Petrol Pump. Razak Kurkur was not identified.
Para 23 other two employees viz. Gopal and Mohan, incharge of
delivery of diesel were inquired, but were not examined. Paras 27, 36
and 37 it is stated that he knew accused before TI Parade.
3 Summary of both these witnesses viz. Ranjit and Prabhat
recorded on 10.04.2002 state about correctness of their statements made
before police, as above. Even Ismail Majid PW13 also referred to the
statement of both the above witnesses in his testimony that no loosePage 105 of 988
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petrol was sold on 26th and 27th February, 2002.
4 On 23.02.2003 what is stated before learned Magistrate
under Section 164 of the Code is to be believed than earlier statement
dated 10.04.2002 is to be discarded and if that statement under Section
164 of the Code dated 23.02.2003 is correct, prosecution failed to
explain earlier statement dated 10.04.2002. There is a gap of one year
and statement before learned Magistrate under Section 164 of the Code
was recorded after statement of Jabir Behra was recorded on
05.02.2003. In a sting operation, whereby, Ranjit had stated before TV
reporter that he was given Rs.60,000/ by Neol Parmar, I.O. to state
about alleged incident in a particular manner in his testimonies before
the trial court. It is stated that he was paid Rs.2,000/ by TV reporter
and on a false promise that a character will be offered in a story or
drama. According to the learned counsel for defence the above witness is
wholly unreasonable and further he knew almost all accused. However,
Razak Kurkur was not identified before the court. Both the witnesses
identified a wrong person and, therefore, foundation of conspiracy
collapses. Both the above witnesses are pliable and not inspiring
confidence.
5 PW232 and PW234 Ilyas Hussain Mulla and Anwar Abdul
Sattar Kalandar turned hostile. One of the defence counsels submitted
that even statement of Ilyas was recorded after statement of Pujabhai
one of the passengers, who survived.
6 Volume38 PW236 Exh.1231 page12782 Ajay Kanu
Bariya, a hawker of platform and one of the main accused of prosecution
for Section 120B. Paras 3 and 4 are about Kar Sevaks shouting slogans
and beating one Siddiq Bakkar and Mehbub Latika. That is first part ofPage 106 of 988
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incident para5 about first chain pulling, carboys were loaded in a tempi.
Para6 again by accused persons viz. pouring of petrol in S/6 from
carboys. Para7 about his statement dated 09.07.2002 under Section
164 of the Code before Railway Magistrate. Para8 about TI Parade
before the Executive Magistrate, 16 persons were identified. Paras 13,
14 and 15 about statement before Magistrate dated 09.07.2002 under
Section 164 of the Code and subsequent statement is dated 03.08.2002.
Paras 31, 32, 35, 38 and 39 may be considered. Before recording his
statement by learned Magistrate, statements were recorded on 4th July
and 5th July, 2002 before police and nothing appears on record about 2nd
and 3rd July statements made by this witness before the police. Paras 41
and 42 in crossexamination it is stated that witness is assured by police
of no harassment and that he would not be joined as an accused. Para
46 he states that he is operating a tea stall at Kuber Bhavan, Vadodara
where the office of DSP, Railway is situated. Paras 47 and 48 statement
is made before SIT on 24.10.2008 paras 61, 63 and 66 about location of
S/6 and S/7. Para77 reveal power of imagination of this witness. Paras
83 to 89 about opening of door of S/6. It is submitted that in his
testimonies as above major contradictions appear.
7 Volume38 PW237 Exh.1252 page12845 Sikandar
Mohammad Shaikh. He was a hawker at Railway Station in 2002. He
was standing alone on a metal heap while Ajay Bariya he had not
noticed Sikandar. This witness also failed to identify Razak Kurkur. His
earlier statement was recorded on 21.09.2003 and paras 21 to 25 correct
facts were not stated and one Maulvi Yakub Pinjabi was abroad, but his
presence was shown. Paras 49 to 52 may be considered.
8 Volume39 PW246 Exh.1467 page13307 R.K.Parmar,
Chief Judicial Magistrate, Godhra, who recorded statement underPage 107 of 988
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Section 164 of Jabir Behra on 05.02.2003. Paras 3, 4, 9 to 10 may be
considered with regard to PSI S.B.Patel. In addition to above paras 11,
14, 24, 49, 50 may also be seen.
9 Volume36 PW207 Exh.1063 page12323 Ambalal
Ranchodlal Patel, Railway Judicial Magistrate, Godhra about recording
statement of Ajay Bariya under Section 164 on 09.07.2002 while
camping at Anand. On 26.07.2002 recording of statement of Anwar
Kalandar while camping at Dakor and on 07.08.2002 statement of Ilyas
Mulla was recorded while camping at Dahod. Paras 6 and 8 of
testimonies be considered.
10 Volume38 PW235 page12764 Exh.1225 Mehboobbaig
Usmanbaig Mirza PI, Western Railway upon receiving message around
9:15 am on 27.02.2015 reached at Godhra around 11:15 am. Paras 2
and 3 in inquest panchnama 57 bodies were recovered. Timings 1:15 pm
to 6:45 pm.11 Volume 38 PW241 Ex.1366 page13029 Kantipuri
Chhaganpuri Bawa Dy.S.P., who took over the investigation from
B.R.Shimpi, Dy.S.P. on 01.03.2002. In paras 3, 4 and 5 reference is
made to collect samples of earth and recovery of weapons used by Yusuf
Kazi and 14 others Exh.1036. In para 7 it is stated that he obtained
remand of 30 accused. Reference is made to Medical Officer of Civil
Hospital, Godhra along with 47 PM notes. Paras 9 to 15 about recovery
of muddamal including carboys Exh.1372. Para 16 about window rods.
In para 17 reference is made to PW202 Govindsinh Ratansinh Panda.
page 13037 to 13041 is about proved contradictions. In paras 28 to 30 a
mention is made about case papers and not case diary. In paras 29 and
30, it is admitted that in between 01.03.2002 to 30.04.2002, no FSL wasPage 108 of 988
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carried out and a joint decision was taken on 01.05.2002 to call for FSL.
Para 30 he referred to handing over investigation. Paras 34, 36, 37, 39
and 39 certain question are answered about affidavit filed by
investigating officer in High Court and noticing tempi GJ6U8074 used
for alleged crime. Additional statements were recorded on 08.03.2002
but no mention was made about tempi. Para 39 is about two witnesses
Ranjit and Prabhat of Kalabhai Petrol Pump employees. Para 44 first
charge sheet dated 22.05.2002 was filed. Para 47 is about FIR
No.9/2002 against 30 accused and FIR No.10/2002 against 11 accused.
In para 50 notes available up to 01.04.2002 with the above PW on
02.03.2002 statement of witnesses were recorded. Paras 76 to 88
contradictions are proved. In para 94 he states that on 01.03.2002 he
visited scene of offence and Section 27 panchnama was drawn as stated
in para 94. Para 98 is about burning of sliding doors of S/5 and S/7.
However, video cassettes were not produced. In para 100, the above
witnesses are not clear whether inflammable material was poured. In
para 108 no statement about corridor between S/6 and S/7 that door
was broken nor any inflammable liquid was poured.
12 Volume38 PW243 Exh.1393 page13111 Suryakant B.
Patel PSI. Paras 4 and 5, it is about gold ring and para 7 identification.
Para 9 cross and relevant at page13115 and 13116. Para 12 statement
of Sikandar, aged about 19 years recorded on 21.09.2003 and
22.09.2003. A reference is made about charge sheet dated 22.05.2002
submitted by predecessor Investigating Officer against 54 accused. Para
15 is about statement recorded under Section 164 of Ranjit and
Prabhat. No case dairy and answered as not remembered and not
known. Para 16, 17 and 18 muddamal viz Rami was recovered.
Confessional statement of Jabir, Sikandar, Ranjit and Parbhat and
custody of accused to be obtained from jail authority in case of judicialPage 109 of 988
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custody. No inquiry by CJM about custody of accused.
13 Volume39 PW244 Exh.1406 page13129 Noel Parmar,
Dy.S.P., Railway, on 27.05.2002 took over the investigation from
K.C.Bawa and filed 17 supplementary charges. Report under Section
169 was also filed against 11 accused. In para 2 it is stated that
subordinate police employees were directed to complete lacuna and/or
defects. Paras 5 to 9 about PWs states about 36 accused, who were
accused. On 07.02.2002 he visited S/6 with FSL and superior officials
inquired about the nature of vestibule material and broken sliding door
of S/6 and S/7 and scratches in middle were found. A reference is made
to one Puja, daughter of Bahadur Kushwah and panchnama of tempi was
drawn. On 22.07.2002 he recorded statement of Gangaram, Carriage &
Wagon Department, Ahmedabad. On 03.08.2002 Ajay Baria identified
tempi and panchnama was prepared. Para 12, demo panchnama was
carried out on 18.09.2002, Exh.1014. Paras 16 to 25 – on 06.01.2003
Idrish Charkha was beaten by Salim Jarda and complaint was
registered. Lie Detection test of Razak Kurkur was carried out on
16.02.2002. Jabir Behra was arrested on 22.01.2003 and remand was
obtained. Judicial Magistrate, Dahod was approached for recording
statement under Section 164 on 29.01.2003, but was directed to give
again by a communication dated 03.02.2003 on 04.02.2003 at CJM,
Godhra. On 05.02.2003 a statement under Section 164 was recorded of
one Mehboob Chanda and Maulvi Umarji was arrested on 06.02.2003
and remand was obtained for 7 days. On 23.02.2003 employees of
Kalabhai Patrol Pump viz. Ranjit and Prabhat made statement and their
statements were recorded under Section 164 by CJM, Godhra. On
14.08.2003 Shaukat Patalia was arrested and statement of Sikandar was
recorded by S.B.Patel, PSI on 29.02.2003. On 11.06.2004 Yusuf Sattar
Zarda was arrested. Para 30, Bilal Badam was arrested on 02.11.2004.
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Para 32 on 02.03.2005 statement of Raju Bhargav, DSP, Panchmahal at
Godhra was recorded. Paras 38 to 48 contradictions are proved. Para
49 is with regard to extension and promotion after retirement from
31.08.2004 to 31.03.2009. He continued in service for 4½ years
beyond scheduled retirement. Paras 50, 51 and 52 onwards about visit
of FSL and superior officer on 02.07.2002, about Ajay Baria, who was
interrogated on 03.07.2002 and again made statement on 04.07.2002,
05.07.2002 and 03.08.2002. On 09.07.2002 statement of Ajay Baria
was recorded under section 164 of the Code. On 04.09.2002 carboys
were recovered from Razak Kurkur, but were not sent for FSL. In para
68 reference is made about Harun Abdul Hamid Dev and Harun Rahid
Abdul Majid Dev. A mention is made about fax message dated
18.05.2002, but not produced. Bilal Hazi was arrested by transfer
warrant and statement of Jabir Behra was recorded under Section 164
on 05.02.2003. Prayer to photography was done and Mr. S.B.Patel, PSI
has taken over custody of Central Jail Vadodara to CJM, Godhra. Para
74 is about Maulvi Umarji was incharge of Relief Camp at Godhra. It is
important to note that Mr. R.K.Parmar, CJM, Godhra, who states that
under Section 164 statement of Jabir was recorded and it was sent to
learned Additional Sessions Judge in a sealed cover page13313. Paras
74 and 75 about contradictory statements of Sikandar. That arrest
based on statement of Jabir with only motive and object to record his
statement and to arrest Maulvi Umarji. In paras 87 to 105 it is stated
that no case diary is made available. Statements of Ajay Baria were
recorded on 04.07.2002, 05.07.2002 and further statement was
recorded on 03.03.2003 about seizure of tempi on 16.07.2002. With
regard to question as to whether Ajay Baria was under police protection,
it was answered that he never remembered that it is the case of the
defence that Ajay Baria was under surveillance and statements of other
3 persons were recorded under section 174. In paras 101 to 105Page 111 of 988
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questions were asked about instructions of Maulvi Umarji to attack
coach S/6 only. Paras 107 to 147 pertaining to dummy persons. Seat
Nos.70, 71 and 72 general questions and earlier conclusions of Mr.
K.C.Bawa about setting S/6 on fire by sprinkling inflammable material.
14 Summary of submissions by Mr. A.D.Shah, learned counsel
for the defence is the manner in which statement of Ajay Baria was
recorded and conduct of investigating officer earlier on 2nd and 3rd July.
That, first time theory was introduced of pouring 140 liters of petrol in 7
carboys. The statement of Jabir Behra was recorded on 05.02.2003,
second statement of Ajay Baria was recorded. That Ajay Baria is not
connected with the incident dated 26.02.2002 of purchasing petrol from
Kalabhai Petrol Pump, but when incident of 27.02.2002 of carrying out
carboy from Aman Guest House to A cabin, it is emerging that
involvement of Maulvi Umarji after statement of Jabir Behra on
05.02.2003 and search and seizure was carried out at place of Maulvi
Umarji.
[a] Page12839 PW236 Exh.1232 is statement of Ajay Baria
under Section 164 recorded by JMFC [Railway at Anand] on
09.07.2002 by Railway Magistrate.
[b] on 07.08.2002 Iliyas Mulla PW232 whose statement was
recorded by Railway Magistrate, Dahod. PW234 Anwar Abdul
Sattar whose statement was recorded on 26.07.2002 by Railway
Magistrate, Dakor.
[c] Accused Jabir Behra page13334 on 05.02.2003 statement
under Section 164 was recorded by CJM, Godhra.
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[d] Statement of Ranjit and Prabhat were recorded on
11.03.2003 and 12.03.2003 by CJM, Godhra pursuant to order
passed by learned Additional Sessions Judge, statement of
Sikandar dated 22.09.2003 was recorded by CJM, Godhra under
Section 164 which is not found in paper book to supply separately.
15 Confessional statement under Section 164 of Code by
accused Jabir Behra is to be examined in the context of other material /
evidence available including statement of eye witness viz. passengers
and others under Section 164 of Ajay Baria about pouring of
inflammable material.
16 In 2008 SIT was constituted.
17 Volume39 PW245 Exh.1457 page13264 J.R.Mothliya, Dy.
S.P., SIT carried out further investigation pursuant to order dated
12.05.2008 passed by DGP, Gandhinagar pursuant to direction of the
Apex Court. In paras 1 and 2 the above witness referred to 103 accused,
who were arrested and apart from first charge sheet, 17 other
supplementary charge sheets were filed and 17 accused were
absconding. SIT was constituted by the Apex Court including the
Chairman and 3 other Senior Officers and 6 police personnel of
subordinate level. The above SIT was to undertake independent
investigation and free from recording statement of anyone connected
with the crime or not. Paras 8 to 24 may be seen including CD of sting
operation carried out by reporter was seen by him. Total 133 statements
were recorded and 61 were new statements.
18 About Section 164 statements, it is submitted that police
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statements and clause 34 of ChapterII of Criminal Manual was not
followed. Fear of videography was in the mind of accused, who was
under remand up to 30.01.2003. Narration about events of pouring
kerosene, 6 carboys, getting out of S/6 coach from offside did not get
any support from passengers of overcrowded train, including breaking
open the door outside. Samples of floor did not reveal hydrocarbon.
Scientific evidence did not support floor burning by pouring petrol.
19 Judgments reported in Bombay Blasts (2013)13 SCC 1 in
the case of Yakub Abdulrazak Meman is relied with regard to section
120A and B of IPC of conspiracy. About Section 164, reliance is placed
on (2011)2 SCC 490 in the case of Dara Singh. Paras 156 and 157 and
pages 209 and 217 of the judgment.
Reliance is also placed on the decision in the case of State of
Tamil Nadu through Superintendent of Police CBI/SIT, v. Nalini and
Ors. [AIR 1999 SC 2640(1)].
Mohd. Ayub Dar vs. Jammu and Kashmir reported in (2010)9 SCC
312 and 1999 Crl. Law Journal 3976(1) Jogender Nath vs. State of
Orissa and AIR 2001 SC 2503 and 1969(2) SCC 872 on Section 27 of the
Evidence Act.
20 Volume38 page12841, 12843, reference is made to the
conduct of Ajay Baria. That hawkers aged 19 and 20 years were picked
up and investigation is not fair, impartial and transparent. None of the
passengers of S/6 coach stated that door on onside was opened. Para 52
of Akshardham case was referred along with other decisions. AIR 1995
SC 980 Sivappa vs. State of Karnataka about duty of a Magistrate to rule
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not in the form, but in essence required to be followed and such
statement has to be voluntary, true and trustworthy. That detailed and
searching inquiry is to be made and not cryptic one. In para 29 after
quoting earlier decision, certain principles were culled out. Reference is
made to statutory provisions of Section 106(2)(3) about no police
custody and requirement of Section 281 of Code. It is stated that
initially CJM, Godhra was not willing to record statement of Ranjit and
Prabhat, but after obtaining directions from learned Additional Sessions
Judge such statements were recorded. A reference is made about the
conduct of Noel Parmar and his decision to drop names of both Harun
Abdul Dav and Harun Raashid Dav. Even while tempi was seized on
09.07.2002, no material emerged prior to that about use of tempi. Page
13198 Anwar Bhopa and Bhila Harman are made witnesses and not
accused about second chain pulling. Discrepancies in name of accused
Ismail Yusuf Changa and Ismail Abdul Majid Changi is admitted. That
Ismail Yusuf Changa is acquitted. During TI parade dummies were
hawkers at railway platform and known to those, who were to identify
and, therefore, TI parade is farce. Even false implications of other
accused is not ruled out. Pages13211 and 13212 about conspiracy
under Section 120A and reliance is placed on decision of Nalini [supra],
Yakub Memon [supra] and Ajmeri [supra]. About charge framed Exh.29
page 318 Volume1 nothing is specifically stated about criminal
conspiracy. Apart from conspiracy, unlawful object is not emerging.
Conspiracy has basis in confessional statement. First ACP and second
ACP not established and, therefore, cannot form basis for conspiracy.
That conspiracy was not dependent on incident which took place at
Railway Platform it is clear that RPF intervened when train started
before and after first chain pulling. That first chain pulling and stone
pelting are not part of conspiracy. That no knowledge that coach S/6
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and not S/6. That carrying carboy containing 160 liters of petrol in
tempi and one carboy in moped towards A cabin, usage of weapon for
assaulting passengers etc. are not established. PW190, Vinod Chauhan
states about presence of Razak Kuakur at his shop from whom he had
purchased milk. That meeting of mind is the must in conspiracy as held
in 2009(3) SCC (Cri.) 66 Baldev Singh vs. State of Punjab. Even by
implications or inference conspiracy is not proved.
21 JUDGMENTS RELIED ON BY MR.A.D.SHAH ON SECTION 164
In the context of statutory provisions and language of Section 164,
paras 33 and 34 of Criminal Manual provide procedure about recording
such statement. It is submitted that PW246 R.K.Parmar, CJM, Godhra
clearly mention about improper conduct of Neol Parmar on 29.01.2003
and Jabir Behra was under police influence and during remand his
videograph was done. It cannot be said that the statement was
voluntary, trustworthy and free from any influence. That without
interpretation, story is unfolded and, therefore, unbelievable. That
reliance is placed on the following judgments:
Section 281 of Code under Chapter XXXIII may also be seen.
PART IIIG
BRIEF SUMMARY OF EVIDENCE GIVEN BY LEARNED COUNSEL
MR.A.D.SHAH FOR THE DEFENCE1 What transpires on 27.2.2002 at Godhra Railway Station
Page
PW.228/Exh.1189 Rajendrarao Raghunathrao Jadav 12612Page 116 of 988
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Engine DriverComplainant
Exh.1190 F.I.R. 12624
PW.131/Exh.760 Mukesh Raghuvirprasad Panchori 11452
Asst. Driver
Exh. 761 Driver Book 11451PW.135/Exh.777 Satyanarayan Panchuram Verma 11475
PW.126/Exh.742 Harimohan Fulsing Meena 11384
Dy. Asst. Station Master
On duty at ‘A’ CabinPW.127/Exh.744 Rajendraprasad Misrilal Meena 11391
Asst.Station Master at Godhra
on duty at ‘A’ CabinPW.1376/Exh.780 Sajjanlal Mohanlal Raneval 11488
Sr. T.T.P.PW.111/Exh.712 Fatesinh Dhabsinh Solanki 11287
Point’sman at Railway YardPW.1/Exh.84 Sureshbhai Dhanamal 9771
Exh. 85 Panchnama_Scene of offence 9785
Exh. 86 Panchnama of Coach No. S6 9790PW.18/Exh.182 Arvindbhai Kantibhai Vaghela 9964
Exh.183 PanchnamaBurnt remnance
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PW.27/Exh.219 Bhupatbhai Motibhai Chauhan 10035
Exh.220 PanchnamaInspection of Coach
No.S6 by FSL. Officer in
respect to Sliding Door dt. 10040
11/7/200211.15 am. To 1.15pmPW.28/Exh.222 Babulal Lokumal Tolani 10043
Exh. 223 PanchnamaInspection of Coach
No. S7 and Coach No.S2
dt. 15.7.20026 pm. To 8.30 pm. 10046PW.205/Exh.1047 Shardul Bhalchandra Gajjar 12305
PW.230/Exh.1196 Mohabbatsinh Javansinh Zala 12643
P.S.I.PW.238/Exh.1262 Bhaskar Ramdas Simpi 12876
PW.242/Exh.1389 Raju Visankumar Bhargav 13098
D.S.P.2 Evidence of Witnesses as to abduction of Muslim Lady:
PW.183/Exh.915 Safiyaben Suleman P.12018
0. The witness was resident of Vadodara had come to Godhra on
23.3.2002 on festival of Id and had come to Godhra Railway
Station on 27.2.2002 for return journey to Vadodara.
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PW.184/Exh.916 Jetunbibi Siraj Ahmed P. 12111
Mother of Safiyaben
• She was also returning to Vadodara from Godhra and was at
Godhra Railway Station platform No.1.
3 Group of Passengers of Coach Nos. S6 and S7 :
Witnesses
PW.76/Exh.613 Hariram Shriramdev Chauhan P. 11053
PW.77/Exh.614 Rajendrasingh Rampersingh P. 11059
PW.78/Exh.613 Raju Krupashankar Pande P. 11066
PW.79/Exh.619 Amarkumar Jamnaprasad Tiwari P. 11070
PW.80/Exh.621 Gyanprakash Lalanprasad Chorasia P. 11078
PW.81/Exh.625 Pujaben Bahadursinh P. 11084
PW.82/Exh.627 Virpaul Chhedilal Pal P. 11092
PW.86/Exh.638 Hariprasad Maniram Joshi P. 11030
PW.99/Exh.674 Prakash Harilal Taili P. 11209
PW.102/Exh.680 Rampal Jigilal GuptaInsured P. 11224
PW.103/Exh.681 Somnath Sitaram Kahar P. 11231
PW.119/Exh.729 Punamkumari Sunilkumar Tiwari P. 11336Note: The evidence of these witnesses clearly indicate that
Coach No. S6 was occupied by more than 150 to 200 passengers
and movement was very difficult. On commencement of pelting
of stones, some of the passengers proceeded towards toilet area.
Some of the passengers saw throwing of burnt rags and fire on
seat and luggage in Coach No. S6 and they noticed heavy smoke
which resulted into burning sensation in eyes and breathing was
difficult which drove some of them to come out from the right side
door and thereafter they saw fire.
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The evidence of some of the passengers also revealed that through
they had reserved seats, they could not get their seats due to the
same being occupied by KarSevaks and they had to place their
suitcases and foodgrains bags near toilet area. They had closed
the doors between Coach Nos. S6 and S7 due to cold wind.
4 Witnesses belonging to Vishwa Hindu Parishad who had come to
serve tea and snacks to Karsevaks travelling from Ayodhya to
Ahmedabad in Sabarmati Express Train.
These witnesses deposed to have seen the throwing of inflammable
liquid from carboys by members of crowd on coaches of train.
[1] PW.149/Exh.810 Janakbhai Kantilal P. 11644
Some members of crowd running with carboys in their hand and
throwing liquid on train claims to have identified two persons by
name
[i] names Yakub Sattar Sakla and identifies Moulvi Hussain
Ibrahim Umarji.
[ii] names Idrish Ravan – identifies Idrish Yusuf Ismail.
However, does not identify any person from the crowd carrying
carboys and engaged in the act of throwing liquid on train.
[2] PW.151/Exh.818 Dipakkumar Nagindas P. 11665
Members of the crowed armed with weapons and carrying carboys
with inflammable liquidalso saw members of crowed throwing
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acid bulbs and throwing of liquid from the carboys on train.
First identified two persons and thereafter two more
[i] names Habib Karim and identified Abid Hussain Abdul
Karim;
[ii] names Mohammad Mushraf and identifies Saukat
Mohammad Kalanda;
[iii] names Hussain Abdul Sattar and identifies Hussain Abdul
Sattar;
[iv] names Mohammad Ibrahim and identifies Rafiq Ahmad
Salam
Note :(Para19) – This witness claims to have seen incident by
standing near area of Acabin crowd came from back of A Cabin
and proceeded 250 dt. towards Baroda – saw smoke from coach S
6.
[3] PW.154/Exh.823 Chandrashankar Nathuram P.11743
Crowd of 900 to 1000 persons rushing towards train with
weapons and carboys containing inflammable liquidalso saw
throwing liquid on train from carboys and igniting the same.
Identifies two persons
[i] names Ahmad Abdul Rahim and identifies Ahmad Abdul
Rahim;
[ii] names Asif alias Babu and identifies Idrish Yusuf Mafat
[4] PW.155/Exh.825 Manoj Hiralal Advani P.11757
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Members of crowd running with weapons and carboys containing
inflammable liquid and had also seen throwing of liquid on train
identifies two persons
[i] names Mohamad Abdul Samal and identifies Mohamad
Abdul Salim;
[ii] names Anwar Hussain Ahmed but could not identify.
[5] PW.159/Exh.834 Rajeshbhai Vitthalbhai Darji P. 11813
Members of crowd running with weapons and pelting of stones
and damaging windows and doors with pipes, sticks etc.
Thereafter, saw 56 persons coming with liquid in carboys and
throwing liquid on the train. Thereafter, saw throwing of burning
rags inside the train and those persons put the coach on fire.
Names of six persons and attributes act of pelting of stones and
inciting crowd by shouting slogans
[i] names Habib Bin Yamin Behra;
[ii] names Saukat Dagal and identifies Saukat Mohmad
Kalandar;
[iii] Harun Dao;
[iv] names Siraj Abdul Jasma who died during proceeding;
[v] Rafiq Mohamad Kalandar and identifies Rafiq Abdul Majid;
[vi] names Mehboob Ahmad Hasan with knife.
Identifies three persons :
[i] Siddiq Abdul Rahim Bakkar;
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[ii] Habib Bin Yamin Behra;
[iii] Mohamad Ansar Kutubuddin Ansari.
[6] PW.167/Exh.862 Harsukhlal Tejands Advani P.11934
Claims to be standing behind staircase of ‘A’ cabin and saw crowd
pelting stones and assaulting passengers with weapons also
claims to have seen some persons climbing steps near door of
coach and throwing liquid from carboys in coach also saw
persons standing on the ground attempting to ignite rags and
throwing the same in coach whereby coach caught fire. Claims to
identify three persons
[i] names Abdulgani Shamad Shaikh and identifies Farukh
Abdul Sattar Gaji;
[ii] names Abdul Rauf Ahmed Yamin and identifies Aayaman
Abdul Rauf Ahmadi;
[iii] names Jabir Abdul Kala and identifies Sabirkhan
Sultankhan.
[7] PW.172/Exh.878 Nitinkumar Hariprasad Pathak
P.12026
Noticed crowd of 900 to 1000 persons armed with weapons and
some carrying plastic carboys with liquid and putting train on fire.
Claims to identify two persons
[i] names Ibrahim Adam and identifies Ibrahim Adam
Dhantiya;
[ii] names Kofiwala and identifies Umargani Mohammad
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Ibrahim Kofiwala
[8] PW.203/Exh.1040Dilip Ujamshi Dasadiya P.12284
He has been treated hostile
[9] PW.208/Exh.1067Murlidhar Ruchiram P.12335
Mulchandani
Noticed crowd of 900 to 1000 persons, but had started pelting of
stones and also saw 5 to 6 persons having carboys in their hands
throwing inflammable liquid on coach and putting coach on fire.
Claims to have seen Bilal Haji throwing liquid on coach from
carboy.
Thus, some of the witnesses of Vishwa Hindu Parishad who had
gone to Godhra Railway Platform to greet KarSevaks and provide
snacks and tea had also gone near ‘A’ Cabin when train had
stopped second time. The coach S6 appears to be very near to ‘A’
cabin and all these witnesses have been persons carrying carboys
throwing liquid on train. However, except positive act attributed
to Bilal Haji by Murlidhar Mulchandani about the act of throwing
liquid on coach from carboys, no other witnesses have identified
the persons carrying carboys and throwing liquid on train. The
evidence of these witnesses also revealed that some members of
the crowd threw burning rags in coach from the ground.
Note : Thus, The eyewitness account of passengers and
witnesses belonging to Vishwa Hindu Parishad about the role
attributed to some of the members of the crowd carrying
inflammable liquid in carboys and throwing the same on train
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and also, as claimed by one witness, from door of the coach by
pouring from carboys is not substantiated by witness from FSL Mr.
Dahiya. Thus, the prosecution story appears to be taking turn
after 17.5.2002 and investigation being directed on the basis of
conclusion reached by Mr. Dahiya in his report on 17.5.2002 (Exh.
1350/P. 13004).
5 Evidence of F.S.L. Witnesses :
[1] PW.227/Exh.1161 Dipakkumar Bhagwatlal Talati P.12546
• This witness received forwarding letter (Exh.
1163/P.12554) in reference to two carboys. These two
carboys were examined by this witness.
• The FSL report prepared by the witness
(Exh.1166/P.12557) reveals presence of acid in one carboy
and presence of kerosene in another carboy.
• This witness received different articles vide forwarding
letter (Exh.1167/P.12559) the witness forwarded FSL
report in respect to 37 articles vide Exh. 1173/P.12571.
According to the report, articleMark 15 white carboy,
article Mark16black carboyBoth reveals presence of
petrol.
• ArticleMark 18 Plastic bottle reveals presence of acid
whereas the article Mark17 empty carboy reveals presence
of petroleum hydrocarbons. The other articles referred in
the report (on page – 12577) did not reveal presence of
petroleum hydrocarbons or acid.
• The witness thereafter further received forwarding letter
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dated 11.4.2002 (Exh. 1174/P. 12578) whereby different
samples of petrol, diesel obtained from petrol pump
(Hakimmiya Automobiles Petrol Pump and (H.M.&A. Patel
Petrol Pump). This letter also referred to the seizure of
three carboys (purporting to have been produced by the
accused), it contained kerosene.
• Exh. 1177 is the FSL report dated 23.4.2002 (P. 12586) and
conclusion is recorded in the said report (P.12590).
• This witness also received articles vide forwarding letter
dated 4.5.2002 (Exh. 1178/P.12591) which referred to 18
articles.
• The FSL report dated 17.5.2002 (Exh. 1181,. P. 12602)
describes different articles and conclusion on analysis (P.
12605) rulesout the presence of petroleum hydrocarbons
or remnants of plastic contained. However, one carboy
(ArticleMarkN) revealed presence of petrol hydrocarbons.
• This witness also received two articles vide forwarding
letter (Exh. 1182/P. 12606) recovered from injured
Lalanprasad Kishorilal Chorasiya on 7.5.2002. The FSL
report (Exh. 1185/P. 12609) revealed that both articles
were not having presence of petroleum hydrocarbons.
[2] The prosecution also relied on the evidence of
PW.240/Exh.1347 Mohindersingh Jegeram DahiyaP.12982
However, the prosecution has also adduced evidence of Mohinder
Singh J. Dahiya (PW.240/Exh.1347/P.12982). This witness
inspected Coach S6 on 1.5.2002 and submitted report on
17.05.2002. Exh. 1348rough Notes prepared at the time of
inspection on 1.5.2002, Exh. 1349/P.13002 is the Inspection
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Report based on rough notes dated 17.05.2002.
This witness also carriedout demonstration by arranging Coach at
a place of offence near ‘A’ cabin on 3.5.2002 and details report
with Sketch (Exh. 1350/P. 13004) was submitted on 17.5.2002.
Thus, Exh. 1350 totally rulesout the prosecution version about
throwing of inflammable liquid from outside the coach as well as
from the doors of the coach S6. The conclusion reached by the
witness Dr. M. J. Dahiya was suggesti8ve of pouring of
inflammable liquid from the Eastern side of door of the Coach S6
and in the passage near Seat No. 72 from the container having
broad opening.
• This witness received communication dated 25th August,
2004, from the office of the Deputy Superintendent of
Police (Exh. 1353/P.13008). This witness had also received
communication of Railway dated 12.06.2002 along with
Exh. 1353.
• The witness vide communication dated 2.9.2004 forwarded
his answer to different queries to the Dy. S.P. (Exh.1354/P.
13012).
• Thereafter, this witness received further communication
from the office of Special Investigation Team dated
24.10.2008 (Exh. 1355/P.13015).
• This witness vide parawise queries answered the queries
vide communication dated 7.11.2008 (Exh. 1356/P.13017)
along with Exh. 1357/P.13018). This communication refers
to answering of 22 queries.
• SIT vide Exh. 1355/P.13015 raised the Query No.6 which
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reads
“6. Whether the incident of fire in Coach was happened
due to shortcircuit ?”
The witness vide Exh. 1357 answeredP.13019 “No. FSL Team
examined this reason very thoroughly but there was no evidence
of shortcircuit. Secondly, the train was stationery at the time of
fire and when the train is stationery, it remains on battery only.”
The reference to para20 in crossexamination (P.12991) it is
clearly established that the witness had nothing in writing about
Officers of FSL examining CoachS6 from this aspect and in none
of the reports by any of the Officers of FSL it was revealed the
nonconsideration of shortcircuit during their examination. Thus,
the last report dated 2.9.2004 (Exh. 1354/P. 13012) there was no
reference of shortcircuit.
[3] The prosecution has also examined PW.225/Exh.1150
Mukesh Nandkishor Joshi – P.12519.
This witness had visited Godhra on 3.5.2002, 2.7.2002 and
11.7.2002. The witness had submitted report (Exh.1151/P/
12526 and Exh. 1152/Exh. 12527).
• This witness had also produced report (Exh. 1154/P.
12530) in respect of 12 parcels received from the I.O..
[4] The prosecution has also examined PW.226/Exh.1158
Satishchandra Ganpatram KhandelwalP. 12535.
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• This witness had gone to Godhra in company of M.J.Dahiya
on 11.7.2002.
• This witness has produced report of sliding door (Exh.
1159/P.12544) dated 20/7/2002.
PART IIIH
THEORY OF CONSPIRACY
[1] PW. 186/Exh.923Mustaq Ahmed Hussain P.12122
Mohammad GobhaHostile
• Statement on 22.2.2003 at Vadodara – Application dated
17.04.2008 to SIT (Exh.930) with affidavit in support.
• Statement before SIT on 26.6.2008.
[2] PW.189/Exh.941 Firozbhai Ibrahim PostiP.12148
Hostile
• Statement on 18.2.2003. He was panch witness to Panchnama
about the search at Aman Guest House on 4.9.2002 (Exh.942).
• Recovery of 7 Black carboys (10 Ltrs.) and Carboys6(2 Ltrs.)
• Application along with affidavit on 18.4.2002 to SIT (Exh.945
946).
• Statement before SIT on 26.6.2008.
[3] PW.196/Exh.978 Irfan Yakub Mitha – Hostile P.12180
• Statement recorded on 22.2.2003 about meeting on 26.2.2002 at
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Aman Guest House.
• Application dated 18.04.2008 to Sit (Exh.979) along with affidavit
(Exh. 980).
• Statement on 22.6.2008
[4] PW.232/Exh.1214Lliyas Hussain MullaHostile P.12709
• Statement dt. 2.8.2002 and statement under Sec. 164 before
JMFC, Railway Court on 7.8.2002.
• Affidavit before Benarjee Commission in the year 2004 (Exh.
1215).
• Mark1063/5 – Statement U/s 164 Cr.PC – P. 12763 dated
7.8.2002.
[5] PW.234/Exh.1220Anwar AbdulSattar Kalandar P.12743
• Statement on 24.7.2002
• Statement under Sec. 164 of Cr. P.C. 26.7.2002 before JMFC,
Railway, Godhra, Camp : Dakor )Exh. 1221/P.12755) (Exh. 1222
dated 26.7.2002)
• Preliminary questioning – P. 12759.
• PW206/Exh.1060 Bhikhabhai Harmanbhai Bariya P.12308
• This witness is Hawker and supports the prosecution case.
• Statement recorded on 25.7.2002 and refers to the incident which
took place on 27.2.022. Not connected with conspiracy theory on
night of 26.02.2015.
PART IIII
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WITNESSES RELATING TO CONFESSIONAL STATEMENT OF
JABIRBIN YAMIN BEHRA AND STATEMENTS OF WITNESSES
RECORDED UNDER SEC.164 CR.P.C.
[1] PW.207/Exh.1063 Ambalabhai Ranchhodbhai p.12323
PatelJMFC (Railway) Godhra
1. From June, 2002 to June 2004 recorded statements under Sec.164
of Cr.P.C.
[i] 9/7/2002recorded statement of Ajay Kanubhai Bariya
[ii] 26/7/2002recorded statement of Anwar Abdul Sattar
Kalandar
[iii] 7/8/2002recorded statement of Iliyas Hussain Mullla.
This witness recorded these statements under Sec.164 of Cr.P.C.,
without verifying the aspect about their status in the investigation
of crime and had not inquired about their position from I.O.
However, the witness admitted that after the chargesheet,
committal order came to be passed and in the that first charge
sheet all three were not shown as witnesses and all the three
witnesses had not gone to Godhra Railway Police Station for
giving statements. However, after first chargesheet and during
investigation their statements came to be recorded before the
Court Camping at Dahod, Anand and Dakor towns at a distance of
50 to 70 kms. after statements before the police.
−
[2] PW.246/Exh.1467 Rajnikant Khodidas Parmar p.13307
Chief Judicial Magistrate, Godhra
[I] Confessional Statement of accused Jabirabin Yamin Behra
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22/1/2003Accused Jabirabin Behra arrested.
23/1/2003 to 30/1/2003accused remanded to police custody
28.02.2003During custodial interrogation confessional statement,
videography was also done. (Evidence of PW.244/Eh.1406Noel
Waller ParmarP. 13129 and the aspect of videographyP.13180)
Sec.161 came to be amended by Act 5 of 2009 and the provision
for videography, statement came to be introduced w.e.f.
31./12.2009. Thus, on 28/01/2003 statutory provisions did not
provide for statement being recorded under videography.
29.01.2003Accused Jabir was taken to JMFC (Railway) for
recording confession and accused was handed over to judicial
custody. However, JMFC (Railway) refused to request for
recording confession on the legal ground that he had no
jurisdiction. Mr. Noel Parmar on same day submitted application
to CJM Parmar for recording confessional statement of Jabir Bin
Yamin Behra, which was fixed for order. The learned CJM had
inquired about the names of other Police Officers accompanying
I.O. Noel Parmar through his Court staff and name of PSI S.B.
Patel came to his knowledge.
03.02.2003the learned CJM, Parmar wrote yadi to Central
Prison, Vadodara to produce accused Jabir Bin Yamin Behra on
4/2/2003 at 11 AM before his Court at Godhra. This yadi
contained direction to handover custody to PSI S.B.Patel for
producing before Court of CJM.
04.02.2003PSI S.B. Patel obtained custody of accused Jabir Bin
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Yamin Behra from Central Prison, Vadodara and produced him
before the Court of CJM, Godhra. Preliminary interrogation was
conducted and time of 24 hours for reflection was given after
recording preliminary questions and answers. A Yadi was written
to Central Prison, Vadodara for producing accused before the
Court of CJM, Godhra. (Report Exh.1468/P.13334).
[i] This preliminary inquiry does not reflect the compliance of
Form No.35 under Rule34 of Criminal Manual. There is no
recording about Chief Judicial Magistrate informing accused
Jabirabin Yamin Behra that he was CJM and he was recording his
confession in that capacity.
[ii] There is no searching inquiry of his Police custody before
putting accused in judicial custody. There is no inquiry about his
custody from Central Prison, Vadodara to his production before
this Court by PSI, S.B. PatelMember of Investigation Team.
This inquiry was necessitated to verify whether the accused
was having any police influence during this custody.
Similarly, there is direction to send accused to Central
Prison, Vadodara with the custody of PSI S.B. Patel.
Note:Thus, the accused Jabirabin Yamin Behra though
coming to Court from Central Prison, Vadodara from
Judicial custody, he was in police custody of PSI S.B. Patel
who was Team Member of the Investigating Team.
[iii] Similarly, on 5/2/2003 this accused was brought from
Central Prison, Vadodara before the Court of CJM, Godhra, after
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24 hours time of reflection. Here again custody was obtained from
Central Prison, Vadodara by PSI S.B.Patel. Thus, the accused was
in custody of PSI PatelMember of Investigating Team and no
questioning about this custody of Police before recording
statement. Preliminary noting of examination on 4/2/2005 and
5/2/2005 does not reveal searching inquiry about influence of
police during this period.
[iv] Furthermore, there is no inquiry as to the purpose and
object of making confession on 4/2/2005 or 5/2/2005. Thus, the
noncompliance of Form No.35 and provisions of Sec.164 of
Cr.P.C. Clearly revealed that there is no sincere effort by CJM in
searching inquiry about the determination of voluntary nature of
the confessional statements. Thus, prima facie voluntary nature of
the confession is not established from the evidence of CJM.
[v] According to charge (Para12) accused Salim Haji Ibrahim
Badam alias Salim Panwala and the accused Abdul Razak
Mohammad Kurkur made three hawkers to board the running
train with instruction to stop the train by chainpooling near ‘A’
cabin and thereafter the accused Salim Panwala and the accused
Abdul Razzak Kurkur went on red colour M80 Moped with one
carboy containing petrol towards ‘A’ cabin.
However, according to confessional statement, after stone
pelting on train, the accused Saukat Lalu came and told to
follow him. Hasan Lalu, Mehboob Latika and accused
Jabirbin Yamin went behind Saukat Lalu and Saukat Lalu
entered the lane of Aman Guest House. There he saw
Razak, Iliyas Hussain and Mulla and Saukat Lalu had talked
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with them. Razak had given signal to them and Ajay Bariya
who was standing there was taken by Saukat by catching
hold of his hand to join and then they reached near the
place. At that time Razak Kurkur and Salim Panwala came
out from the room on back portion and at that time Imran
Sheru, Irfan Bhola and Saukat Lalu tookout carboys from
room of Razak and placed in tempi. Razak instructed to
take tempi behind ‘A’ cabin. Saukat Lalu abused Ajay Bariya
and took him in the tempi. When tempi was proceeding
towards Ali Masjid he saw on backside and notice that
Salim Panwala was driving M80 and Razak Kurkur was
sitting with carboy having face on opposite side.
Thus, according to confessional statement, Salim Panwala
and Razak Kurkur were at back portion of Aman Guest
House at the room of Razak Kurkur till loading of 7 carboys
in Tempi and Tempi being driven towards ‘A’ cabin in
pursuance to instruction of Razak Kurkur.
The charge (Page13) reveals that 9 persons ran from the
Platform and reached the lane behind Aman Guest House in
signal falia and they loaded 8 carboys of 20 Ltrs. Capacity of
petrol and after loading the same in tempi rickshaw No.GJ
6U8074 went via Ali Masjid near ‘A’ cabin.
The charge further reveals that those persons reached the
Sabarmati Express Train Coach No.S2 in furtherance of
common object carrying weapons and stated to break
windows glasses and tried to set fire to the coach from
outside. Thus, according to charge the accused Abdul Razak
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Kurkur and Salim Panwala thereafter reached Coach No.6
and poured the petrol from the carboy by climbing stairs of
the door of S6 towards Engine side in broken window on
the side of toilet and the accused Salim Panwala had helped
pouring of the petrol from the carboy by giving lift at the
bottom of the carboy. (Para15 of charge). However, though
the accused Jabirabin Yamin Behra has followed the
members of the alleged conspiracy and proceeded from the
side of S2 to S6 did not refer about this role played by
accused Salim Panwala and Razak Kurkur.
[vi] Similarly, the details of part played by different accused
near Coach no.S6 as emerging from confessional statement, it is
clearly emerging that after reaching near Coach S6, the carboys
were placed on the ground and the accused Mehboob Latika had
created holes by knife on carboys and thereafter cut the canvass
vestibules and had entered the place between Coach S6 and S7.
It is further claimed that sliding door between Coach S6 and S7
was closed and by kicks they broke open the door and thereafter
Saukat Lalu handedover two carboys. At that time the accused
Jabir was having knife in his hand which he threw on the ground
and took two carboys handedover by Saukat Lalu. Thereafter
Saukat Lalu also entered Coach S6 from the side of vestibules
area. Saukat Lalu opened the door of Coach S6 towards ‘A’ cabin
and from there the accused Imram Sheru, Rafiq Bhatuk and
Saukat Lalu came inside with petrol carboys.
It is further revealed in confessional statement that the
accused Hasan Lalu and the accused Irfan Pataliya were
throwing (sprinkling) petrol from the broken window from
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outside. At that time they got down from offside and
thereafter fire took place in the Coach S6. This is the part
of confession as to coach S6 being put in flame. However,
the confession does not reveal that place as to how S6 was
put fire. It is revealed further in the confessional statement
that on next day he learnt that the accused Hasan Lalu had
thrown burning rag in the compartment and thereafter they
had started running here and there.
26/02/2003 Additional Sessions Judge Mr. K.C.Kella by order
(Exh.1475) directed to CJM to record statements of witnesses
Ranjitsinh Jodhabhai Patel and Prabhatsinh Gulabsinh Patel under
Sec.164.
11/3/2003 The learned CJM, Godhra recorded statement of
Ranjitsinh Jodhabhai Patel (Exh.1470/P.13342).
12/3/2003The learned CJM recorded statement of Prabhatsinh
Gulabbhai Patel (Exh.1471/P.13345).
[3] PW.244/exh.1406 Noel Waller Parmar P.13129
Refers to arrest of Jabirbin Yamin BehraPara 16&17/Page13136;
Para63 & 64/Page 13173 Statements of Ajay and Sikandar
Para65/Page 13174Statement of Sikandar
Paras72&73/Page 13178 Cross examination on aspects of
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confessional statement of accused Jabirbin Yahim Behra.
Para131/Page 13220Letter (Exh.995) admittedly written by
Dy.S.P. Parmar to all Moulvis to produce persons involved and the
first name is that of Moulvi Hussain Umreji.
Para153/Page 13231Moulvi Yakub Punjabi of Ali Masjid and his
direction involvement by witness Sikandar Shaikh Dy.S.P. Parmar
during investigation convicted about wrong involvement of Moulvi
Yakub Punjabi in view of his absence in India on or about
27/2/2002. Yet, no further statement of Sikandar and no T.I.
Parade.
Para184/Page 13225No attempt to remove sliding door of
corridor and obtaining opinion of FSL.
Salient features emerging from crossexamination of Dy.S.P.
Noel Waller Parmar in respect of investigation:
[i] Para81/Page13184Involevment of Harun Ahmed Hamid
Dao upto supplementary chargesheet in col.2. Thereafter in 12
supplementary chargesheet name of Harun Rashid Abdul Majid
Dao and then report to drop names of both persons.
[ii] Para(83) 91/Page13190Learnt about use of Tempi and
instructed to seize Tempi for the first time on 9/7/2002.
[iii] Para102/Page13198Statement of Ranjitsinh and
Prabhatsinh on 22/2/2003 and U/s.164 of Cr.P.C. Thereafter.
[iv] Para105/Page13199Anwar Bhobha and Bhikha’s name
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revealed in chain pooling and not taken as accused.
[v] Para107/Page 13200 Dummy persons in majority T.I.
Parade were from hawkers working at Railway Platform.
[vi] Para110/Page13202Ismail Yusuf Changa or Ismail
Abdulmajid Chungino further steps.
[vii] Para127/Page13212Constitution of SIT (Special
Investigation Team) by Supreme Court pendency of Special
Criminal Application No.1706/2005 by Sharifabibi w/o Moulvi
Abdul Sattar Bhagaliya for wrongful confinement of Moulvi
Bhagaliya.
PART IIIJ
COUNTER BY THE LEARNED DEFENCE COUNSEL ON THEORY OF
CONSPIRACY AS EMPHASIZED BY PROSECUTION BASED ON
CIRCUMSTANTIAL EVIDENCE:
Conspiracy
[1] Prosecution emphasis on circumstantial evidence to infer
conspiracy.
[i] Huge crowd of 1000 to 1500 persons collected near Signal
Falia duly armed with dangerous weapons like swords, spears,
pipes, etc.[ii] The evidence of passengers also discloses use of
inflammable material and acid by members of the crowd.
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[iii] Exh.85Panchnama of Scene of offence corroborates the use
of inflammable material [Muddamal Articles1 to 21]. Some of
the articles revealed presence of petroleum hydrocarbons. Thus,
the articles1 to 21 supports evidence of victims – passengers.
[iv] The panchnama of S/6 [Exh.86] also referred to seizure of
Article22 to 34 and two more articles found on 03.03.2002.
Articles22 to 34 are forming part of debris collected from nine
compartments of S/6.
Thus, these circumstances established that from the very
beginning the investigation was on line of the use of inflammable
liquid. FSL report substantiates the claim of passengers and other
witnesses.
[v] Similarly, discovery panchnama of carboy on 17.04.2002,
sealing of two petrol pumps on 27.02.2002, statements of Ranjit
Jodha Patel and Prabhatsinh Patel revealed sale of huge quantity
of petrol on 26.02.2002 in 7 carboys of 20 liters capacity.
[vi] Heavy damage in compartments 5 to 9 of S/6 reflect the
huge quantity of petrol.
[vii] Evidence of Ajay Kanubhai Baria reveals carrying carboys of
petrol in tempi from Aman Guest House to the back of `A’ cabin
near Masjid and removal of carboys from tempi to the place near
`A’ cabin where train has stopped.
[viii] His evidence coupled with evidence of Sikander reveals
cutting of vestibules of S/7 and forceful opening of sliding door ofPage 140 of 988
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S/6 and thereafter three accused entering coach S/6 from the area
near toilet after seat No.72 and opening the onside door.
[ix] His evidence further reveals entry of two other accused
persons with carboys and pouring of huge quantity of petrol in the
coach S/6.
[x] His evidence further discloses one accused pouring petrol
from the window and thereafter throwing of burning rags inside
the coach.
From these circumstances the prosecution wants to infer
conspiracy hatched by the accused.
[2] The prosecution evidence about meeting of some of the accused
on the night of 26.02.2002 and purchase of petrol of huge quantity is
based on confessional statement of accused Jabir [Exh.1469 page
13335] and two accused persons viz. Ranjitsinh Jodhabhai Patel
[Exh.1470 – statement u/s. 164 recorded on 11.03.2003] and
Prabhatsing Gulabsing Patel [Exh.1471 statement u/s.164 recorded on
12.03.2003]. Both these witnesses in their earlier statements recorded
on 10.04.2002 did not accept the prosecution case of selling loose petrol
on the night of 26.02.2002.
Thus, the confessional statement of accused Jabir Bin Yamin Behra
[Exh.1469 recorded on 05.02.2003] is the only evidence of the meeting
alleged to have been held on night of 26.02.2002 at Aman Guest House.
[3] Thus, except retracted confessional statement of accused Jabir
Biryamin Behra, which prima facie does not appear to be voluntary and
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hence inadmissible, then there is no evidence of meeting of minds prior
to the arrival of Sabarmati Express Train at Godhra Railway Station at
about 7:43 am.
[i] No prosecution evidence to show that any of the
conspirators, as alleged, to be present on night of 26.02.2002
were at Railway Station, at the time of arrival of train at Godhra
Railway Station.
[ii] Similarly, no movement till departure of train at 7:48 am
from Godhra Railway Station, when chain pulling took place in 3
or 4 coaches in view of some passengers could not board the train.
[iii] An event of misbehaviour with hawker at railway station as
well as misconduct with Muslim lady, pelting of stone began and
after police action, the persons dispersed and the train started
again.
[4] The prosecution evidence as to stoppage of train near `A’ cabin
and cause for such stoppage is not consistent and conclusive. However,
droppage of pressure is clearly reported and no evidence about resetting
is forthcoming.
Thus, the prosecution claim about second chain pulling in view of
conspiracy is not substantiated from the evidence. If the second
stoppage was not due to chain pulling then no action by members of
unlawful assembly after train left railway station on resetting of chain
pulling in three compartments improbabilized the theory of conspiracy.
[5] The evidence of Ajay Kanubhai Bariya and retracted confessional
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statement of Jabir Binyamin Behra, the members of conspiracy
proceeding towards back portion of Aman Guest House after first chain
pulling and restarting of the train render the version of witnesses highly
unnatural and improbable.
[6] There is no reliable material emerging from the prosecution
evidence about such conduct of accused of going on backside of Aman
Guest House lifting 7 carboys and placing them in tempi and thereafter
leaving the place with 7 to 8 persons, reveal improbability of the
prosecution case.
[7] The charge of conspiracy clearly contemplates meeting of minds
and reaching an agreement to do an illegal act. This presupposes that
even if act is not committed, the agreement itself would be an
independent offence. Such formation of agreement is absolutely
essential before act is put into action. For entering such agreement there
is no other evidence expect the retracted confessional involuntary
statement of Jabir Binyamin Behra. If that evidence is inadmissible as
submitted by defence, then there is no evidence about meeting of minds
and reaching to an agreement to do an illegal act, viz. to put coaches of
Sabarmati Express train on fire.
[8] The evidence which have taken place after stoppage of train on
second time can also be the outcome of acts perpetrated by members of
unlawful assembly. Thus, the subsequent events which can be
attributable to the acts of members of unlawful assembly then, it does
not necessarily reveal the act being committed in pursuance to any
agreement between the conspirators. Thus, the subsequent events
cannot be pressed into service for inferring the acts being done by
members of the crowd as part of any conspiracy previously hatched.
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Documents admitted under Section 294 of Cr.P.C.
The prosecution has heavily relied on Exh.990 and Exh.1008. The
provisions of Section 294 of Cr.P.C. clearly show that “no formal
proof of certain documents”. Thus, it dispenses with proving of
documents as required by the provisions of Indian Evidence Act.
However, this provision does not exclude the operation of the
provisions of Indian Evidence Act and the Code of Criminal
Procedure. Exh.1008 [Page12230] is a document dated
19.09.2005 in response to the communication from the
Investigating Officer to the Railway authority about ACP. This
document itself reflects that it was an answer to the queries
forwarded by the Investigating Officer seeking details. Thus, it is
document coming into existence in answer to queries of I.O.
during the course of Investigation. This would clearly reflect that
had the Investigating Officer contacted the concerned person and
recorded his statement on those aspects, it would have been a
statement under Section 161 of Cr.P.C. Merely because it is a
correspondence in pursuance to query of the I.O., during the
course of investigation will not change the nature of that
document. That document being received by the I.O. during the
course of investigation would be amounting to a statement
U/s.162 of Cr.P.C. When such document is produced for
consideration before the Court it does not become the substantive
evidence. The provisions of the Evidence Act or any other
corresponding provision as to admissibility in evidence will
definitely be attracted. The provisions of sections 135 and 136 of
the Evidence Act clearly contemplates that the Court has to decide
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as to admissibility of evidence tendered by the party. Thus,
relevance and admissibility would be governed by the provisions of
section 136 of the Evidence Act and if document is inadmissible in
evidence will not be taken into consideration even if it is admitted
document U/s.294 of Code.
Similarly, if the document contains material which can be
considered as hearsay, then the same being not direct evidence
will not have evidentiary value. Thus, the reliance on Exh.990 and
Exh.1008 as well as other admitted documents under section 294
of Code would be governed by the rule of evidence and mere
admission of such documents which are not admissible cannot be
used for the same purpose.
Malay Kumar Ganguli Vs. Sukumar Mukherjee & ors.
(AIR2010SC1162)
0. In Paras46, 47 and 49, Their Lordships of the Hon’ble
Supreme Court of India took the view
“49. The document which is otherwise inadmissible
cannot be taken in evidence only because no
objection to the admissibility thereof was taken. In a
criminal case, subject of course, to the shifting of
burden depending upon the statutes and/or the
decisions of the superior courts, the right of an
accused is protected in terms of Article21 of the
Constitution of India.”
Exh.1008 being in answer to communication from Police Officer
the same would be hit by the provisions of section 162 of the Code
and such statements are not admissible in evidence. Their
Lordships of the Hon’ble Supreme Court in the matter of Kali Ram
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Vs. State of H.P. (AIR 1973 SC 2273) clearly held
“The prohibition contained in the section relates to
all statements made during the course of an
investigation. In the instant case the letter which was
addressed by the constable to the Station House
Officer was in the nature of narration of what he had
been told by the accused. Such a letter would
constitute statement for the purpose of section 162 of
the Code of Criminal Procedure. The prohibition
relating to the use of a statement made to a Police
Officer during the course of an investigation cannot
be set at naught by the Police Officer not himself
recording the statement of a person but having it in
the form of a communication addressed by the person
concerned to the Police Officer. If a statement
made by a person to police officer in the course of an
investigation is inadmissible, except for the purpose
mentioned in Sec. 162, the same would be true and a
letter containing narration of facts addressed by a
person to a police officer during the course of an
investigation. It is not permissible to circumvent
the prohibition contained in Sec. 162 by the
Investigating Officer obtaining a written statement
of a person instead of the Investigating Officer
himself recording that statement.”
Constitution of Special Investigation Team under the orders of
the Hon’ble Supreme Court:
PW.245/Exh.1457 Jasvantkumar Ramjibhai Mothaliva P.1326
[i] 1252008 Took over investigation from Dy.S.P., H.C.
Pathak with Case Diaries from 1 to 924.
[ii] Studied papers of investigation carried out till May, 2008.
[iii] Recorded statements of 88 witnesses on different dates and
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got the same verified by Supervising Officer.
[iv] 24102008 Wrote letter to the Director, FSL, Gandhinagar
seeking clarification on 21 issues/points.
[v] After 5 to 6 days of letter dated 24.10.2008 telephoned
Mr.Dahiya, Deputy Director, FSL on Query No.22.
[vi] On 7112008 Mr.Dahiya replied to a letter dated
24/10/2008. (Page. 13267 / Para11).
[vii] Did not interrogate any employee of Firebrigade to ascertain
the cause of fire in Coach S/6 as it was not considered to be
necessary. Similarly, did not interrogate Electrical Engineer
of Railway department.
[viii] Had examined Mr.Ashish Khaitan of Tahelka Magazine in
respect of sting operation relating to witness (i) Mr. Kakul
Pathak, (2) Mr. Murlidhar Mulchandani, (3) Mr. Ranjit
Jodha (Page12368/Paras.14 and 15). The videos of sting
operation was seen by him and the same was seized, clearly
admitted that he did not record statements of (1) Mr. Kakul
Pathak and (2) Mr. Ranjit Jodha in respect to sting
operation though claims to have recorded statement of
Murlidhar Mulchandani, but does not recollect the date.
Did not obtain any legal opinion about the sting operation
carriedout by Ashish Khaitan.
[ix] 11.02.2009 Mr. Raghavan, Chairman of SIT had
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submitted joint report in respect to cases before the
Supreme Court.
[x] 01.05.2009 Supreme Court had issued further direction.
The report was not submitted before the concerned POTA
Court before 11.02.2009, but had produced list of 88
witnesses examined by SIT.
[xi] 10.11.2008 Recorded statement of Sikandar Mamad
Siddiq Shaikh and got clarification about his earlier
statements before police as well as before Magistrate in
respect: to Moulvi Yakub Punjabi, but did not inquire
further about the person who was referred by Sikander.
(Page12374/Para24).
[xii] Paqe13275/Para26: Inquired about the accused Firozkhan
Zafarkhan Pathan and verified his claim about his presence
on duty in M/s.Kothi Steel Ltd., by recording statement of
Managing Director Firdausbhai Kothi. But no further
action qua accused Firozkhan Zafarkhan Pathan.
[xiii] Page 13277/para 30: Investigation in respect to accused
Abdul Rehman Yusuf Dhantiya.
[xiv] Page13278/Para32 : Recording of statements U/s.164 by
threatening and pressure and witness lliyas Mulla and
Anwar Kalander were interrogated on this aspect by
witness. Their statements were not produced before the
Court as the same were in respect to the application
received by SIT.
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Thus, the investigation by SIT clearly reflects perfunctory
nature of investigation and there is no attempt to findout
the truth, more particularly in respect to statements Under
Sec. 164 Code and Sting Operation. The detailed
investigation in respect to sting operation if established the
same to be genuine, then obviously it casts reflection on the
nature of investigation carriedout by Noel Parmar.
9. That Mr. A.D. Shah, the learned senior counsel for the defence
and appellants convicts in the context of charge of conspiracy relied on
relevant prosecution witnesses and exhibits. As the charge framed by
the learned trial Judge is already produced in earlier part of this
judgment, it is not reproduced here to avoid repetition.
[II] Evidence of Relevant Witnesses:
[1] Evidence as to hatching of conspiracy on 26/2/2002
Confessional statement of accused Jabir Bin Yamin-Exh. 1469-
original confessional statement (5/2/2003) proved by Rajnikant
Khodihad Parmar, Chief Judicial Magistrate, Godhra
(PW.246/Exh.1467).
PW.224/Exh.1139 Ranjitsinh Jodhabhai Patel
Exh. 1470 Statement U/s. 164 of Ranjitsinh.
PW.231/Exh.1306 Prabhatsinh Gulabsinh Patel
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PW.192/Exh. 960 Riyasuddin Amiruddin Pthan Hostile.
PW.232/Exh. 1214 Iliyas Hussain Mulla - Hostile
PW.234/Exh.1046 Noel Volar Parmar
[i] Accd. Jabir Bin Yamin Behra arrested on 22/1/2003 and on
remand in Police Custody upto 30/1/2003.
[ii] 28/1/2003 the accused Jabir Bin Yamin expressed is
willingness to confess the crime after custodial interrogation of 5
days. His police statement was recorded on 28/1/2003 and the
same videographed by Police Officer and the accused was
thereafter forwarded to JMFC on 29/1/2003.
[iii] The accused was sent to judicial custody and was at Central
Prison, Vadodara.
[iv] Chief Judicial Magistrate, Godhra by intimation to the
Jailor, Vadodara (Exh.1468). Summoned the accused on
4/2/2003 and his custody was obtained by PSI S.P. Patel who was
associated with the investigation. Similarly, after preliminary
statement on 4/2/2003 accused was sent to central prison, Baroda
with PSI S.P. Patel.
PW.236/Exh. 1231 Ajaykumar Kanubhai Bariya
PW.237/Exh.1252 Sikandar Md. Siddiki Shaikh
PW.186/Exh.923 Mustaq Ahmedhussain Mohammad –
Hostile.
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What transpired on 27 at Godhra Railway Station
First version as mentioned in the FIR :
[A] PW. 228/Exh.1189 Rajendrarao Raghunathrao Jadav
Engine Driver – Complainant.
[i] His evidence and FIR disclosed, Sabarmati Express Train
reached Godhra Railway Station at about 7.43 a.m. at the
platform no.1.
[ii] At 7.45 a.m. on signal being given, the train had started for
Vadodara and 4/5 coaches crossed from the platform.
[iii] At 7.47 a.m. there was chainpulling and it revealed that the
Coach No.83101, 5343, 51263 and 88238 reported chainpulling
and the same was reported to the Station Master. Coach no.S6
was having No.93498 and thus there was no chainpulling from
that coach. After arranging chainpulling even train started. When
the train reached and engine crossed ‘A’; Cabin, there was
stoppage of train (suspected to be chainpulling, but subsequently
revealed that it was due to droppage of pressure and not due to
pulling of chain.)[iv] Near ‘A’ cabin from the platform side, a crowd of about 900
to 1000 started stones and Coach no.S6 was put on fire by the
crowd and S.S. had contacted Godhra Police and Fire Brigade. The
police arrive and resorted to disperse the crowd by use of Teargas
Cell and Lathi charge, but the crowd did not disperse and hence
police resorted to firing. After initial stoppage firebrigade reachedPage 151 of 988
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the place and extinguished the fire. However, the entire Coach S6
was burnt and dead bodies were lying in the coach. Similarly,
some of the passengers had sustained injuries due to pelting of
stones and fire while escaping from the coach.
[B] PW.131/Exh.760 Mukesh Raghuvirprasad Pancholi
Asst. Driver.
[C] PW.111/Exh.712 Fatehsinh Dhabsinh Solanki.
Points made at Railway Yard.
[D] PW.126/Exh.742 Harimohan Fulsinh Meena
Dy. Asst. Station Master.
[E] PW.127/Exh.744 Rajendraparasad Misrilal Meena
Asst. Station Master on duty at ‘A’
Cabin.
[F] PW.135/Exh.777 Satyanarayan Panchuram Verma
Railway Guard.
Submissions on most important aspects of the case
[i] The socalled conspirators did not go to back of Aman Guest
House, where 7 plastic carboys filled with petrol had been
unloaded in the room of Abdul Razak Kurkur till starting of the
train after first chainpulling.
[ii] Sabarmati Express all coaches were occupied by majority of
Kar Sevaks, over and above passengers having their reservations.
Though the Kar Sevaks were not having reservations from
Ayodhya to Ahmedabad and onward journey, had occupied seats
and passages in different coaches including reserves seats.
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[iii] The Coaches S6 and S7 were overcrowded and though
each coach had capacity of 72 seats for passengers, there were
more than 150 occupants in these coaches. Thus, presence of Kar
Sevaks in all the coaches negatives the aspect of conspiracy to
burn Coach S6. The evidence revealed that Coach S6 was having
200 to 250 passengers and even toilet area of Coach S7 and
Coach S6 were occupied by the passengers as well as placing of
foodgrains packages near the sliding door.
[iv] The fact that the conspiring accused went to back portion of
Aman Guest House and loaded 7 carboys in a loading rickshaw
after the train started second time after first chainpulling and
stoppage of train which was not due to pulling of chain but due to
droppage of pressure, renders theory of conspiracy to burn S6
highly unnatural and improbable.
[v] Similarly, sale of 140 ltrs. of petrol came to surface for the
first time on 23/2/2003 and substantiated in the statement U/s.
Cr.P.C. on 11/3/2003. The earliest version in April, 2002 did not
substantiate the theory of sale of 140 ltrs. of petrol on 26/2/2002.
[i] The evidence of prosecution witnesses clearly reveal that
Coach No.S/6 was having more than 150 to 200 passengers and
even movement was very difficult in view of congestion. Some of
passengers started proceeding towards toilet on commencement of
pelting of stones on Coach S/6. They noticed smoke in the coach
and when they came from right side of the coach they saw fire.
Evidence of :
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(1) PW.81/Exh.625 Poojaben Bahadursinh – P.11084
(2) PW.88/Exh.625 Shantibhai Shankerbhai – P.11143[ii] Some of the passengers were using their luggage for
covering windows of S/6 to protect them from pelting of stones.
They saw throwing of burning rags and fire on seat and luggage in
coach S/6 and they first witnessed heavy smoke resulting into
burning sensation in eyes and difficulty in breathing which
forced them to comeout from right side door and thereafter
fire was seen.
[1] PW.77/Exh.614 Rajendrasingh Ramfersinh P.11059
[2] PW.78/Exh.615 Raju Krupashanker Pandey P.11066
[3] PW.80/Exh.621 Gyanprakash Lalanprasad
Chorasia - P.11078
[4] PW.84/Exh.634 Hetalben Babubhai Patel P.11108
[5] PW.87/Exh.641 Maheshbhai Jayantibhai Patel P.11136
[6] PW.95/Exh.663 Vandanaben Rajendra
Ramfersinh P.11176
[7] PW.96/Exh.666 Satishkumar Ravindra Mishra P.11183
[8] PW.107/Exh.609 Purshottam Gordhan Patel P.11253
[9] PW.113/Exh.715 Radheshyam Ramchandra P.11297
[10] PW.114/Exh.719 Subhashchandra Ramchandra
Mishra P.11304
[11] PW.119/Exh.729 Punamkumari Sunilkumar
Tiwari P.11336
Note: The evidence of these witnesses rulesout prosecution
theory propounded through the confessional statement of accused
Jabir Bin Yamin Behra, PW.236 Ajay Kanubhai Bariya and PW.232
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Sikandar Mohammad Siddiq Shaikh as to some of the accused
entered Coach S/6 by forcible opening of sliding door after cutting
canvass vestibules between CoachS/6 and S/7 and thereafter
pouring petrol from plastic carboys.
[ii] The evidence of prosecution witnesses also clearly
establishes that the door between Coach S/6 and S/7 were closed
by them due to cold wind. Their evidence also discloses that
though they had reservations, they could not get their Seats due to
presence Kar Sevaks and they had to place their suitcases and
foodgrains bags near toilet area.
[1] PW.99/Exh.676 Prakash Harilal Taili P.11209
[2] PW.102/Exh.680 Rampal Jigilal Gupta P.11224
[3] PW.103/Exh.681 Somnath Sitaram Kahar P.11231
[4] PW.79/Exh.619 Amarkumar Jamnaprasad TiwariP.11070
[5] PW.82/Exh.627 Virpal Chhedilal Pal P.11092
[6] PW.86/Exh.638 Hariprasad Maniram Joshi P.11130
Confessional Statement of accused Jabir Bin Yamin Behra:
Relevant Dates:
22/1/2003 The accused Jabir Bin Yamin Behra was arrested.
23/1/2003
to
30/1/2003 The accused Jabir was remanded to Police Custody.
28/1/2003 Accd. Jabir expressed his willingness to confess the crime.
The I.O. Noel Parmar (PW.244/Exh.1406P.13129) recorded confessional
statement under videography.
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29/1/2003 The accused was produced before JMFC, Godhra with
report for recording statement U/s. 164 Cr.P.C. However,
ld. JMFC expressed his inability to record such confessional
statement, having no jurisdiction, CJM was required to be
contacted. Thus the accused was required to be sent to
judicial custody.
04/02/2003 Report / letter (Exh.1468 / P.13334) was submitted to
Chief Judicial Magistrate, Godhra for recording
confessional statement of accused Jabir CJM directed the
Jail Authorities to produce accused Jabir for recording
confessional statement on 5/2/2003.
04/02/2003 PSI, S.B. Patel (PW.243/Exh.1393/P. 13111) had gone to
Central Prison, Vadodara and obtained custody to produce the accused
Jabir before the ld. CJM, Godhra who recorded preliminary
statement of accused Jabir and sent back to Central Prison,
Vadodara, with PSI, S.B. Patel.
05/02/2003 Accd. Jabir was obtained in custody by PSI Patel from
Central Prison, Vadodara and produced before ld. CJM Mr.
R.K. Parmar (PW.246 / Exh.1467 / P.13307) for recording
confessional statement. Thus confessional statement
(Exh.1469) came to be recorded on 5/2/2003.
POINTS:
[1] The recording of confessional statement by the I.O. U/s. 161
under Videography was contrary to the provisions of Sec. 161.
[2] The aspect of Video recording of confession by Police
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Officer Noel Parmar was kept secret and not brought to the notice
of the chief Judicial Magistrate.
[3] The Chief Judicial Magistrate handedover reportletter
(Exh.1468) to the PSI S.B. Patel who was associated with the
investigation of the case. Thus, the accused who was in judicial
custody was for temporary period before recording of confession
was in police custody. Even after preliminary statement, the
accused Jabir was not kept in judicial custody at Godhra SubJail,
but was sent back to Central Prison, Vadodara in custody of PSI
S.B. Patel. Same procedure was followed on 5/2/2003 and thus
the custody of Accd. Jabir before recording of confessional
Statement (Exh.1469) on 5/2/2003 was soon after the police
custody.
[4] The evidence of Chief Judicial Magistrate R.K. Parmar
(PW.246/Exh.1467/P.13307) clearly revealed that the CJM was
not aware about the provisions of guidelines as to recording of
confessional statement as mentioned in Criminal Manual and thus,
the confessional statement was not recorded in compliance with
the provisions of the guidelines mentioned in Criminal Manual.
The evidence of CJM further discloses that this was first recording
of confessional statement and he had no idea of the safeguards to
be observed for recording of confessional statement. The non
compliance of some of the provisions on consideration of cross
examination of CJM, it clearly establishes that the statement
cannot be considered to be voluntary.
The accused Jabir was hardly aged about 20 years and after
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to be recorded by the I.O. Noel Parmar under videography and
though the accused was in police custody upto 30/1/2003, he was
forwarded to JMFC, Godhra, Camping at Dahod on 29/1/2003 for
recording confessional statement U/s. 164. The Chief Judicial
Magistrate was duty bound to see that the accused was in judicial
custody was not directly or indirectly placed in Police Custody and
yet by letter dated 4/2/2003 (Exh.1467) directed the Jail
Authorities to handover the custody of accused Jabir to PSI S.B.
Patel who was associated with the investigation.
[5] Thus, evidence of Investigating Officer Noel Parmar
(relevant Paragraphs16, 17 and 72) clearly established flagrant
violation of the provisions of Sec. 161 and 163 of Cr.P.C.
Recording of statement under videography was not permissible
and he was not aware about the provisions of recording of
confessional statement as emerging in Criminal Manual. Mr. Noel
Parmar categorically admitted that from the time of joining service
in 1966 to 28/1/2003 he had no occasion to read Criminal
Manual (last six lines of Para72). Further, Mr. Noel Parmar had
instructed Railway PSI S.B. Patel to take accused Jabir Bin Yamin
Behra on the relevant dates before the Magistrate.
[6] Similarly, the evidence of Chief Judicial Magistrate
Rajnikant Khodidas Parmar, clearly establishes that he had never
an occasion to refer to the Criminal Manual guidelines, more
particularly Para34(ii) and (iii) as well as (ix). Similarly, not
being aware of Form No.35 provided under Criminal Manual also
reflect the violation of necessary precautions.
Furthermore, the evidence of Chief Judicial Magistrate
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clearly discloses that after recording confessional statement, the
same was placed in a cover and the said cover was sealed in his
presence immediately thereafter. It was also clearly admitted by
Chief Judicial Magistrate that no Xerox copy of the said
confessional statement was takenout before placing it in a cover
and sealing the same. Similarly, neither Noel Parmar nor PSI S.B.
Patel were in the Court room, and no Yadi was given for getting
the copy of the Statement. Similarly, no copy of confessional
statement was handedover to Mr. Noel Parmar. The sealed cover
was forwarded to JMFC, Railway and not to the Court6 of
Sessions. Further admission reveals noncompliance of Clauses7
and 9 of second part of Form No.35 on 5/2/2003.
Shocking and surprising, is the revelation by the I.O. Noel
Parmar (para73) about his obtaining copy of confessional
statement from the Court during 5 p.m. to 6 p.m. on 5/2/2003
and discussion about the same amongst Superior Officers on that
day. This factual background emerging from the evidence of
investigating agency and Chief Judicial Magistrate makes the
confessional statement to be of suspicious nature and at least not
free and true one.
[7] The contents of the confessional statement run counter to
the main prosecution evidence of passengers occupying CoachS/6
and CoachS/7. When the direct evidence of passengers falsifies
the contents of confessional statement on touch stone of
probabilities, the same cannot be considered as trustworthy and
true one. Thus, the confessional statement is not only involuntary,
but also untruthful and cannot inspire any confidence. The same
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charges against the accused.
Scientific Evidence – Reports of Forensic Science Laboratory:
[1] The evidence of Investigating agency, more particularly, evidence
of PSI Mohbatsinh Jawansinh Zala (PW.230/Exh.1196/P.12634) and
Dy. S.P. Bhasker Ramdas Simpi (PW.238/Exh.1262/P.12876) clearly
revealed that on 27/2/2002 or 28/2/2002 no Officer from Forensic
Science Laboratory was summoned to examine Coaches S/2, S/4, S/6
and S/7. The prosecution evidence clearly reveals that the Officers of
FSL were summoned for the first time on 1/5/2002. Thereafter, Officers
of FSL were summoned on 3/5/2002, 2/7/2002, 11/7/2002 and
15/7/2002.
[2] The prosecution examined two photographers to prove photos
taken at the place of incident. The Photographer Jitendrakumar
Chimanlal Patel (PW.245/Exh.794/P.11598) is examined to prove
photos taken on 1172003 under guidance of FSL Officer, Khandelwal.
Similarly, Photographer Shardul Bhalchandra Gajjar (PW.205 /
Exh.1047 / P.122305) clearly establishes about his taking photographs
on 27/2/2002 at the scene of offence when Coach No.S6 was in flame.
12 photographs (Exh. 1048 to 1059) surprisingly and shockingly were
not forwarded to FSL by the Investigating agency.
The investigating agency has drawn Panchnama (Exh.85) on
27/2/2002. Another Panchnama (Exh.86) was drawn on 28/2/2002 to
collect samples from Coach S/6. Surprisingly both the Panchnama are
silent about presence of smell of petrol.
The Scientific Officer Mukesh Nandshanker Joshi
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(PW.225/Exh.1150/ P.12519) visited Godhra on 3/5/200, 27/2/2002
and 11/7/2002 to inspect CoachS/6. This witness also visited
Ahmedabad Railway Station on 15/7/2002 to examine coaches S/2 and
S/7.
The evidence of Assistant Director of FSL, namely,
Satishchandra Ganpatram Khandelwal (PW226 / Exh.1158 / P.12535)
refers to his visit to Godhra on 11/7/2002 and photographer
Jitendrakumar Patel taking 15 photographs (Black & White) and
examination was in respect of sliding door of Coach No.S/6 and S/5.
The prosecution also examined Mohindersingh J. Dahiya
(PW.240/ Exh.1347/P.12982) in respect to examination of Coach
No.S/6 on 1/5/2002. This witness claims to have prepared rough notes
about the detailed inspection of coaches on 1/5/2002 1/5/2002 and on
the basis of which report came to be submitted on 17/5/2002. Rough
notes (Exh.1348) and Inspection Report (Exh.1349). This witness also
carriedout demonstration by arranging Coach at the place of Offence
near ‘A’ Cabin on 3/5/2002 and the detailed report with sketch (Exh.
1350) was submitted on 17/5/2002.
Thus, after 15/7/2002 no further Scientific examination came to
be conducted, but the I.O. Noel Parmar raised certain questions on
25/8/2004 by letter (Exh.1353). The witness had forwarded clarification
in respect to the queries by letter dated 2/9/2004 (Exh.1354). The
Report (Exh.1349) clearly reveals:
[i] All windows of Coach were closed at the time when fire
took place.
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[ii] No symptoms or signs of use of highly corrosive substance
like acid.
[iii] The windows situate on Southern side of the Coach having
stone broken iron bar did not appear to be damaged by force from
outside and no instrument for bending the iron bar appears to
have been used. The attempt to break iron bar appears to have
been by use of force from inside and damage to other iron bars
was result of heat effecting welded portion.
[iv] The glass windows of Southern side were damaged due to
pelting of stones whereas glass windows on Northern side [S/7
side] were damaged due to heat generated from fire.
Similarly, demonstration done on 3/5/2007 and Report (Exh.
1350) deals with the possibility of throwing of inflammable liquid from
buckets or carboys inside the coach being not feasible and possible.
Similarly, attempting of throwing of inflammable liquid from a block of
grid having 3ft height at a distance of 14 ft. did not reveal the feasibility
of such attempt. Furthermore, this attempt revealed that majority of
liquid fell outside near the railway track. This report clearly revealed
that no inflammable material came to be thrown inside the coach, either
from windows or door from outside.
This report further revealed about the pouring of water from
bucket type wide opening container from Eastern side [plotform side]
door and passage required 60 ltrs. of water for covering the majority
portion of the coach. However, the water poured in this fashion went
towards Western side and did not come out from opened doors and did
not travel upto latrine area. This demonstration of requirement of 60 ltrs
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of water is devoid of merits, more particularly when the ground reality
of Coach S6 being overcrowded by 150 to 200 persons with their
luggage has not been taken into consideration. Considering the presence
of passengers and their luggage, it is too much t believe that 140 liters of
petrol, as claimed by the prosecution could have been poured.
[3] The oral evidence of passengers of Coach S/6 and S/7 clearly
revealed that numbers of persons were occupying the open place
between two toilets and passage near two doors on Eastern side of
Coach S/6. These witnesses also claimed that the sliding door on Eastern
side of S/6 was closed and they had seen smoke and fire in Coach S/6.
Thus, the claim of prosecution by placing reliance on the confessional
statement of accused Jabir Bin Yamin Behra and Ajay Kanubhai Baria as
well as Sikandar as to tearing of canvass vestibules by use of knife and
opening the sliding door of Coach S/6 by use of force and thereafter
pouring petrol from plastic carboys could not have been permitted or
tolerated by Kar Sevaks and other passengers occupying Coach S/6.
The Inspection of Coach S/6 on 11/7/2002 clearly establishes
the first attempted step to substantiate the prosecution version about
tearing of canvass vestibules and opening of sliding door on Eastern
side of S/6 after recording statement of Ajay Kanubhai Bariya.
Surprisingly upto 2/7/2002 the Officers of FSL Team did not consider of
examination of sliding door. It is only after statement of Ajay Kanubhai
Bariya recorded on 4/7/2002 and 5/7/2002 and volunteered statement
U/s. 164 Cr.P.C. being given by Ajay Kanubahi Bariya before Judicial
magistrate on 9/7/2002 that Noel Parmar calls upon Officers of FSL by
Fax message to examine Coach S/6 on 10/7/2002. Thus, the damage to
sliding door came to be noticed on 11/7/2002 after recording of
Statements of Ajay Kanubhai Bariya on 4th, 5th and 9th July, 2002.
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However, this forcible opening of sliding door of S/6 on Eastern side
is not substantiated at all by any of the passengers including Kar
Sevaks occupying Coach S/6.
Evidence – Lie Detection Test:
1 The prosecution is also relying on the evidence of
PW.239/Exh.1263. Amita Dipeshkumar Shukla – Page.12882. It is the
case of the prosecution that this witness is Officer of FSL and
Investigating Officer had forwarded names of 5 accused for conducting
lie detection test. The names of 5 accused [i] Abdul Razak Dhantiya
[ii] Haji Bilal
[iii] Kasim Abdul Sattar alias Kasim Biriyani
[iv] Irfan Siraz Pada
[v] Anwar Ahmed Menda.
The accused Abdul Razak Dhantiya and accused Haji Bilal had
undergone lie detection test on 21st May, 2002 whereas the accused
Kasim Abdul Sattar alias Kasim Biriyani, Irfan Siraz Pada and Anwar
Menda had undergone lie detection test on 22/5/2002.
2 The prosecution has produced Exh. 1270 to 1282 – Pages
12903 to 12924 in respect to questionnaire, consent letters and answers.
As regards reports about affirmative test and controlled Question
Test of Abdul Razak, prosecution has produced documents at Exh.1283
to 1288 – Page 12925 to 12928.
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Similarly, prosecution has also produced similar documents in
respect to accused Bilal Haji at Exhs. 1289 to 1294 – Page 12929 to
12932.
Similarly, prosecution is also relying on the same set of documents
in respect to accused Kasim Abdul Sattar alias Kasim Biriyani and the
same documents are produced at Exhs. 1295 to 1300 – pages 12933 to
12936.
Similarly the prosecution has produced similar documents in
respect to accused Irfan Siraz Pada at Exh. 1301 to 1306 – pages 12937
to 12940.
Similarly, the prosecution is relying on similar documents in
respect to the accused Anwar Mohammad and the said documents are
produced at Exh. 1307 to 1312 – pages 12941 to 12944.
The prosecution has produced report of Polygraph Test (Final) at
Exh. 1322 – Page 12951.
3 The prosecution, during course of investigation, in
December, 2002, called upon the Officer of FSL to conduct Lie Detection
Test on the accused Abdul Razak Mohammad Kurkur. It appears that
this test was conducted by FSL on 30/31122002. the prosecution has
produced similar types of documents of conducting lie detection test at
Exh. 1323 to 1339 – Pages 12957 to 12976.
The prosecution has also produced final report of test at Exhs.
1344 and 1345 at Pages 12977 and 12978.
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It appears that the accused Abdul Razak Kurkur was first produced
on 2/12/2002 when he was observing Fast of Ramzan and as he was
having vomiting sensation the test could not be conducted on that day.
This accused was called on 3rd December as well as on 4th December and
it is claimed by the prosecution that the accused had not given written
information in pursuance to questions put to him but he had given
writing on his own. The said evidence of the witness when looked into
documentary evidence Exh.1235 – page 12962 it clearly transpires that
the same was in reference to questions put to the accused by another
Officer Dr. Wilkhoo. Thus, witness when confronted with Exh.1325
clearly admitted that the said document Exh.1325 was in reference to
questions put to the accused and no test was carriedout during these
three days.
The evidence of this witness clearly revealed that the accused
Abdul Razak Kurkur did not show any willingness to give any writing on
30/12/2002 and no signature was obtained on consent terms. The
document Exh.1323 – Page 12957 clearly reflect how the endorsements
came to be made. Similarly, the Lie Detection Test report Exh.1345 –
P.12978 does not mention about the conducting of affirmative test.
Thus, the prosecution has adduced evidence of lie detection test in
respect to 6 accused.
The crossexamination of these witnesses clearly revealed that
there are 6 methods for conducting lie detection test and during this test
conducted on 6 accused, only two methods were resorted. The cross
examination further revealed that the produce followed in conduct of
such test is not in conformity with different tactics. The reliance by the
prosecution on graphs produced by the witness in view of the fact that
there is no separate specific note is reflected about the changes on the
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graph. This witness further admitted that details have been mentioned in
the form but a layman cannot appreciate the difference reflected in the
form by referring to graph. The categorical admission by the witness that
the graph produced by him cannot be understood directly by a layman.
Thus, when the evidence of this witness is appreciated in light of the
crossexamination, one thing clearly emerges that the opinion expressed
by the witness about the lie detection test in respect to the accused is
based on subjective satisfaction and the Court cannot objectively
ascertain from the graph and the report about the satisfaction of the
Expert. Thus, when the evidence of an Expert witness is based on
subjective satisfaction and the same cannot be demonstrated before the
court objectively, then the same ceases to be expert evidence relevant
under the provisions of Sec. 45 of the Evidence Act.
The following points clearly emerge from the evidence on record
which makes this Scientific Evidence without any credence. It clearly
emerges that
i] Study of material supplied by the I.O.
ii] No written permission of JMFC from whose custody they
came to be produced.
iii] Questions framed without any material available from
record clearly reflecting intervention from the Investigating
Agency.
iv] Out of recognized 6 methods, only two methods applied
during test.
v] Polygraphs cannot be explained or understood by a layman.
Vi] Subjective satisfaction of officer which cannot be
objectively assessed from graphs;
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and considering the observations of Their Lordships of the Apex
Court in matter of Selvi & others Vs. State of Karnataka [JT
2010(5) page.11 – Para23] where the Hon’ble Apex Court
considered the observations about the National Human Rights
Commission’s Publication “Guidelines for the Demonstration of
Polygraph test (lie detection test) on accused, it clearly transpires
that the evidence of witness Amita Dipeshkumar Shukla is not in
conformity with these guidelines.
Next Group Witnesses assumes importance in respect of Collection of
Evidence soon after the incident. This would clearly reflect the role
attributable to the Investigating machinery and Railway Authorities.
The prosecution has examined witnesses from Firebrigade:
PW.129/Exh.755/P.11408 – Kanubhai Chhaganbhai Bariya.
PW.130/Exh.757/P.11425 – Vijaykumar Ramchandra Sharma
PW.133/Exh.766/P.11458 – Rupsinh Chhaganbhai Bariya.
PW.165/Exh.855/P.11903 – Sureshgiri Mohangiri Gosai.
The evidence of this Fire Brigade Officers would have assumed
more importance, had there been immediate action of Coach No.S6
being examined by expert witnesses of Railway Authorities and/or
Scientific Officers of FSL. No doubt the evidence of these witnesses
establishes that the Coach No.S/6 was in flames and they had
extinguished the fire. However, their evidence about the condition and
site situation of coach S/6 is not clearly emerging.
Similarly, two Police Officers, namely, PW.230/Exh.1196
Mohabbatsinh Jawansinh Zala PSI (Page 126234) andPage 168 of 988
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PW.238/Exh.1262 Bhaskar Ramdas Simpi, Dy. S.P., (Page 12876),
would have assumed great importance if they had taken steps to
ascertain the circumstances by which Coach No.S/6 caught fire.
However, nothing is emerging from their evidence revealing facts of
postfire circumstances noticed by them. The Investigating Officer who
had recorded the FIR and thereafter the Investigation was taken over by
K.C. Bava, no steps were taken to summon the concerned Officers from
Railways and/or from F.S.L. soon after the fire was extinguished on
27/2/2002. This being serious lapse by the Investigating Agency – I.O.,
the important circumstantial evidence has not come on record.
The Investigating Agency, for the first time summoned Officers of
FSL on 1/5/2002 by which time Coach S6 was visited by number of
persons. The prosecution has thus sought services of Scientific Officers
from FSL during different stages of investigation as and when needed to
substantiate the claim of witnesses. The prosecution has thus sought to
rely upon such examinations and reports presented before the Court on
1/5/2002, 3/5/2002, 2/7/2002, 11/7/2002 and 15/7/2002.
4 The prosecution has also placed reliance on Panchnamas
drawn on 27/2/2002 (Exh.85/P.9785) and the panchnama drawn on
28/2/2002 (Exh.86/P.9790). However, both these Panchnamas would
not justify the different versions emerging from the evidence on record
adduced by the prosecution.
The prosecution did examine PW.205/Exh.1047 Shardulsinh
Bhalchandra Gajjar (Page 12305) who had taken photographs at the
time when Coach S/6 was in flames. The said photographs came to be
produced at Exh.1048 to 1059. The photographs clearly reflect certain
important aspects and had the prosecution sent the said photographs to
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FSL for its scientific study, it would have been of great importance to
appreciate different versions emerging from the evidence of passengers
and the socalled belated confessional statements. Thus, inaction on the
part of the investigating agency for collecting scientific evidence and
circumstances soon after the incident, has deprived the Hon’ble Court
from reaching the right conclusion as to the circumstances and manner
in which the incident took place.
PART IIIK
LIST OF CITATIONS RELIED ON BY MR AD SHAH, LEARNED
COUNSEL FOR THE DEFENCE ARE AS UNDER:
Sr. Parties Citation Issue
No.
1 State of Gujarat v. 2014 AIR SCW 557 Lapses in investigation
Kishanbhai and prosecution -
paras 11 & 12] Procedure to prevent
and check laid down -
necessary directions
are issued.
2 Adambhai (2014)7 SCC 716 Illegal framing of
Sulemanbhai Para 52 innocent persons -
Ajmeri & Ors. vs. Concurrent convictions
State of Gujarat and sentences of all
accused, set aside and
attempt at their false
implication by State,
stringently deprecated.
3 Yakub Abdulrazak (2013)13 SCC 1 With regard to section
Memon 120A and B of IPC of
conspiracy [para125]
4 Rabindra Kumar Pal AIR 2011 SC About Section 164 of
Alias Dara Singh vs. 1436(1) Code, 1973.
Republic of India
5 Malay Kumar AIR 2010 SC 1162 Section 45 of the
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Ganguli Vs. [Para43] Evidence Act.
Sukumar
Mukherjee & ors.
6 Mohd. Ayub Dar vs. (2010)9 SCC 312 Section 120B -
Jammu and Conspiracy and Section
Kashmir 15 of TADA, 1987
7 State of Andhra (2009)8 SCC 383 Value of confessional
Pradesh v. statements.
S.Swarnalatha
8 Akbar Sheikh v. (2009)7 SCC 415 Unlawful Assembly
State of West
Bengal
9 Rama & Ors. v. AIR 2002 SC 1814 Appeal against
State of Rajasthan conviction - Disposal
of by simply saying
that "there is no error
apparent in finding of
trial Court", without
reappraising evidence
- Not a proper method
- A duty is enjoined
upon appellate court to
reappraise evidence
itself.
10 Mahabir Singh v. AIR 2001 SC 2503 Sec.164 regarding
State of Haryana Confessional statement
11 Jogender Nath vs. (2000)1 SC 272 Locus standi to get
State of Orissa one's statement
recorded u/S. 164.
12 State of Tamil Nadu AIR 1999 SC Sections 164 and 463
through 2640(1)
Superintendent of
Police CBI/SIT, v.
Nalini and Ors.
13 State of Gujarat v. AIR 1998 SC 1686 Scope - Confessional
Mohammed Atik statement usable u/S.
15 - Does not become
unusable merely
because case is
different or crime is
different.
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14 Sivappa vs. State of AIR 1995 SC 980 Confession of accused
Karnataka Paras 5, 6 and 7 recorded u/s.164
cannot be acted upon
unless court satisfies
that it is voluntary in
nature.
15 Dilavar Hussain AIR 1991 SC 56(1) Unlawful assembly -
s/o. Identification of
Mohammadbhai accused from out of
Laliwala v. State of mob highly doubtful, -
Gujarat Failure to lodge
complaint to police -
Evidence establishing
possibility / probability
of witnesses seeing the
occurrence not brought
on record - Accused
entitled to acquittal.
16 Lilamoy Ghosh v. 1986(3) Crimes 145 Section 294 of Cr.P.C.
State of W.B.
17 Dagdu vs. State of AIR 1977 SC 1579 Value of confessional
Maharashtra paras 48 to 51 statements.
18 Balak Ram v. State AIR 1974 SC 2165 The evidence of
of Uttar Pradesh witnesses cannot be
discarded merely
because their
statements were
recorded u/S. 164 of
the Evidence Act. But
their evidence must be
approached with
caution.
19 Kali Ram Vs. State AIR 1973 SC 2273 Section 162 - scope
of H.P [paras 25 to 27] and applicability -
Statement to a police
officer.
20 Laxmipat Choraria AIR 1968 SC 938 Confessional
v. State of statement.
Maharashtra
21 Sarwan Singh v. AIR 1957 SC 637 Value of confessional
State of Punjab statements.
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22 Muthuswami v. AIR 1954 SC 4 A confession should
State of Madras [paras 6 & 8] not be accepted merely
because it contains a
wealth of details which
could not have been
invented. Unless the
main features of the
story are shown to be
true, it is unsafe to
regard mere wealth of
uncorroborated detail
as a safeguard of truth.
23 Hanuman Govind AIR 1952 SC 343(1) Circumstantial
Nargundkar v. State [para 10] evidence and duty of
of M.P. court
PART IVA
SUBMISSIONS OF MR. I.H.SYED, LEARNED COUNSEL FOR THE
DEFENCE
1 Mr. I.H.Syed, learned counsel for the defence referred to
certain events which took place and relied on by the prosecution and
evidence in this regard surfaced on record visavis statements of
witnesses, their testimonies and official record of railway authorities and
FSL and submitted that such evidence do not establish any case against
accused much less charges are proved in the court of law.
2 Reference is made to timings and date of arrival of train on
27.02.2002 and incident of harassment and molestation of two Muslim
ladies by Kar Sevaks, shouting of slogans provoking religious sentiments
and overloaded bogies of Sabarmati Train by authorised and
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unauthorized passengers, who were returning from Ayodhya after
performing Kar Seva. That Rajendrarao Jadav, Driver, PW228, deposed
that, he was informed by the C & W Assistant, Railway Yard, Godhra,
the hose pipe got burst and two hose pipes were replaced. As against
the above, the Assistant Driver, Mr. Mukesh Pachori, PW 131 has
deposed that, vacuum pressure had a significant drop on a second
occasion and that was not due to chain pulling and he has also stated
that, if the hose pipes open up accidentally then also vacuum drop is
possible. The Assistant Station Master, A” Cabin Mr. Rajendraprasad
Meena, PW127, deposed that if there is an ACP, the disc of ACP is
required to reset and then only the train can restart and travel forward
and according to Mr. Syed, learned counsel for the defence, there is no
evidence of second occasion that the disc was reset. That even the
Guard, Satnarayan Verma, PW 135, deposed that, the vacuum pressure
had come to zero. It is submitted that even the evidence with regard to
physical verification of coach S5, S6 & S7 carried before the shunting
operation could start, the Senior Section Engineer at Godhra Yard had
given the approximate damage caused to 3 coaches and vestibule tube to
S5 and S7 was noticed but no damage to any other part of the said
vestibule tube was examined by him. Even Fatehsinh Dabsinh Solanki,
PW111, who carried out the shunting process and later on Gangaram
Javanram Rathod, Senior Section Engineer, PW162, deposed about
carrying out minor repairing in the remaining 15 coaches and major
repairs for 2 coaches viz. S2 & S7.
3 About seizure of 27 articles from scene of offence vide
seizure panchnama Exh.85 in presence of PW1 Exh.84 which include 2
carboys and another seizure panchnama Exh.93 in presence of PW2
Exh.92 categorically stated that both the vestibule tubes of S6 coach
were closed. On 20.02.2002, bodies were identified and shifted to Sola
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Hospital, Ahmedabad. A reference was made to seizure panchnama as
above and recovery of 15 articles from S6 vide seizure panchnama
Exh.86 by PW220, Supervising I.O. Thus, Exh.85 reveal seizure of 27
articles from scene of offence and Exh.86, 15 articles seized from coach
S6. The above articles were dispatched vide forwarding letter Exh.1167
on 02.03.2002 on 04.03.2002 vide Exh.1172 communication
questionnaire for investigation was sent to FSL to determine any
inflammable substance residue, if found, in the burn remains.
4 Even doubt is raised about panchnama Exh.23 dated
15.07.2002 and repairing of S7 coach and nature of damage to vestibule
canvas. About common report Exh.1173 dated 20.03.2002 presence of
hydrocarbon residue of petrol and forensic examination carried out by
PW227 Mr. Talati and various reports reveal absence of any specific
substance and chemical process was followed by him. That admission of
the above witness was that diesel and petrol have different kinds of
hydrocarbons and not following separate procedure for each of such
hydrocarbon. Though PW227 followed Thin Layer Chromatography
Test and Gas Chromatography Test, he had not adopted the process of
Pyrolysis. Mr. Syed, learned counsel also canvassed submissions on
experiment and demo panchnamas drawn and report submitted by
Mohindersingh Daheran Dahiya, Deputy Director FSL, PW240. That
contention raised on testimonies of FSL experts and procedure to be
followed for analysis and report to be submitted, we are inclined to
advert to the same at later stage since such submissions are made in
detail by Ms. Nitya Ramkrishnan, learned senior counsel so as to avoid
the repetition. Likewise, testimonies of Ranjit Jodha, PW224,
Prabhatsinh Patel, PW231 were also read over along with Noel Parmar,
I.O., PW244 about preparing rough notes while vising scene of offence.
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5 Learned counsel for the defence highlighted version of Ajay
Baria, PW236 and his improvement with regard to inflammable
material viz. kerosene stated in statement recorded under Section 164 to
petrol in the court. About Exh.1151 certain features came to be noted
are about material used for vestibule of S6 thick black sheet of rubber
and signs of effect of fire and that it was not easy to cut thick vestibule
cover of S6 and about anomalies and contradictions in the testimonies of
Mukesh Nandshankar Joshi, PW225 and Mohindersingh Daheran
Dahiya, Deputy Director of FSL, PW 240 and only person who was
technically qualified to depose was Sr. Section Engineer C&W, Godhra,
PW132. Further emphasis was laid on report submitted by Satishchand
Ganpatrao Khandelwal, Deputy Director of F.S.L, PW226 and comments
of analysis and conclusion on the slide door of S6 and scratch marks
over there and measurement noted, damage to lower part of the stopper
and use of force. M.N.Joshi, PW 225 at Exh.1151 suggest a sharp edged
weapon was used for entering into vestibule by way of making a cut into
it and the above suggestion is of no help to prosecution in view of
admitted fact about presence of J.K.Bhatt, S.P. Western Railway, at the
time of visual inspection by Mr. Sarvayya.
6 In detail a reference is made to a letter addressed to the
Investigating Agency by Gangaram Jawanram Rathod PW162 about
repairs carried out for 15 coaches and coach numbers were also
examined which reveal that coach No.87206 – S7 and coach No.91229
S2 were not part of list of 15 coaches at Exh.846. In his deposition,
PW162 stated about effect of fire of S7 vestibule door.
7 Mr. Syed, learned Counsel for the defence referred to
various other witnesses for which submissions are made by
Mr.A.D.Shah, learned counsel and Ms. Nitya Ramkrishnan, learned
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counsel for the defence, for other convicts to which reference is made in
other part of the judgment.
8 According to Mr. I.H.Syed, learned counsel for the defence,
Comparative chart of versions given by Mr. Ajay Kanu Bariya,
Jabirbin Yamin Bahera and Sikandar Mohmmad Siddiq Shaikh in
their statement of Section 164 and evidence in the court, is as under:
Event No. 1
Names of persons alleged to be involved in 1st incident of stone
pelting from Signal FaliyaAjay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. 164 Version in the court Version in Sec. Version in Sec. Version in the
statement dated 9 164 statement 164 statement court
72002 dated 522003 dated 2292003
1.Mehboob Latika 1. Not named 1. Irfan Pataliya Not relevant for Not relevant for
2. Irfan Popa 2. Not named 2. Yakub Pataliya this witness this witness
3. Anwar Kalandar 3. Not named 3. Hasan lalu
4. Yunus Ghadiyali 4. Not named 4. Yunus Ghadiyali
5. Irfan Pataliya 5. Not named
6. Yakub Pataliya 6. Yakub Pataliya
7. Ibrahim Bhana 7. Not named
8. Shaukat Bibina 8. Not named
9. Shoeb Kalandar 9. Not named
10. Hussain Lalu 10. Not named
11. Mustaq 11. Mustaq
12. Raji Bhuriyo 12. Raji Bhuriyo
13. Mehboob Popo 13. Mehboob Popo
14. Mehboob 14. Not named
Chanda Additional names
1. Iliyas Mulla
2. Rafiq Bhatuk
4 (names as in 164)
+ 2 new names (in
evidence) = 6
namesEvent No. 2
It is alleged in both Section 164 statement (Pg. 12842) as well as in the
evidence before the court (Para 5, Pg. 12784) that, at the time when the
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community persons came from the station side and immediately started
pelting stones. However, this fact is omitted in the confessional
statement of Jabir.
Event No. 3
Going towards Aman Guest House at which time Shaukat Lalu shouts at
him to accompany him because of which he accompanied him.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. Version in the court Version in Sec. 164 Version in Sec. Version in the court
164 statement statement dated 164 statement
dated 972002 522003 dated 2292003
Not stated 1. Shaukat Lalu 1. Hasan lalu Not relevant for Not relevant for this
2. Mehboob Latiko 2. Maheboob Latika this witness witness
3. Ramzani
4. Rafiq Bhatuk
5. irfan Bhobha
6. Irfan Pataliya
7. Hasan Lalu
8. Jabir
Event No. 4
People going towards/inside the house of Razak Kurkur.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW
237)
Version in Sec. Version in the court Version in Sec. 164 Version in Version in
164 statement statement dated Sec. 164 the court
dated 972002 522003 statement
dated
2292003
1. Shaukat Lalu 1. Shaukat Lalu 1. Ajay Bariya Not relevant Not
2. Irfan Popa 2. Imran Sheru 2. Shaukat Lalu for this relevant for
3. Rafiq Bhatuk 3. Rafiq Bhatuk 3. Razak witness this witness
4. Jabir (following persons remained 4. Iliyas Hussain
5. Sheru outside the house of Razak Mulla
6. Ramzani Kurkur)(Para 5/ Pg. 12785) 5. Hasan Lalu
7. Hasan Lalu 1. Jabir 6. Maheboob Latika
8. Irfan Pataliya 2. Ramzani
9. Mehboob Latika 3. Hasan Lalu
4. Mehboob Latika
5. Irfan Bhopa
6. Irfan Pataliya
Event No. 5
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People going inside Razak Kurkur’s house.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. 164 Version in the court Version in Sec. 164 Version in Sec. Version in the
statement dated statement dated 164 statement court
972002 522003 dated 2292003
1. Shaukat Lalu 1. Shaukat Lalu 1. Imran Sheru Not relevant for Not relevant
2. Rafiq Bhatuk 2. Imran Sheru 2. Irfan Bhola this witness for this witness
3. Rafiq Bhatuk 3. Shaukat lalu
Event No. 6
No. Of carboys coming out of Razak Kurkur’s house.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh
(PW 237)
Version in Sec.164 Version in the court Version in Sec. Version in Version in
statement dated 164 statement Sec. 164 the court
972002 dated 522003 statement
dated
2292003
Total of 3 Carboys One carboy brought out by Total of 3 carboys Not relevant Not
brought out by Irfan Bhobho. brought out by for this relevant
Shaukat Lalu and Six carboys brought out by all Imran Sheru, Irfan witness for this
Rafiq Bhatuk at the those persons who were Bhola and Shaukat witness
time when the standing outside the house of Lalu
remaining persons Razak Kurkur including Jabir,
were outside Razak Ramzani, Hasan Lalu,
Kurkur's house. Mehboob latiko, Irfan Bhopa
and Irfan Pataliya.
1+6=7 carboys
Comment
[1] Experiment of 352002 by FSL showed 60. Ltrs. Inflammable used
in S6.
[2] On 972002, in 164 Ajay showed 3 carboys
[3] On 2472002, PW 232 Anwar Kalandar has stated 9 carboys.
[4] Jabir in his confessional statement dated 522002, stated 3
carboys initially but at S6 he has stated 5 carboys.
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[5] Prabhat Sinh and Ranjit Jodha in March 2002, in 164
statement stated 7 carboys 20 Ltrs. each
[6] Ajay has further improved in the court stating that there were
total 9 carboys out of which 2 carboys were of 5 to 10 Ltrs.
and others were of 20 ltrs.
Event No. 7
Loading of tempy with carboys and persons.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW
237)
Version in Sec.164 Version in the court Version in Sec. 164 Version in Sec. Version in
statement dated statement dated 164 statement the court
972002 522003 dated
2292003
1. Ramzani 1. Ramzani (Driving Seat) 1. Ramzani Not relevant Not
[Driving Seat] 2. Mehboob Latika (Left (Driving Seat) for this witness relevant
2. Mehboob Latika front seat) 2. Mehboob Latika for this
[Left front seat] 3. Shaukat Lalu (Right front 3. Shaukat Lalu witness
3. Shaukat Lalu seat) 4. Imran Sheru
[Right front seat] 4. Jabir (Back Side) 5. Rafik Bhatuk
4. Jabir [Back Side] 5. Hasan Lalu (Back side) 6. Yunus Ghadiyali
5. Hasan Lalu [Back 6. Sheru (Back side) 7. Irfan Bhobha
side] 7. Irfan Bhobha (Back side) 8. Ajay Bariya
6. Sheru [Back side] 8. Rafik Batuk (Back side)
7. Irfan Bhobha 9. Irfan Pataliya (Back
[Back side] Side) (Improvement)
8. Rafik Batuk [Back
side]
Comment
In 164 statement Ajay stated that, Rafiq Bhatuk brought a carboy gave it
to Irfan Bhobha who gave it to Ajay and Ajay put that in tempy. In (para
76, pg. 12830) Ajay materially improved by saying Irfan Bhobha gave a
carboy to Ajay and he omits the role of Rafiq Bhatuk. Also stated in the
same para that on the back of the tempy 7 persons were standing. In the
same para he identifies petrol through smell as it smells differently from
kerosene.
In 164 statement Jabir gave 8 persons name including Yunus Ghadiyali’s
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name which is contradictory from the statement given by Ajay.
[i] Description as to the identity of the tempy
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. 164 Version in the Version in Sec. Version in Sec. Version in the court
statement dated court 164 statement 164 statement
972002 dated dated 2292003
522003
He does not remember At that time one when Sikandar Saw one tempi
the number of the "aakhi popati was going towards vehicle of parrot
rickshaw but it's colour" tempy "Talavdi" through colour parked on the
colour was light was lying there. "Kachha Road" at "Kaccha road" and
green / "dudhi" . This that time he saw a many persons were
rickshaw was like a train standing doing stone pelting
goods carrier tempa. near "A cabin" and and damaging the
In the front of this thereafter, when train.
rickshaw tempy below he was going
the glass there was a ahead from
mosque like symbol "Kachha Road" he
and on the back side saw a "Popti
there was "nani nani" colour" tempo
jali. standing there.
Comment
The identity of the tempy by way of mosque like symbol in the front
below the glass and on the back side there was a “nani jali” is missing in
the evidence. While Ajay says that, this tempy was parked near Ali
Masjid whereas, Sikandar states that, he had seen this tempy near
Fakir ni chali and that to at the time when he had come out his
house. Ajay has further stated that, the Fakir ni chali comes between
Ali Masjid and the Railway Track. Therefore, the place where this
tempy is parked is shown at different places by the prosecution
witnesses and this is an additional circumstance which goes on to
suggest varied versions put forth by the prosecution coupled with the
circumstance of not showing the place of parking in the scene of
offence map Exh. 918, prepared by Janak Popat PW. 185.
[ii] Identity of inflammable liquid in the carboys
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Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. 164 Version in the court Version in Sec. Version in Sec. Version in the
statement dated 164 statement 164 statement court
972002 dated dated 2292003
522003
The carboy which was The carboy which was Not relevant for Not relevant
given to Ajay by Irfan given to Ajay by Irfan this witness for this
Bhopa was giving Bhopa was giving petrol witness
kerosene like smell. like smell.
Comment
Ajay has admitted that, he knows the difference between petrol and
kerosene. Para 35 pg, 12802. However, in the cross examination he
has stated that all carboys were smelling same liquid and was same
(pg. 12836) and he further stated that, the smell which was coming
out from carboys was that of petrol. He has denied the fact that, he
had stated before the magistrate in his sec. 164 statement dated 97
2002, that, the carboys were filled up with kerosene (para 76, pg.
12830).
[iii] Nature, Number of weapons carried in the tempy
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. 164 Version in the court Version in Sec. Version in Sec. Version in the
statement dated 97 164 statement 164 statement court
2002 dated 522003 dated 2292003
Out of the persons Shaukat Lalu and Imran Not relevant for Not relevant
sitting in the front side Sheru had one pipe this witness for this witness
of the tempy, Mehboob each, Mehboob Latika
Latika had a long knife and Jabir had one long
and Shaukat Lalu had a knife each.
pipe.
Comment
As per Sec. 164 statement of Cr.P.C., people sitting in the back side of
the tempy are not shown to be carrying any weapon. However, in the
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evidence it is shown that, Imran Sheru and Jabir are travelling in the
back side of the tempy and for the first time it is appearing that, both are
carrying some kind of weapon. This has been deliberately done so as to
achieve consistency with the confessional statement dated 522003 of
Jabir where Jabir is shown to have been carried a long knife at the time
he has got onto the vestibule passage after Mehboob Latika has allegedly
made a cut in the vestibule cover. Further, as it will be shown
subsequently the role attributed to this Imran Sheru in Sec. 164 Cr.P.C.
statement was of using a pipe to break the windows from S2 to S6.
However, this version was improved in the evidence to suggest that,
Imran sheru was using the pipe to break open hose pipes from S2 to S6.
But in either of the circumstances, prosecution faces the challenge to
attribute possession of one pipe before Imran Sheru has reached S2
coach. In the sequence of event as manufactured by the prosecution, it
was not possible for Imran Sheru to obtain a pipe any time prior to the
departure of the tempy from near Aman Guest House. In view of this fact
the prosecution, in order to achieve flawless consistency has chosen to
attribute a pipe at the time when Imran Sheru is to have boarded the
tempy which in itself an improvement over his Sec. 164 Cr.P.C.
statement.
Event No. 8
Knowledge of the place where the tempy was going
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. Version in the court Version in Sec. 164 Version in Sec. Version in the
164 statement statement dated 164 statement court
dated 972002 522003 dated
2292003
Ajay did not know Ajay did not know as Jabir knew that, the Not relevant for Not relevant for
as to where was to where was the tempy was being this witness this witness
the tempy being tempy being taken taken to behind “A
taken to. to. Cabin”
Comment
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It is the specific case of Ajay that, he had no knowledge of the place
where the tempy was being taken to. However, it is stated by Jabir in his
confession dated 522003 that at the time when Imran Sheru, Irfan
Bhola and Shaukat Lalu had taken out the carboy from Razak Kurkur’s
house and loaded the same on the tempy then Razak Kurkur had told
that, “take this tempy to behind A Cabin”. In this view of the fact, if Ajay
and Jabir are both present near the tempy, then it is unlikely that, Ajay is
going to miss this significant instruction even by Razak Kurkur. In fact,
Ajay has not even stated about the fact that, whether at the time of
loading of the carboys as allegedly brought out by the accused persons,
whether Razak Kurkur had come out of his house even once.
Ajay admitted that, he has stated role of Razak Kurkur in his deposition
in the court for the first time and not in any earlier statement.
Event No. 9
Travelling and stoppage of tempy with carboys and persons.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec.164 Version in the court Version in Sec.164 Version in Sec. Version in the
statement dated 97 statement dated 5 164 statement court
2002 22003 dated 2292003
At the time when At the time when When the tempy when Sikandar Saw one tempo
the rickshaw came the rickshaw came was headed towards was going vehicle of parrot
from the alley to the from the Aman Ali Masjid side at towards "Talavdi" colour halted on
road, the Sabarmati Guest House on to that time Salim through "Kachha rough road
Express Train had the road, the Panwala and Razak Road" at that time
restarted and the Sabarmati Express were coming on he saw a train
last coach of Train was leaving M.A.T. Razak was standing near "A
Sabarmati Express and the last coach of sitting behind (on cabin" and
was leaving the Sabarmati Express one side) holding a thereafter, when
platform end and at was leaving the carboy. The tempy he was going
that time the people platform end. At was taken from "Ali ahead from
were running helter that time a mob was Masjid" and "Kachha Road" he
skelter. At the time running with the reached behind "A saw a "Popti
when the rickshaw train. The tempy cabin" colour" tempo
reached near the after passing besides standing there.
"nala", Sabarmati Bhamaiya nala, was
Express Train had taken near the
stopped. This houses of fakir ni
rickshaw was taken chali from A Cabin
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from A Cabin to side.
near Ali Hussain
Masjid and it was
parked there.
Submissions
[i] Ajay has been cross examined as to the location of this tempy at
the time when it was parked near Ali Masjid. According to him if one is
facing towards the track from the place where the tempy was parked
then Ali Masjid would be on the left hand side. Fakir ni chal would be
somewhere in the middle while proceeding from Ali Masjid towards the
railway track and while proceedings from the place where tempy was
parked to the railway track, Ajay admits that he had crossed Fakir ni
chal. (Para 76, Pg. 12830) In view of this fact, if the version of Sikandar
is seen then it becomes clear that, it would be highly unnatural for
Sikandar to have noticed a tempy lying towards the Ali Masjid and
therefore, Sikandar shifts location of this tempy to some closer to Fakir
Ni Chal and it is because of this reason that, the scene of offence map
being Exh. 918 drawn on 3042004.
[ii] Ajay has made significant improvement in respect of the
movement of the persons on the signal faliya road at the time when the
tempy is allegedly taken from Aman Guest House. Even as in the 164
Cr.P.C. statement, Ajay has talked about random movement of the
persons on the road whereas, in his evidence, Ajay has attempted to
show a purposeful movement of the persons as following the train which
is in the process of leaving the Godhra railway Platform. Ajay’s
description of these persons present on the signal faliya road “as a mob”
also is a significant improvement over his 164 Cr.P.C. statement which is
nothing but an attempt to achieve consistency in the version of
prosecution case. This contradiction in respect of the mob running with
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the train has been proved through the recording officer Mr. Noel Parmar
(PW. 244/ Exh. 1406/ Vol. 39/ Para 159/ Pg. 13234).
[iii] Ajay’s description in reaching near the houses of “fakir ni chali” is
also a material improvement which is deliberately made to land
credence to the version of Sikandar which was brought on record only
on 2192003. It is significant to note that, Sikandar (PW. 237) has
specifically spoken about the presence of one “Popti colour tempy” on
the mud road near his house. (PW. 237/ Exh. 1252/ Vol. 38/ Para 4/ Pg.
12846) it is in this context that, absence of the location of both the place
where the tempy had stopped behind “A cabin” as well as the place of
location of “fakir ni chali” in the map of scene of offence prepared on 30
42004 (Exh. 918/ Vol. / Pg. ) by Janakbhai Popat (PW. 185/ Exh.
917/ Vol. 36/ Pg. 1211412121)
[iv] The prosecution has also deliberately not brought on record the
location where the tempy is set to have been parked behind “A cabin”
even though there is a specific case of the prosecution that, large number
of police personnel were present in an around “A cabin” and that, there
is a specific allegation that, some of the police personnel had fired live
rounds in the air towards Ali Masjid side as well as had carried out tear
gas in the direction of Ali Masjid. Despite such intensive police action,
none of those police personnel speak about the presence of any tempy or
even a vehicle, much less a popti colour tempy in that direction. Further,
it is the specific case of the prosecution that, the curfew came to be
imposed in Godhra Town at 11:00 Hrs. on 2722002 and in that view of
the fact as well it would have been impossible for any person to have
taken out the tempy from near Ali Masjid if any tempy would have been
parked there as the same would have been completely against the
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case in the police statement dated 2472002 of Anwar Kalandar (PW.
234) that, he had seen a tempy near the “garnala” and he had heard
that, this tempy was used for transportation of petrol. But in view of
categorical deposition of the members of Godhra Town Police Station
who had parked their mobile vehicles near “garnala”, prosecution was
faced with no other alternative but to jettison this version of Anwar
Kalandar and go with the version of Ajay Bariya of taking the tempy near
Ali Masjid. However, as it has been shown in the preceding paragraph
that, location of Ali Masjid was unsuitable for implanting Sikandar as a
credible witness as well as in view of other circumstances and therefore,
Ajay has attempted to align his version to the version of Sikandar and
has shifted the place of parking of this tempy from near Ali Masjid to
near the house of “fakir ni chali”.
[v] The prosecution can very well say that, the tempy which was used
in the transportation of the carboys to behind “A cabin” would have been
removed by the accused persons well in time. However, this fact has to
be averred by the prosecution after carrying out diligent and honest
investigation in to this aspect which is not the case. It would be against
human conduct for the person who is driving this tempy not to carry the
ignition key with him unless leaving the ignition key in the tempy was
part of the original conspiracy. However, investigation is woefully silent
on this aspect as well.
Event No. 10
No. of carboys unloaded from the tempy near “A Cabin” house.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW
237)
Version in Sec. 164 Version in the court Version in Sec. 164 Version in Sec. Version in
statement dated 97 statement dated 52 164 statement the court
2002 2003 dated 2292003
1. Shaukat Lalu - 1 1. Shaukat Lalu (Right Shaukat lalu ran Not relevant for Not
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carboy front seat) towards the train this witness relevant
All persons sitting in 2. Ramzani (Driving with a carboy and for this
the back side came out Seat) shouted that all witness
with one carboy each: 3. Mehboob Latika (Left should take the
2.Jabir (Back Side) front seat) carboy and follow
3.Hasan Lalu (Back 4. Jabir (Back Side) him. Then Jabir,
side) 5. Hasan Lalu (Back Anwar Kalandar,
4.Sheru (Back side) side) Anwar Bala, Yunus
5.Irfan Bhobha (Back 6. Sheru (Back side) Ghadiyali, Irfan
side) 7. Irfan Bhobha (Back Pataliya having stick,
6.Rafik Batuk (Back side) pipe and Dhariya in
side) 8. Rafik Batuk (Back their hands followed
Total 6 carboys side) Shaukat to S2.
9. Irfan Pataliya (Back
Side)
Comments:
When this evidence of Ajay even in Sec. 164 statement is considered in
so far as 3 carboys loaded in the tempy from the house of Razak Kurkur,
there is an unexplained phenomenon of 6 carboys emerging near the “A
cabin”. Even otherwise, when the total number of carboys unloaded near
“A cabin” is considered, the same comes out as 9 in number and the
prosecution has failed to explained this circumstance. Further, in view of
this discrepancy in the number of carboys loaded and unloaded from the
tempy, it is not a case where the number of carboys loaded into the
tempy near Aman Guest House and the number of carboys unloaded
near the “A Cabin” can be said to be proved by cogent and reliable
evidence. Further, in this context it is relevant to point out that, Jabir
has stated that, 3 carboys came to be loaded in the tempy (Exh.
1469/Vol. 39/ Pg.13338) and he has omitted to say as to the number of
carboys that came to be unloaded near “A Cabin”. However, Jabir is
categorical that, 5 carboys went inside the coach, 2 from the vestibule
side and 3 from the SE door side. In view of this discrepancy as well,
the prosecution has failed to cogently establish this charge as well.
Event No. 11
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Attack on S2 coach.
Ajay Kanu Bbariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh
(PW 237)
Version in Sec. 164 Version in the court Version in Sec. Version in Version in
statement dated 972002 164 statement Sec. 164 the court
dated 522003 statement
dated
2292003
Ajay accompanied Shaukat Ajay accompanied Anwar Kalandar, Comments Comments
Lalu because of fear. Shaukat because of fear Anwar Bala, Yunus offered offered
Accused persons who were due to the foul language Ghadiyali and herein below. herein
pelting stones on the train used by shaukat. Irfan Pataliya were below.
and breaking the S2 coach At the time when these breaking the
windows: persons reached near S2 closed doors and
1. Mehboob Chanda coach, then heavy stone windows with
2.Mehboob Popa pelting was going on. sticks, pipes and
3. Irfan Patadiya At that time following dhariya.
4. Kadar Patadiya persons were breaking the
5. Shoeb kalandar windows with sticks,
6. Anwar Bala pipes and Dhariya.
7. Anwar Kalandar 1. Mehboob Popa
8. Yunus Ghadiyali 2. Mehboob Chanda
9. Mustaq 3. Shoeb Kalandar
10. Bhuriyo Raji 4. Yunus Ghadiyali
11. shaukat Bibina 5. Kadar patadiya
12. Babu Katariya 6. Ayub Patadiya
7. Sikandar
Comments
[i] There is contradictory evidence emerging from the prosecution
evidence in respect of the factum of stone pelting on S2 coach. Ajay in
his 164 Cr.P.C. statement as reiterated in his evidence (Para 6/ Pg.
12785) talks about there being heavy stone pelting on S2 coach whereas
the version given by a passenger of S2 coach (PW. 216/ Exh. 1115/ Vol.
37/ Para 3/ Pg. 12429) does not speak of any stone pelting.
[ii] Even though there is no mention of Sikandar or role of any other
person apart from the 12 persons named in the Sec. 164 Cr.P.C.
statement, Ajay in his evidence for the first time has specifically
introduced Sikandar to be present near S2 coach. This is in furtherance
of the mischief perpetuated by Ajay in naming Sikandar for the first time
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in his police statement dated 382002, whereas, he admits in the cross
examination that, he does not know any person by the name of Sikandar
(Para 15/ Pg. 12793). Further, after the investigation and the
prosecution agency were able to achieve their desired result from
Sikandar by keeping a sword of implication hanging over his head, the
investigation and the prosecution have shown the presence of this got up
witness Sikandar (PW. 237) to be near S6 coach and not near S2 coach.
This was done specifically to retain the veracity of Ajay in so far as him
naming Sikandar as an accused is concerned and also achieving the goal
of dissociating the witness Sikandar (PW. 237) from Ajay. Further, the
investigation reveals that, this Sikandar as an accused came to be
introduced right from the first supplementary charge sheet dated 209
2002 and even after the so called discovery of this witness Sikandar on
2192003, the investigation agency took no steps to have this Sikandar
identified at the instance of Ajay till 942004. Even this TIP proceeding
is not brought on record of the trial or forwarded along with the charge
sheet. The TIP proceedings would have reflected the nature of details
available with the investigation agency in respect of this Sikandar who
was forwarded for the TIP which was done in the presence of Ajay.
Further, this Ajay who otherwise has such exceptional memory does not
remember the date and year in which the TIP of Sikandar was held.
(Para 17/ Pg. 12794) Further, Ajay has also admitted that, he had stated
in his police statement that, he had seen Sikandar at the time of the
incident who was about 18 years in age, thin body and was of dark
complexion (Para 61, Pg. 12821)
[iii] Despite Ajay definitely naming the presence of Sikandar near S2
for the first time in his evidence, it is hardly surprising that, Sikandar
omits to state about his presence either in Sec. 164 Cr.P.C. statement or
in his evidence before the court. This suspicious conduct of the
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prosecution in making an improvement by Ajay to show the presence of
the accused Sikandar near S2 so as to exonerate the witness Sikandar
whose presence is shown near S6 coach ought to be viewed with grave
suspicion.
Event No. 12
Exchange of carboys between the accused persons
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW
237)
Version in Sec. 164 Version in the court Version in Sec. Version in Sec. Version in
statement dated 164 statement 164 statement the court
972002 dated dated
522003 2292003
1. Mehboob Chanda 1. Mehboob Chanda taking Comments Comments
taking carboy from Ajay carboy from Ajay and gave offered herein offered
2. Hasan Lalu gave his his pipe to Ajay below. herein
carboy to Irfan Bhobha 2. Hasan Lalu gave his carboy below.
3. Mehboob Latika gave to Irfan Bhobha
his carboy to Shaukat 3. Mehboob Latika gave his
Lalu carboy to Shaukat Lalu
Event No. 13
Throwing of articles inside the S2 coach
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW
237)
Version in Sec. 164 Version in the court Version in Sec. Version in Sec. Version in
statement dated 164 statement 164 statement the court
972002 dated dated
522003 2292003
Mehboob Chanda Mehboob Chanda after Comments Comments
threw one burning dousing “godadi and lugda” offered herein offered
“lugda” like article with the liquid from the below. herein
inside the S2 coach carboy and after setting it below.
from the broken on fire, had thrown it inside
window and this S2 coach with the help of
burning “lugda” was the pipe which was thrown
thrown back outside by back by some passenger.
the passengers.
Comments
This fact of the burning article having been thrown back by the
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passenger of S2 coach is contradicted by a passenger of S2 coach (PW.
216/ Exh. 1115/ Vol. 37/ Para 3/ Pg. 12429) who says that though a
burning rag had come inside but the passengers of S2 coach had got
together and doused it with the help of water. In view of this version
there is no question of any article having been thrown back outside by
the passengers of S2 coach and even this sequence of event, even though
appearing in the investigation as early as 2942002 in the police
statement of (PW. 216) suggests that, the investigation agency had
recorded the police statement of Ajay after carefully taking into account
various aspects as revealed by other passengers and circumstances which
were incrementally built up by the investigation agency.
Event No. 14
Movement towards S6
Ajay Kanu Bbariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. Version in the Version in Sec. Version in Sec. 164 Version in the
164 statement court 164 statement statement dated court
dated 972002 dated 522003 2292003
These persons These persons They also were When Sikandar reached “A Sikandar climbed
went towards S6 went towards breaking closed cabin” through “Kachha the metal heap
and at that time S6 and during doors and Road” at that time he saw and saw that,
the stone pelting that time windows of the Razak Kurkur, Bilal Badam, Razak Kurkur,
was on and sheru who train and at that Honey Badam, Siddiq Bilal Badam,
sheru was had a pipe, he time a mob of 250 Badam, Yaqub Patadiya, Honey Badam,
hitting windows was trying to to 300 people Ayub Patadiya, Kadir Siddiq Badam,
of any of the break the came and from Patadiya, Faruq, Rahub Aiyub Pataliya,
coach between hose pipe there they went kamli and Salim Panwala Kadir Pataliya,
S2 to S6 and between S2 between S6 & S7 were causing damage to the Yakub Pataliya,
attempting to to S6 coaches. coach. train. Irfan Pataliya,
break it by way Rauf Kamli,
of a pipe. Farukh were
damaging the
train with the iron
rods.
Comments
[i] In the 164 Cr.P.C. statement Ajay is referring to some damage
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being cause on the window of one coach between S2 to S6 whereas, in
the evidence Ajay has improved it to suggest that, Imran Sheru was
hitting on the hose pipes between S2 to S6 coaches. This is a significant
improvement made at the instance of the prosecution so as to align
Ajay’s version with the factum of replacement of two hose pipes which
had come out in the evidence of the driver Mr. Rajendra Jadav (PW.
228) that he had learnt about the replacement of two hose pipes from
one Ravindra Khushwaha of the carriage and wagon department Godhra
Railway Station (PW. 228/ Exh. 1189/ Vol. 37/ Para 6/ Pg. 12615)
[ii] This version of Ajay also becomes extremely improbable for the
simple reason that, Ajay who otherwise has given meticulous details
about his having viewed the entire incident with specific role and has
described the exact nature of weapons and articles carried as well as the
place of different incident, however, he has failed to give his own
location at the time when he is describing this particular incident of
Imran Sheru trying to break the hose pipes. Further, even without this
location, it is hard to imagine that, when Ajay is giving descriptions of
movements of a group of accused persons then how has Ajay kept track
of the movement of Imran Sheru specifically that to threw the entire
duration from S2 to S6.
Event No. 15
Role attributed to Razak Kurkur near S6
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Version in the court Version in Sec. Version in Sec. 164 Version in the court
Sec. 164 164 statement statement dated
statement dated 2292003
dated 522003
972002
Nothing is When Ajay reached near S6 Nothing is Razak Kurkur and Thereafter, Razak
stated coach then towards the stated about Karim Panwala Kurkur climbed the
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about this engine side door of S6 this climbed the coach stair of S6 coach and
coach, Razak Kurkur was and Razak Kurkur was seen pouring
standing on top of the and Salim Panwala petrol like liquid from
footsteps, and was holding were gave support carboy inside the
a carboy and was pouring and Razak Kurkur coach from open
the petrol in the S6 coach emptied the carboy window, Salim
and all this while, Salim in the window near Panwala was
Panwala was supporting the door where supporting the carboy
the carboy from below. passengers are upward.
sitting.
Comment
[1] Ajay does not speak of any role in respect of Razak Kurkur both in
his 1st and 2nd police statement as well as in his 164 Cr.P.C. statement
dated 972002. However, after the police recorded a police statement of
one Poojaben PW. 81 dated 1172002 describing pouring of some
inflammable material in the SW side toilet of S6 coach. Thereafter, the
police recorded the 161 Cr.P.C. statement of one Iliyas Mullah who even
though has turned hostile in the court, however, the prosecution has put
the original version in the CrossExamination which reveals that, this
Razak Kurkur was pouring inflammable liquid in the 1st compartment
and was aided by Salim Panwala. Immediately thereafter, Ajay’s 3rd
police statement was recorded on 382002, wherein, role of standing on
the SW side door steps and pouring of inflammable liquid into a broken
window is attributed to Razak Kurkur and Salim Panwala for the first
time. This story was also spoken by the investigation agency through
Jabir in the confessional statement dated 522003 and also through
Sikandar in his police version dated 2192003 recorded belatedly and
before the Magistrate on 2292003. However, before all this the
investigation agency had also recorded the police statement of many
passengers travelling in the first compartment who did not utter a single
word in respect of this sequence of event as belatedly inserted in the
investigation only with a view to implicate a particular persons.
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[2] Sikandar has not specified about the window in his Sec. 164
Cr.P.C. statement dated 2292003 however, the prosecution has
attempted to fill in this lacunae in the prosecution case by trying to
specify the place which in turn has not been corroborated by the
passengers travelling in the first compartment.
Event No. 16
Cutting of vestibule cover, climbing and entering coach S6.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. Version in the Version in Sec. 164 Version in Sec. 164 Version in the
164 statement court statement dated 52 statement dated 22 court
dated 2003 92003
972002
1. Reached 1.After reaching Irfan Patadiya, Yunus Maheboob Latika At that time
near S6 and cut S6, Mehboob Ghadiyali, Anwar cut the curtain Mehboob Latika
the curtain Latika made holes kalandar, Anwar Bala, between two had cut the curtain
between the S6 in the carboy with Mehboob Popa all of coaches with knife between two
and S7 with his knife and cut them came near S6 and thereafter, coaches by a knife.
knife and they the cloth curtain following them. And Maheboob Latika, Before that,
climbed and between S6 and S7 placed the carboys Jabir Behra and Mehboob Latika
Jabir also with knife and there and Mehboob Shaukat Lalu had made holes
climbed and Mehboob Latika Latika made holes in carrying a carboy with knife like tool
was trying to entered and after the carboy and then each entered into in the carboy
break door of him Jabir also went between S6 and the coach. which was kept on
S6 and made went inside. Both S7 and cut the canvas. At that time Rafiq ground. After
holes on the top of them kicked the From there Mehboob Bhatuk, Irfan tearing the curtain
of the carboy vestibule door and Latika entered first Bhopa, Imran Mehboob Latika
with knife. broken the stopper followed by Jabir. And Sheru, Hasan Lalu, entered the coach
and opened the then by kicking broke Rauf Kamli, Irfan and then Jabir
2. Mehboob door. At that time the vestibule door. Patadiya, Ayub Bahera had also
Latika gave one Shaukat Lalu gave Shaukat lalu gave two Patadiya were gone inside.
carboy to Jabir one carboy to carboys to each standing on the At that time
and Shaukat Mehboob Latika persons and Jabir ground near the Shaukat Lalu had
Lalu also and one carboy to threw his knife on the coach and in the supplied one
climbed the Jabir and from the ground and caught the meantime the door carboy each to
coach and at same route carboy and shaukat was opened from both of them.
that time Shaukat also went lalu also came inside inside then Rafik Thereafter,
Shaukat Lalu inside and Rafit and open the door Bhatuk, Irfan Shaukat Lalu also
opened the Bhatuk gave towards A cabin and Bhopa, Imran Sheru went inside. At
main door of S6 Shaukat one from there Imran carrying one carboy that time Rafiq
towards "A carboy. Sheru, Rafik Bhatuk each entered the Batuk gave one
cabin" and and Shaukat Lalu coach from the carboy to Shaukat
Rafik Bhatuk 2. After going came inside with open door. Faruq Lalu and
gave carboy inside Shaukat petrol carboy. From Bhana and Bilal thereafter, Rafiq
after making Lalu opened the out side Hasan Lalu, Haji also came. Bhatuk, Irfan
holes and Rafik Godhra side main Irfan Patadiya were Bhobha and Imran
Bhatuk climbed door and from pouring petrol from Sheru went inside
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and went into there Rafik Bhatuk, broken window. That the S6 coach and
the door and Irfan Bhobha and time the all got down the S6 Godhra side
Sheru and Irfan Imran Sheru from off side and door was opened
Bhobha also entered with one immediately the coach and from there
climbed and carboy each. caught fire and the Rafiq Bhatuk, Irfan
went inside. passengers started Bhobha and Imran
running. They caught Sheru entered the
passenger and Jabir coach with a
shaukat Bibino and carboy each.
shaukat Bhano and
Ashiq Hhussain looted
gold rings and gold
chains from the
passengers and also
hit him.
Comment
[i] The incident of S6 described by Ajay in his 164 Cr.P.C. statement
is factually contrary to what he has stated in his deposition in the court.
Further, Ajay has specifically admitted that, in his version given before
the magistrate on 972002 he has failed to give name of any person as
being responsible for cutting the cover between the S6 and S7 coach.
(Para 77/ Pg. 12831) Ajay has specifically admitted that, a total of 6
persons had gone inside the coach. (Para 77/ Pg. 12831)
[ii] Ajay in his statement says total 6 persons with 1 carboy each
entered into the S6 coach while Jabir in his confessional statement says
total 5 persons with 1 carboy each entered into the S6 coach and
Sikandar in his statements says total 6 persons with 1 carboy each
entered into the S6 coach.
[iii] As per the version of PW. 232 Iliyas Mulla he along with Shaukat
Bibino and Shaukat Bhano went home before the coach caught fire
therefore there is no question of them remaining on off side for the
alleged loot.
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[iv] It is stated by Ajay in the cross examination that, he was standing
alone on the metal heap near the A cabin at the time of witnessing the
incident. However, the place of witnessing the incident as shown by
Sikandar is also the same metal heap and it is clear that, these two facts
cannot coexist.
[v] Sikandar has clearly continued the story of Ajay in terms of the
total number of people who got inside the S6 coach and the total
number of carboy carried by them which fact is unsupported by the
version given by Jabir.
[vi] Sikandar had for the first time introduced the presence of Bilal
Haji and Faruq Bhana at the scene of the offence in his 164 statement
dated 2292003. However, the prosecution after realizing this material
improvement in the prosecution story in respect of the presence of Bilal
Haji and Faruq Bhana which was not spoken to by any of it’s other
witnesses, as chosen to exercise it’s influence and drop these two names
in the evidence of Sikandar.
Event No. 17
Throwing of the burning rag and S6 setting on fire
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Shaikh (PW 237)
Version in Sec. 164 Version in the court Version in Sec. Version in Sec. 164 Version in the
statement dated 164 statement statement dated 229 court
972002 dated 2003
522003
1. At that time 1. At that time Hasan Not stated When Sikandar was Hasan Lalu,
Hasan lalu had Lalu, Irfan Pataliya standing on the stone Ramzani and
thrown a burning and Ramzani were heap at that time Faruq Irfan
rag from a broking sprinkling petrol from Bhana and Bilal Haji Patadiya
window and after outside from broken reached there. At that were pouring
some time there was window inside the time Hasan lalu, petrol like
smoke and there coach and Hasan Lalu Ramzani and Irfan substance in
was lot of burnt a rag and threw Patadiya were pouring the broken
commotion/chaos. inside the S6 coach petrol like substance on window.
2. He doesn’t knew from the broken the broken window of
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how and when the window. Immediately the coach.
persons of S6 coach there was a “????” and He saw Hasan Lalu
got down and the there were shouts in throwing burning cloth
coach had started the coach. inside the coach from
catching fire slowly the broken window.
and slowly.
Comment
[i] Sikandar has merely spoken about the role of one person in
throwing the “Lugda” in to the coach in his 164 Cr.P.C. statement
whereas, in order to achieve consistency with the prosecution version of
both Ajay as well as Jabir, this witness has improved and has also
introduced the names of Irfan patadiya and Ramzani as being present
with Hasan Lalu at the time throwing of “Lugda” into the coach.
Event 18
Incident of Fire in S6.
Ajay Kanu Bariya (PW 236) Jabirbin Yamin Sikandar Siddiq Bhikhabhai
Shaikh (PW 237) Harmanbhai
Bbariya
Version in Sec. Version in the Version in Sec. 164 Version in Version version in the court
164 statement court statement dated 52 Sec. 164 in the
dated 972002 2003 statement court
dated
2292003
1. At that time 1. At that time 1. From outside At the time when he
Ajay was Ajay was Hasan Lalu and Irfan was standing near
standing in front standing on the Patadiya were "A cabin" he had
of S6 and he metal heap. With sprinkling petrol seen the mob set
came to the door a view to see that from the broken the coach on fire.
to see what they what these windows at that time Following persons
are doing? He persons are doing Jabir and others were near the
saw that, these inside, went to descended on the off coach. Hasan Lalu,
people were the open door of side and Shaukat Lalu,
sprinkling S6 but nobody immediately there Mahommad lalu,
kerosene in the was seen. Neither was fire in the coach Kadir Pataliya, Babu
coach from the persons who and from there Pataliya, Soeb
carboy and went inside nor passengers were Kalandar, Yunus
Hasan Lalu and the passengers running. Ghadiyali,
Ramzani were were seen but he 2. One of the Maheboob Popa,
sprinkling saw the petrol passenger was held Salim Panwala,
kerosene from which was and was assaulted. Shaukat Bibino,
outside the sprinkled. Jabir, Shaukatbibi Shaukat Bhano,
coach. 2. The second and her nephew Salim Panwala and
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event of breaking Ashik Hussain had Ramzan Bibino. (no
2. At that time window is not in looted the gold rings specific role
Anwar Popa, the deposition. and chains from the assigned to anybody
Yunus Kalandar passengers. though the witness
and Yakub claims to know the
Pataliya were accused)
breaking
windows and
doors of S6
Comment
[1] In the statement of 164 of Cr.P.C. Ajay has stated that, he was
standing in front of S6 coach and saw from the door that, the persons
named by him are sprinkling kerosene in the coach and Hasan lalu and
Ramzani were sprinkling kerosene from a broken window outside the
coach. Also Ajay has stated that, the named persons were pelting stones
on S6 coach. Whereas, in the evidence, Ajay has stated that, he was
standing on the metal heap and he went to see what the persons inside
the coach were doing from the door but he saw nobody in the coach and
saw petrol which was sprinkled. Also Ajay has not stated the incident of
stone pelting on S6 in his deposition as he has stated in statement of 164
of Cr.P.C.
[2] Bhikha Harman claims to have seen the incident from near the “A
cabin”. The VHP witnesses who have claimed to be near the “A cabin”
neither noticed presence of Bhikha nor Bhikha noticed presence of the
other VHP witnesses. He has stated that, a mob has set the coach on fire.
He has further stated that, 13 persons mentioned in the table were
present near the coach. He has not specified any role played by any of
these 13 persons in the commission of offence. Bhikha has not stated
anything in respect of the way offence was alleged to have been
committed as propounded by the prosecution through it’s witnesses. The
version of Bhikha Harman destroys the case of prosecution and in the
process also destroys his own evidence.
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Event 19
Incident stopping of fire engine
Ajay Kanu Bariya (PW 236) Jabirbin Sikandar Siddiq Shaikh (PW 237)
Yamin
Version in Sec. 164 Version in the court Version in Version in Sec. Version in the
statement dated 9 Sec. 164 164 statement court
72002 statement dated 2292003
dated 52
2003
He started running Outside also people Not stated Not stated about Not stated about
towards signal were shouting about the the same the same
faliya and saw there “bhago bhago” and same
that Rafik Bhatuk Ajay went home
and mob were from “A Cabin”.
stopping fire engine
and pelting stones
on it.
Comment
[1] In order to achieve consistency in the prosecution version more
particularly in respect of role belatedly attributed to Bilal Haji in clear
contradiction to the contents of the fire brigade “occurrence book”, the
prosecution has been able to achieve consistency by getting Ajay to
improve upon it’s version and omit the entire event of him having
witnessed the stoppage of the fire brigade.
PART IVB
LIST OF CITATIONS RELIED ON BY MR IH SYED, LEARNED COUNSEL
FOR THE DEFENCE ARE AS UNDER:
Sr. Parties Citation Issue
No.
1 Noushad @Noushad 2015(1) Crimes 32
Pasha v. State of [SC]
Karnataka
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2 Adambhai (2014)7 SCC 716 SC expressed anguish
Sulemanbhai Ajmeri Para 225 about the
v. State of Gujarati incompetence with
which the Investigating
Agency conducted the
Investigation of the
case of such a grievous
nature, involving the
integrity and security
of the nation. Instead
of booking the real
culprits responsible for
taking so many
precious lives, the
police caught innocent
people and got
imposed the grievous
charges against them,
which resulted in their
conviction and
subsequent sentencing
- law on conspiracy
and confession.
3 State of M.P. v. 2014(13) SCC 308 Principles of beyond
Dharkole alias paras 9, 12 reasonable doubt.
Govind Singh & Ors.
4 Karan Singh V. (2013)12 SCC 529 On fair investigation
State of Haryana Paras 16 & 19
5 Sujit Biswas v. State 2013(12) SCC 406 Suspicion cannot take
of Assam [paras 13 to 17] place of proof - graver
the crime greater
should be the standard
of proof.
6 Sunil Kundu v. State (2013)4 SCC 422 Defects in investigation
of Jharkhand Para 29 can be ignored if other
evidence is of sterling
quality - lapse and
irregularities in
investigation cannot be
ignored if it goes to the
root of the matter and
if they dislodge the sub
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stratum of the
prosecution case -
improvements made in
the court to support
prosecution case -
evidence of eye
witnesses does not
inspire confidence.
7 Narendrakumar v. 2012(7) SCC 171 Prosecution has to
State of NCT of stand on his own legs
Delhi and cannot take
support of weaknesses
of defence.
8 Sunilkumar 2010(13) SCC 657 Law in respect of
Shambhu Dayal witnesses making
Gupta material improvements
in comparison to their
earlier statements or
other evidence with a
view to support the
case of prosecution to
make it consistent.
9 Aloke Nath Dutta & (2007)12 SCC 230 3 tests of confessional
Ors. vs. State of Paras 87 to 90, 100 statement [i]
West Bengal & 106 voluntariness [ii]
truthfulness and [iii]
corroboration / inter se
contradiction with
other evidence.
10 Mousam Singha Roy 2003(12) SCC 377 Graver the offence
v. State of West [paras 27, 29, 31] stricter should be the
Bengal degree of prove -
moral conviction.
11 Krishnan & Ors. v. 2003(7) SCC 56 Witnesses are the eyes
State represented by paras 2124 and ears of justice.
Inspector of Police
12 Jogindra Nahak & (2000)1 SCC 272 Sec.164 statements not
Ors. v. State of Paras 2224 sponsored by the
Orissa investigation agency
effect on prosecution
case / malice in law of
investigation agency
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not following the law.
13 Kantilal Kalidasbhai (1999)1 GLH 964 Submission of case
& Ors. v. State of paras 1 to 6 diary is mandatory
Gujarat along with the charge
sheet otherwise
contempt.
14 Rampal Pithwa 1994 Suppl. (2) SCC Duty of the I.O. is to
Rahidas & Ors. v. 73 act fairly and honestly
State of Para 37 and shall not re3sort to
Maharashtra fabricating false
evidence to secure
conviction otherwise it
will shake the
confidence of a
common man in
criminal justice system.
15 Dilavar Hussain v. (1991)1 SCC 253 Although, guilty should
State of Gujarat Paras 3, 4, 18 & 19 not escape but on
reliable evidence,
truthful witnesses and
honest and fair
investigation. No free
man should be
amerced by framing or
to assuage feelings as it
is fatal to human
dignity and
de3structive of social,
ethical and legal norm.
Heinousness of crime
or cruelty in its
execution however
abhorrent and hateful
cannot reflect in
deciding the guilt.
16 Surajmal v. State of 1979(4) SCC 725 Witnesses making two
Delhi [Admn.] inconsistent statements
in their evidence either
at one stage or at two
stages, the testimony
of such witnesses
becomes unreliable
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and unworthy of
credence - no
conviction can be
based on that.
17 State of U.P. v. 1971(2) SCC 42 Nonexamination of
Jagoo alias Jagdish material witnesses by a
prosecution who were
essential for unfolding
the narrative - truth
will seriously affect the
trial.
18 State of (1975)1 SCC 647
Maharashtra v.
Sindhi alias Raman
19 State of U.P. v. 1971(2) SCC 42 Nonexamination of
Jagoo alias Jagdish material witnesses by a
prosecution who were
essential for unfolding
the narrative - truth
will seriously affect the
trial.
20 Haricharan Kurmi & AIR 1964 SC 1184 Confessional statement
Anr. v. State of Paras 76 can be only used by
Bihar the court if on the
basis of other evidence
the court concludes to
convict a person and at
that point of time the
court can use the
confessional statement
only to lend assurance
to the decision.
21 State of U.P. v. AIR 1964 SC 221 Prosecution
Bhagwant Kishore manipulated or shaped
Joshi up by reason of
irregularity to throw /
cast a reasonable
doubt about the
prosecution story or
seriously prejudice the
defense - effect of.
22 Tahsildar Singh & AIR 1959 SC 1012 Section 162 statements
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Ors. v. State of U.P. can be only used to
contradict and to
impeach upon the
credibility of a
witnesses.
23 B. Sarwan Singh AIR 1957 SC 637 Mandatory to follow
Ratan Singh v. State circulars of the high
of Punjab courts by the recording
magistrate.
24 Tomaso Bruno v. Criminal Appeal Nonproduction of
State of U.P. No.142 of 2015 CCTV footage, non
collection of called call
records can be said to
be with holding the
best evidence -
prosecution tried to
establish a case against
the accused by making
improvements by
various stages - para
33 - adverse inference
u/s. 114(g) of the
Evidence Act.
PART VA
SUBMISSIONS MADE BY MS. NITHYA RAMKRISHNAN, LEARNED
COUNSEL FOR DEFENCE APPEARING WITH MR SOMNATH VATSA,
ON BEHALF OF RESPONDENT – CONVICT SALIM YUSUF ZARDA
I Main proposition
The accused/appellants cannot be imputed any object or act
of causing the unfortunate death of the 59 persons in the
Sabarmati Express fire on 27/2/2002.
There is no credible evidence to conclude that petrol was poured
on the floor of the coach to set the coach aflame. Quite the
contrary, for passenger silence as to this dispels the notion
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consummately.
There is also no basis to conclude that any member / bystander
standing outside the train at A Cabin caused the fire either by
throwing burning objects into the coach or in any other manner at
all. Indeed. Even the case of the State at the trial was that it was
impossible to cause the fire by throwing burning objects from
outside.
It must particularly be noted that as far as Salim Zarda is
concerned, even the State does not allege that he was present at
ACabin on that fateful day.
II. Ancillary propositions
i] The most that could be attributed to any of the
accused/appellants, assuming that there is reliable identification of
presence in the mob, would be an offence U/s 148 of the Indian
Penal Code (IPC). No act done towards a common object beyond
stone pelting is proved against any of the appellants/accused, if
their presence can at all be established by reliable identification.
ii] There is no basis for concluding beyond reasonable doubt that
all the accused/appellants had the common object of causing death.
iii] No passenger identifies any accused as a person who used
any inflammable object. Passenger identifications for the first time
during the trial if any, are made 78 years after the incident,
without a TIP preceding the same. Further, none of the passengers
even claimed in contemporaneous statements that they could
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identify anyone at all.
It must be noticed at the outset that:
No means / attempt / act of causing death other than by fire is
attributed to any one by the state. Thus if, and only if, the fire is
attributable to anyone of the appellant / accused or respondent accused
either by pouring petrol near seat 72 as alleged or by inflammable
rags or materials thrown from outside, can the charge of causing death
be sustained.
Pouring of petrol near seat72 is rendered impossible by the fact
that not one passenger present at thatvery spot speaks of this. Though
inflammable objects were undoubtedly thrown into the train as
passengers do speak of this, the same could not have caused the fire, for
the reasons presently stated.
If death by the act of anyone present at ACabin is established,
then the next question would be, which of them can be, in law,
attributed with responsibility for the either the act or the object of
causing death. As res gestae, it should be noticed that if the mob had the
common object of causing death, persons leaving the coach would have
been chased and fatally attacked. No escaping passenger (and about
150190 escaped the fire) claims any attempt on their life or any
violence by the mob as such after they alighted from the coach.
Only three speak of any harassment at all. (A) PW170
Pravinbhai Amthabhai Patel, (B) PW202 Govindsinh Ratansinh Panda,
(both on the offside) and (C) PW175 Gayatriben Panchal (on the on
side), who refer to attacks by a group of 6 or 7 persons only, and thePage 207 of 988
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nature of harassment rules out murderous intent. Pravinbhhai was hit
and his leg fractured. True, Gayatriben escaped the harassment by
moving under the train, but there is nothing to suggest that the attack
had initially been murderous or that it would have turned so later.
III Grounds on which above propositions rest
A. Time of notice of fire makes it impossible for anyone outside the
train to have caused the fire. The following established facts prove
that the fire was coterminus with the stoppage at ACabin which
shows that the prosecution story is false:
• The fire was noticed within 35 minutes of the train leaving
after ACP at the platform or just outside it. More
importantly, fire was noticed simultaneously with the
second stop. As the fire must necessarily have originated
before the point in time it was first noticed, it must have
originated before the train stopped at A Cabin.
• GRP Wardhy book (Exh. 990/ Vol. 1/ Pg. 134) mentions an
entry at 7.55 am, which simultaneously mentions stoppage at
A Cabin, stone pelting and fire. The information was given by
the Station Master. This is an admitted document.
• ASP Fulsingh Meena deposed that the first ACP (Chain
pulling) right after the platform, was rectified and the train
started at 7.55 am. Within 3 minutes of this, he was informed
by walkietalkie on the fire, simultaneously with the stoppage
at A cabin and stone pelting. He told the Station Master, who
as we see, recorded a complaint at the GRP post, asPage 208 of 988
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evidenced by the Wardhy book. (See PW. 126/ Exh. 742/
Vol. 33/ Para 3/ Pg. 11385; Para 7/ Pg. 11387 & Exh. 743
– not part of the paper book)
• The Guard’s book mentions fire in Coach S6, within 5
minutes or restart upon rectification of ACP and
simultaneously with the stoppage of the train at A Cabin and
stone pelting. (Note of ‘restart’ upon ACP correction: 8 am
and note of fire in S6: 8.05 am.) (See – Exh. 778/ Vol. 34/
Pg. 11487). The Guard (PW135) notes the time of re start
as 8 and time of fire as 805, the ASM notes time of restart
as 7.55 and hears of the fire report as within 3 minutes
thereof. Thus, both accounts are consistent as the event of
the fire is noted with reference to the restart after the ACP.
The Guard’s book is also a document produced by the
prosecution and not denied by them.
• TTE Raniwal who descended from the guards coach as soon
as train stooped at A Cabin and sensed stone pelting, saw a
smoking coach as he walked ahead, and came back to
mention this to the Guard. (See PW. 136/ Exh. 780/ Vol.
34/ Para 3/Pg. 11489)• The Engine driver senses the train stopping, blows the
whistle. He turns backward and immediately sees the fire in
the coach S6. (SeePW. 228 / Exh. 1189 / Vol. 37/ Para
4 / Pg. 12613) (Driver’s first complaint made at 9.30 an on
the same day). (See Exh. 1190/ Vol. 37/Pg. 12624
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• ASM ACabin R.P. Meena hears the Driver’s whistle of
imminent stop near ACabin, descends from his office, sees
an approaching mob, warns passengers to shut doors and
windows, As soon as he climbs up to his post, he notices the
fire. (See PW. 127 / Exh. 744 / Vol. 33 / Para 2 / Pg.
11392)
Thus, notice of fire is simultaneous with the stoppage at A
Cabin or within moments thereof. Therefore the conclusion is
inescapable that the cause of fire had been activated before the
actual point of stoppage at ACabin, which point of stoppage may
be between 8. or 8.05. am.
The petrol pouring theory or the Ajay Baria story is ruled
out as impossible, because the State‘s case is that the alleged ‘core
group’ started to move from Aman Guest house towards ‘A’ Cabin
well after the restart upon rectification of the ACP. (SeePW.
236 / Exh. 1231 / Vol. 38 / Para 5 / Pg. 12785). In fact the case
is that this group started only after the train had reached Garnala.
The State has bound itself to the position that just the trip
from Aman Guest House to Ali Masjid itself takes 4 minutes. (See
Exh. 1014 / Vol. 36 / Pg. 12239 12240) But within 35
minutes of the train’s restart, the fire had already occurred. The
4 minutes ride from Aman to Ali Masjid is coterminus with, if not
slower than, the train’s restart and stop at A Cabin. Thus, the fire
had occurred and had been noticed even before the tempi could
have reached Ali Masjid as alleged. There is no question of the fire
waiting for the additional activities of the conspirators as alleged,
such as offloading at Ali Masjid and reaching the train, and more.
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Likewise, the stone pelting mob could only have accessed
the train from the outside after it stopped at ACabin. But the fire
had been ignited earlier, so, no member of the mob could have
caused the fire from outside ACabin.
The State has not disputed this position at all. The only
submission on this point is that the contemporaneous record also
notes “setting the coach S6” on fire. The submission is
misplaced. These words are no legal proof of how the fire
occurred. The makers of that record were examined and they gave
no oral direct evidence of who set the train on fire and how. It is
not the case of these witnesses that they saw the acts of
incendiarism. The words “S6 Ko Jala diya” or “aag laga di”
or such things in the Guard’s book or Driver’s complaint, at best
signify their impression, which is neither oral nor documentary
evidence of the cause of the fire. The record is only evidence of the
factum of fire, and the time of its sighting. Of the cause of fire, the
records are not even hearsay.
B. There is no forensic support of the prosecution case of arson by
use of petrol or any other flammable liquid or accelerant.
To this end, the defence argued that the finding of ‘petrol’ residue,
repeatedly confused with “petroleum hydrocarbon residue” (which
is a completely different thing) is untenable because:
• PWs 227 and 240, though FSL officers, cannot be considered
‘experts’ in fire forensics at all, in terms of S.45 Evidence Act.
They claim no specialize knowledge.
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• No proper test or proper procedure to establish any finding was
followed. The tests referred to by PW 227, thin layer
chromatography (“TLC”) and gas chromatography (“GC”) are
incapable of confirming the presence or absence of petrol.
(See PW227/Exh. 1161/ Vol. 37/ Para 12/ Pg. 12550).
• The precondition for accepting opinion evidence, laid down by
settled judicial precedent, has been flouted by the PW 227’s
failure to place before the court, the procedure, reasons,
readings, comparisons and results upon which FSL finding of
petropetroleum hydrocarbon residue are based. Under S.51 of
the Evidence Act, the reasons of opinion led are relevant.
Absence of reasons would, therefore, also be relevant.
• The finding of petrol/petroleum hydrocarbon residue even
taken as its face value does not signify an ‘ accelerant’ /
flammable liquid / poured to set the coach on fire. The coach
itself, as also passengers’ luggage would be full of matter
containing petroleum derivatives.
• PW 240’s conjectures had no rational or scientific basis and
are ruled out by the very authority he cites which is “Practical
Fire and Arson Investigation” by Redsicker and O’Connor as well
as NFPA 921 Protocols, both of which are, according to him
standard books. (SeeExh. 1347 / Vol. 38 / Para 16 / Pg.
12989)
[ To amplify the aforesaid points, a summary of the position in the
relevant books is separately extracted for the ease of reference.]Page 212 of 988
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IV. Who is an expert?
Now, who is an expert, has been explained by judicial
precedent with complete clarity:
[i] the expert must be within a recognized and specialized
field of expertise (S 45 Evidence Act)[ii] the evidence must be based on reliable principles, and
[iii] that the expert must be qualified in that discipline.
[Ramesh Chandra Agrawal V. Regency Hospital Ltd
(2009 (9) SCC 709)]An expert is only an expert if he follows the well accepted
guidelines to arrive at a conclusion and supports the same with
logical reasoning which is a requirement of law as laid down in
the Indian Evidence Act was an argument accepted in Sidhartha
Vashisht @Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC
1)]
In order to bring the evidence of a witness as that of an
expert, it has to be shown that he has made a special study of the
subject or has acquired a special experience therein or, in
other words, that he is skilled and has adequate knowledge of the
subject. [State of Himachal Pradesh v. Jai Lal (1999) 7 SCC 280;
Mahmood v. State of Uttar Pradesh (1976) 1 SCC 542)]
V. What is required for expert/opinion evidence to be read by the
court ?
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This too is clearly settled:
Ramesh Chandra Agrawal v. Regency Hospital Ltd. (2009 9
SCC 709;
The importance of an opinion is decided on the basis of the
credibility of the expert and the relevant facts supporting the opinion
so that its accuracy can be cross checked. Therefore, the emphasis has
been on the data on basis of which opinion is formed. The same is
clear from following inference: Mere assertion without mentioning the
data or basis is not evidence, even if it comes from expert. Where the
experts give no real data in support of their opinion, the evidence even
though admissible, may be excluded from consideration as affording
no assistance in arriving at the correct value.”
Dayal Singh v State of Uttaranchal, (2012) 8 SCC 263;
“The essential principle governing expert evidence is that the
expert is not only to provide reasons to support his opinion but the
result should be directly demonstrable.”…..” If the report of an expert
is slipshod, inadequate or cryptic and the information of similarities
or dissimilarities is not available in his report and his evidence in
the case, then his opinion is of no use.”….. “In other words the value
of expert evidence depends largely on the cogency of reasons on which
it is based.”
Mahmood v. State of Uttar Pradesh (1976) 1 SCC 542;
Para 19″The expert has not given any reasons in support of his
opinion. Nor has it been shown that he has acquired special skill,
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knowledge and experience in the science of identification of finger
prints. It would be highly unsafe to convict one on a capital charge
without any independent corroboration, solely on the bald and
dogmatic opinion of such a person, even if such opinion is assumed to
be admissible under Section 45, Evidence Act.”
The “Daubert Principles” resulting from a landmark US
Supreme Court Judgement, Daubert v. Merrell Dow
Pharmaceutical Inc. (509 US 579 (1993) has been quoted with
approval by a Constitution Bench of the Supreme Court in Smt.
Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263. The said
Principle is based on Rule 702 of the Federal Rules of Evidence of
1975 governing the admissibility of expert opinion testimony
based on scientific findings. The majority opinion (Blackmun, J.)
in the abovementioned US Supreme Court case following Rule
702 of the Federal Rules noted that
“The trial judge’s first step should be a preliminary assessment
of whether the testimony’s underlying reasoning or
methodology is scientifically valid and whether it can be
properly applied to the facts in issue.”
“Several other considerations will be applicable, such as:
whether the theory or technique in question can be and has
been tested .whether it has been subjected to peer review and
publication:
• its known or potential error rate
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• the existence and maintenance of standards controlling its
operation• whether it has attracted widespread acceptance within the
scientific community”
The Constitution Bench also noted that Daubert ruling in
this regard that trial judge is expected to perform a ‘gatekeeping’
role to decide on the admission of expert testimony based on
scientific techniques.
By the above standards, neither PW 227 nor PW 240 are
experts nor is their testimony of any value.
A scientific opinion tendered in the witness box is to be
assessed like any other evidence, and admissions will bind such a
witness.
PW 227 Mr. Talati, admits he has no experience of such
cases (Para9 / Pg.12549). He admits that he does not know
such a basic fire forensics concept as ‘flashover’. (Para9 / Pg.
12549). He is unable to say what material the coach is made of
and he did not ask for samples (Para10 / Pg.12549). He is
unable to say whether petrol found according to him on unburnt
cloth is burnt or unburnt (Para12/Pg.12550). He is unable to
say the time period for retention of petrol in a substance though
retention time is a result that a GC will reveal (Para12/Pg.
12550). He admits that he did no pyrolysis test, nor a multiplier
analysis (Para 12/Pg. 12550). He does not even assert that
the only tests he performed are sufficient to conclude anything. He
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does not himself quote any text or principle.
It is not even clear whether he means to say residue of
petrol or of petroleum hydrocarbons and whether he knows that
difference. His testimony throughout speaks of residue of
petroleum hydrocarbon. His failure to find any petroleum
hydrocarbon residue in rexin (a brand name for PVC or like
polymer) which by its very raw material and manufacture
abounds in petroleum hydrocarbons indicates that he is quite
clueless about the properties of petroleum hydrocarbons (Para
15/Pg.1255112552). Similar is his failure to be able to detect
petroleum or other hydrocarbons in oil soaked material. His report
and examination in chief, are both bereft of the slightest reference
to methods, readings, similarities, differences or standards. He has
furnished the court with no basis to assess his evidence or rely
upon it. Such evidence is ruled out at the threshold.
PW 240 does not fit the bill either, for he claims no
specialised knowledge of fire forensics. He does not even know
whether heat release rates can be measured. (Para17/Pg.
12990). This was his first experience of fire in a train (Para7/Pg.
12985). Neither PW 227, nor PW 240 has any claim to special
knowledge of the subject. Their answers to queries confirm a
fundamental ignorance, and in PW 240’s case, an obdurate refusal
to even apply the principles that he claims to have read.
Judicial notice under S.57 and power to inquire under S.165
Evidence Act
The Court is entitled to take judicial notice of authoritative
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texts on science. This power is unhampered by any procedure. The
State cannot possibly object to this Court reading the texts
submitted by the defence on Fire Forensics particularly when the
FSL witnesses shed no light on the matter and even the State, at
this appellate stage, has abandoned reliance on parts of the same
without giving any alternative authority in support.
In sum, the defence argument was, not to seek a particular
forensic finding from the Court on the fire, but merely to assess
the completely unreasoned, cryptic, reports in the light of
established, reliable principles, which assessment is both the duty
and the privilege of the Court, and for which it is endowed with
statutory powers.
State’s arguments regarding expert testimony
[a] The State has, chiefly, argued that a proposition or
text not put to the expert witness cannot be relied upon.
[b] PW 240 has taken some photographs show a
demarcation between 75 percent of intense burning in the
coach on the east side and 25 percent of reduced burning
on the west side. This was argued as countering the defence
case that no demarcation has been shown. (This is a severe
misunderstanding of the defence argument.)
[c] The State has also argued that expert evidence is only
opinion evidence and that it shall rely upon the PWs 227
and 240 only to the extent that they corroborate Ajay
Kanubhai Baria and Jabir’s confession and shall
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eschew PW 240’s opinion that burning objects thrown from
outside will not cause such a fire.
[d] Some judgments are cited by the State, do not dent
the defence points, and may, ironically even support the
defence.
Defence Rebuttal of States arguments on Forensics
The Court is neither absolved of the duty nor robbed of the
privilege of assessing opinion testimony.
There is no quarrel, as there cannot be, with the proposition
that a counterview must be put to an opinion expert before it can
be relied upon. However, for this proposition to be pressed,
the witness must satisfy the definition of an ‘expert’. And further
satisfy, the requirement of showing the court, the basis his
testimony or opinion. These requirements do not rest on the
nature of cross examination at all, but are instead, the sine qua
non of scientific testimony. It is a precondition for the receipt of
opinion evidence in court, which cannot be waived, even if the
defence does not ask a single question of the expert. The forensic
evidence led by the State in this case fails at the threshold for
want of specialised knowledge, compliance with due procedure
and lack of cogency. PW 227 is also completely cryptic.
In other words, an incoherent, unreasoned and
unsubstantiated opinion is not binding upon the Court merely
because questions or passages were not put to a person lead as an
expert, even when the opinion witness satisfies none of the pre
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conditions for acceptability.
Cases in re expert evidence cited by the State
The State has cited Bhagwan Das v State of Rajasthan AIR
1957 SC 589. This was a case where a conclusion adverse to the
accused was drawn by the High Court to reverse the acquittal. The
Supreme Court held that this was unfair to the accused, for the
High Court had negated a factual assessment of ‘unconsciousness’
and read medical texts to opine on whether the person could have
been unconscious at all. In that context, it was held that the texts
read by the High Court may not have been in the same
circumstances as that examined by the expert. By contrast, in the
present case, principles universally applicable regardless of
circumstances have been ignored. Tests that will reveal the
identity of a flammable liquid and the tests that will not are
known and they remain so regardless of the fact situation.
Likewise, the need to analyze comparison samples, and to
eliminate the effect of interferences applies in all fire
investigations, regardless of circumstances. It is not as though a
correct procedure is adopted but a different reading is urged by
the defence. The defence is merely trying to bring to the Court’s
attention what the established scientific procedures are.
As far as PW 240 goes, the very text he speaks of and
quotes verbatim, though without due acknowledgment, shows
that his inaccuracies are far worse than mere ignorance. Anyway,
since he has quoted from that text, there can be no complaint that
the text was not put to him. The Redsicker text warns against
concluding that fire was caused by pouring an accelerant merely
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from an alligatoring pattern. However, his first conjecture of a
deliberate pouring of petrol is drawn from just such a pattern.
The next case relied upon by the state is State of MP v.
Sanjay Rai (2004) 10 SCC 570. Here the Supreme Court upheld
the High Courts order of acquittal and held that the Trial Court
was wrong in recording a finding adverse to the accused by
concluding on its own that there was strangulation, when there
was no evidence to that effect.
In yet another case relied upon by the prosecution, namely,
Santosh Kumar Singh v State through CBI (2010) 9 SCC 747, the
experts were pioneers in the field of DNA testing and also those
whose set procedures had gained universal acceptance. DNA
testing being, a one to one match, their findings were accepted
after the Court’s own expert witness had also been examined. Can
it be said that either PW 227 or PW 240 are witnesses of such a
stature of expertise? PW 240 does not even return a scientific
answer to a question whether fire could have started before the
train stopped. On the contrary, he reiterates the prosecution’s
untenable case of an entry into the train by arsonists, for an
answer, without testing its feasibility.
Most importantly, in the case of Santosh Kumar [supra], the
requisite tests were carried out and their results produced before
the Court. This is far from the case in the Godhra Fire
Investigation, and ‘fire debris analysis’ is nowhere as
straightforward as a DNA matching. The scientific evidence
brought to the attention of the Court by the prosecution is
unfortunately not supported by any science whatsoever. These are
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the opinions of a man who is admittedly not an expert and whose
opinions are further contradicted by the very text that he cites as
an authority.
Just as a court cannot be asked to conclude the presence of
acid when it is admitted that no litmus test was carried out or to
conclude that a person was running a temperature of 104 degrees
when it is admitted that no thermometer was used, a court cannot
be asked to believe that there was petrol, when no spectrometry or
other detector was used, and interferences were not eliminated.
VI. Defence alternative of smouldering fire.
The defence has placed on record, a case of probability,
more consistent with passenger versions of a thick toxic smoke
preceding the bursting into flames. It is to this end that the
scientific studies on the nature of a smouldering fire transiting to
flaming have been placed before the Court. The purport of the
defence submission in this regard is that despite a clear possibility,
if not probability, of a smouldering fire, the investigation has not
even examined this. As a consequence, the trial court has been
mislead into a large number of convictions and life terms and
death sentences, in this capital case, on the assumption that this
train fire could only have been caused by a large quantity of petrol
being poured onto the coal floor. Now, before the appellate court
when the State is claiming that fire was caused by burning rags,
without leading any opinion evidence on the point, the defence is
entitled to rely on basic scientific principles of a smouldering fire.
It is reiterated, that the Court is not being asked to return a
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forensic finding by way of a new theory. Only to note that possible
alternatives were irrationally rejected at the time of investigation
and are not sought to be introduced when the story of fire by
pouring petrol is floundering. However, if the State, categorically
ruling it out at the trial, seeks that its new version be entertained,
then the scientific logic of this new explanation cannot be
overlooked.
State’s misunderstanding on technical argument in re lines of
demarcation
The Defence had shown a passage from Redsicker (Chapter
4) that a line of demarcation around the point of origin, of the fire
can map the speed of burning. As Lentini notes, even this is a
debunked method now). PW 240 speaks of a fast spreading fire
even though no such line is noted by him around the point which
he claims, is the point of origin. (“Lines of demarcation” is a ‘term
of art’ in fire forensics, a technical point. The demarcation
between burnt and less burnt parts of a whole compartment has
nothing to do with the issue. To be fair to PW 240, he does not
refer to this as a line of demarcation in the aforesaid ‘term of art’
sense.
VII. Passenger accounts rule out both conspiracy and common
intention
a) Conspiracy under S.120 (B) IPC read with 302 IPC to a
core group acquiring and pouring petrol on flooring of S6
The case of conspiracy is ruled out because not one passenger
speaks of its execution as alleged. It is also ruled out because of
the time of notice of fire and forensics alike fail to support it.
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Jabir’s confession cannot be the basis of the concluding any such
conspiracy, as it is legally impermissible to do so.
A confession of a coaccused is not substantive evidence. It can
only be looked at under S.30 Evidence Act, if there is other reliable
evidence. As the only other material on the execution of the
conspiracy by entering through S6/S7 vestibule is Ajay Kanubhai
Baria’s statement fraught with contradictions, and far from
reliable, Jabir’s confession is ruled out as a piece of evidence
against any of the co accused as well as in support of conspiracy.
[Haricharan Kurmi v State of Bihar AIR 1964 SC 1184; Para17]
It is also ruled out under S. 10 of the Evidence Act as a post arrest
confession, made on a date one year after the period of the
alleged conspiracy ended cannot be used under S.10. [Mohammed
Khalid v State of West Bengal (2002) 7 SCC 334; Para33].
The statements of Ranjit Jodhabhai (PW224), and Prabhat (PW
231) who work at the Kalabhai petrol station alleging purchase of
petrol the previous evening cannot be believed. Firstly, their
statements are contrary to their own very statements made nearly
a year earlier in April 2002 (0910/04/2002 written by pencil),
soon after the incident, when they positively asserted that no loose
petrol was ever sold by them. A complete volte face in February
2003 has no credibility by any principle of appreciation of
evidence. Their conduct shows them to be liars and hence
unworthy of credit.
Ranjit (PW224) has been also shown to be a liar several times
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over, who is constantly admitting to taking money from one party
or another. The sting operation showing him as saying so, and his
later explanation of having taken money for the sting operation
itself, was not permitted to be brought into evidence, and every
single person indicted by these witnesses has been convicted and
sentence to death. This is a gross failure of due process.
Prabhatsingh (PW224) in his statement of April 2002 states that
his seat at work was inside the station from there is no question of
seeing customers outside. In February 2003, he improves his
statement by providing an explanation that he came outside his
office towards PW224 that several persons came to buy loose
petrol. This crafted improvement is certainly indicative of a
malicious falsehood.
Although Prabhat did not feature in the sting operation, the
evidence of the journalist who conducted it would have impugned
both the petrol vendors as well as the malice of the investigating
agency and further discredited the entire story of the purchase of
petrol on the previous day of the fatal fire. This evidence was not
permitted.
On the count of failure of due process itself, this evidence of the
petrol vendors employees of Kalabhyai petrol station should fail,
besides the same being severely compromised in truth.
[b] State‘s Case on Common Object
Common intention to commit murder by arson S.149 read
with S.302 IPC) is urged by the State on 4 counts:
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[1] The State‘s case is that one group entered from the vestibule
between S7 and S6 to pour petrol on the floor to set the train
ablaze and the rest of the mob aided this by throwing burning
objects from the outside of the train.
[2] The violent slogans of the mob and the fact that the mob
did not disperse until the firing by law enforcement agencies. The
entire train was attacked by pelting stones, indicating the violent
intent of the mob.
[3] Passenger accounts and other accounts of burning objects
being thrown and sprinkling of inflammable fluid on the train by
members of the mob from outside the train. Windows rods were
bent to enable the throwing of inflammable objects.
[4] Finding petrol in carboys around the track and finding of
petrol remnants on window rods.
[5] Contemporaneous records (GRP Wardhy book etc) note that
the “coach was set on fire”.
[c] Defence Rebuttal on Common Object to commit
murder by setting the coach on fire.(S.149 read with 302 IPC)Chapter VIII, Sections 141 to 149 of the IPC deal with the offences
of rioting, and offences committed pursuant to the common object
of a riotous assembly. It is a scheme of graded criminality.
Joint or continuing in an unlawful assembly armed with deadly
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unlawful assembly after it is ordered to be dispersed is also an
offence (S.145). When force or intimidation is used by an
assembly, it is rioting, and rioting armed with deadly weapons is a
separate offence (S.148).
Armed, even with deadly weapons, members of an unlawful
assembly or rioters, do not ipso facto become persons with the
object of causing death. There is no presumption as to the object
of an unlawful assembly. It is only when there is proved, the mens
rea of a common object to kill or the knowledge that killing is
likely, that a murderous intent can be assigned to every member
of the assembly.
Proof of presence in the assembly with either the shared objective
to cause death or the knowledge that death will be caused, is
essential. If and only if such an object or knowledge is first
established, then, overt acts are not required to be separately
proved against each member of the assembly.
Judicial precedent requires that, the common object of an
assembly be identified by such indices as conduct before or at the
occurrence. Cogent proof must be given of the knowledge of the
entire assembly of the likelihood of killing. Last but not least, the
identification of each member must be entirely reliable.
In Chikkeranga Gowda v State of Mysore, AIR 1956 SC 731, it
was recognized that “Section 149 did not ascribe every offence which
might be committed by one member of an unlawful assembly while the
assembly was existing, to every other member. The section describes
the offence which is to be so attributed under two alternative forms:
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(1) it must be either an offence committed by a member of the
unlawful assembly in prosecution of the common object of that
assembly; or (2) an offence such as the members of that assembly
knew to be likely to be committed in prosecution of that object.”
In Santosh v. State of Madhya Pradesh (1975) 3 SCC 727, it was
held that “likelihood of causing of death by the nature of the actions
of the members of the assembly must be shown to be within the
knowledge of a member who is to be made vicariously liable for a
death. Such knowledge may be inferred from the nature of the actions
committed by others in an unlawful assembly which the member held
vicariously liable continues to associate himself with despite these
actions seen by him or known to him.”
In State of UP. V Dan Singh (1997 3 SCC 747), the Supreme
Court actually reversed concurrent acquittals finding a caste attack
upon a marriage party, where some persons were burnt and others
beaten to death. Since violence was inflicted in every possible
form, and the deaths could not have resulted from just attacks by
stones and sticks, expect by many participating in the assault, the
Supreme Court found it difficult to rule out murder as the
common object of the assembly. Yet, as a caution, for recording a
conviction it applied a test of identification of an accused by at
least four witnesses.
In this case, the appellant/accused have spent 1013 years in jail
several times the maximum penalty for rioting with deadly
weapons, which is 3 years. This issue now is academic, although
adequate proof of presence may be wanting in most of their cases.
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The main if not the only question is, whether it can be said that
the common object of the assembly was murder. It must be noted
that there is alleged no act towards causing death other than by
fire.
RP Meena the ASM A Cabin speaks of a crowd of about 200300
approaching the train before it stopped. By the time he climbed up
to his office above A Cabin, he had noticed the fire. It is obvious
that the mob that he claims to have seen could have neither
caused the fire nor known of it beforehand.
There were persons gathered outside the train near A Cabin.
Which of them came first, which came later, and which of them
knew what any section of them intended to throw at the train, is
difficult to say. No evidence has been led on this.
The fire had been noticed and the RPF and the police approaching
the mob fired at it and made it disperse. There is no indication of
the time gap, between the notice of fire and the dispersal of the
mob. However, the passengers who alighted upon sighting smoke
or hearing of fire inside the train, were allowed to do so without
impediment. In these circumstances, what each member of the
mob knew or could infer by the time it dispersed is unclear.
By itself, a burning rag is not a weapon of death though it could
be dangerous. In this scene seeing a burning rag being thrown and
the inference that death was likely does not follow in the same
manner as it would if what was seen is the firing of a gunshot, or
attack by a knife or sword. How many members of the mob saw
these being thrown, whether those who did could see, one or
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more being thrown and whether they perceived this as an attempt
to take life cannot be said.
The fact that the entire train was attacked by pelting stones, in
fact, shows that the common object was to attack the moving train
with stones, no more , no less. Of the entire lot pelting stones, a
handful may have indulged in incendiarism. Incendiarism or
death, cannot then be the common object.
The following will make the defence argument clearer.
Passenger Accounts of inflammable objects
Though it has not been quantified till now, it is evident that the
number of persons throwing burning rags, or the number of
burning objects thrown, is only a fraction of the total number of
persons assembled outside the train at A Cabin.
• The prosecution has examined a total of 50 passengers
travelling in various coaches of the train including S2, S4,
S5, S6, S7 and S8 coaches.
• The 1st investigation officer (pw241) has stated that S6
coach was full with about 200250 passengers. About 190 of
them escaped the coach.
• Out of these 50 passengers examined as witnesses by the
prosecution, 20 do not mention any inflammable object or
anything that may aid inflammation in the nature of
burning kakda /rag, inflammable liquid / material or
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carboys etc being thrown inside the coach.
• Out of the remaining 30 witnesses who refer to inflammable
objects in the nature of burning kakda /rag, inflammable
liquid / material etc, only 13 have made a contemporaneous
reference to the same, in the statements recorded soon after
the event. (the other 17 are statements made for the first
time in 2005, or those who refer to inflammable objects at
the trial for the first time).
• As fire is the most serious fact, uppermost in any mind or
contemporaneous statement would be any aspect of
flammable material. Therefore, if a statement made soon
after the incident contains no reference to it, then it is
unlikely that such a person would have seen it. Later
additions are likely to be a play of imagination, for one
would be loathe to call traumatised passengers liars.
Therefore it would be prudent to keep out of consideration,
the 17 witnesses who give refer to inflammable objects so
very belatedly.
• The 13 witnesses who have made contemporaneous
statements of inflammable objects in the nature of burning
kakda / rag, inflammable liquid / material etc, should be
treated with utmost respect.
• However, the location of some of these is available. 7 of
these are from coaches other than S6, such as from S2 (1
passenger), S4 (2 passenger), S5 (1 passenger), S7 (2
passenger), S8 (1 passenger)
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• From S6 itself, there are some who give their seat numbers.
1st Compartment3 (PWs124, 81 & 8)
2nd compartmentnil
3rd compartment1 (PW119)
4th compartmentnil
5th compartment3 (PWs120, 84 and 150)
6th compartment1 (PW175)
7th compartment2 (PWs168 and 75)
8th compartment1 (PW82)
• Only PWs 119, 82 and 85 speak definitely speak of rags
falling into their compartment. One passenger who was in
the passage near seat 72 speaks of 2 persons setting hay on
fire (PW114)
• From the above accounts, it can be inferred that some
persons were using inflammable material.
• However the number of those using / throwing inflammable
material could be as few as 8 or less because:
◦ It is possible that all the people located in one
compartment are speaking of one and the same burning
object.
◦ It is also possible that witnesses who do not specify
where they saw a burning object fall are speaking of the
same object that those in other compartments perceived.
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Passengers of coaches other than s 6 may have seen the
very same objects which fell into coach 6. Only the
witness from S2 speaks of a rag falling into his coach,
which was promptly extinguished.
◦ So it is entirely possible that several witnesses, within
the coach and other across other coaches are speaking of
the same burning object/s that fell into s 6. This way 47
witnesses may be speaking of the same burning objects
or sprinkling.
◦ Further, the same person may have thrown more than
one inflammable object and carried carboys. The persons
throwing objects and bending window rods to facilitate
the bending of rods are likely to be the same. Thus, it
could well be that no more than 47 persons actually
indulged in these acts from the entire lot present, of
whom 135 persons are charged in this case by the state
and out of the 800900 alleged to be present.
Non passenger accounts
VHP witnesses (whose very presence at A Cabin has been
disbelieved by the Trial Court) speak of sprinkling / throwing of
inflammable objects. Even Bhikha Harman (PW 206) only speaks
of stone pelting and though he claims presence at the time of
seeing the fire, but can see neither the mode of fire not who set it
on fire. Anyway, those whom nonpassengers saw may well have
been the same set that the passengers saw.
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There is not necessarily a one to one correspondence between the
thrower and the object thrown, as one person may throw more
than one burning object.
Even if the exaggerated figure of 2327 persons throwing burning
rags or bulbs is taken, it is barely a quarter of the total of a 135
odd accused. If the more reasonable number of 13 which may be
as low as less than 8 is taken, it is a miniscule fraction. In the
absence of any further evidence to show either that the rest of the
mob had any common cause with this, when the maximum that is
attributed to the rest is stone pelting, how can an inference be
drawn of the common object of arson?
From out of a total escaping passenger load of 150190 persons in
the coach S6, only 13 speak contemporaneously of flammable
objects thrown into the train. This number is less than a third of
even the 50 passengers examined. This too shows that the
throwing of flammable objects from outside is only a fractional
phenomenon, not even one observed by all or even the majority
of the passengers how can every single member of the assembly be
credited with knowledge of this.
One thing is clear, when the majority of the passengers were
getting off, even then the stone pelting had begun to abate.
PW175, Gayatriben does not speak of any continued offensive
from the mob other than her harassment by a group of 6 or 7 who
did not seriously impede her escape. The RPF and State Police
were not hit by a single stone.
If the test for S.149 IPC is continued participation in an unlawful
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assembly after coming to know of burning the train, what manner
of participation can be alleged against a crowd that seems to have
stopped its hostile behaviour? Some RPF and state police officers
do speak of stone pelting after they reached A Cabin. Some of
these are silent on stone pelting, some others are improvement.
However, the biggest factor which suggests that this form of
offensive behaviour had abated is that not one officer of either the
RPF or the State police was hit by a single stone.
In the aforesaid circumstances, how then can an inference of
knowledge of the likelihood of death be attributed to the entire
mob? Particularly in the face of exonerating conduct relevant
under S.8 of the Evidence Act. The offside was left free and
unimpeded, the coach was not surrounded. No violence was
shown to passengers as they escaped. No aid to trapped
passengers by other passengers or bystanders was impeded. The
alleged attack on firefighters at another point cannot therefore
be attributed to those at A Cabin or with a shared intent with
those at A Cabin. There is no reason to assume they were the
same set.
Failure to disperse upon being asked to disperse is not the same
thing as an object to commit murder or even a sympathy with that
object. Every act of continued lawlessness is not indicative of the
object to kill, although it may indicate indiscipline or
unlawfulness generally.
The entire lot was throwing stones, of which only a small handful,
possibly, was throwing rags. The entire train being attacked with
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that no murderous intent accompanied this. The burning objects
were sporadic as against the common pattern of stone throwing.
The prosecution admits that more than one girl was molested and
the crowd believed that a girl had been abducted into the train.
This factor explains an irate, spontaneous crowd, and further
improbabalises any serious intent to harm the train by fire. Unlike
cases where the common object is often discerned by an
unprovoked attack, or the presence of an unlawful group which
cannot be explained by any immediate cause other than a pre
planned attack, there is a clear explanation and pretext for a
spontaneous gathering in this case. This circumstances is res
gestae under Sections 8 and 11 other Evidence Act.
If those who threw these objects are identified, they could be
charged individually with the acts, but that is not the case.
Although some passengers purport to identify individuals of the
mob, none of them is identified as a person seen throwing
inflammable material. The identification is only as a person
pelting stones. Passengers who identify the accused do so after 8
years, without a previous TIP. Their contemporaneous statements
give no identification that they can identify anyone, nor do they
contain the barest description of the miscreants.
There is no material to distinguish who was a bystander, who was
simply throwing stones, who was carrying anything else and who
threw burning objects into the train.
The allegation rests on passengers noticing inflammable objects
thrown into the train like rags etc. The same is a self defeatingPage 236 of 988
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proposition because by the very fact of notice, the rag would be
extinguished or the object destroyed. The only way an unnoticed
tag or bulb thrown into the train could set the coach ablaze is by
smouldering into a fire. It would follow the pattern of a
smouldering fire. As no scientific evidence in support has been
placed by the state, and in fact the evidence they place is contrary
to this proposition, this is a new case set up, which is
impermissible. See Ugar Ahir V State of Bihar (AIR 1965 SC
277). “A court cannot disbelieve the substratum of the prosecution
case or the material part of the evidence and reconstruct a story of its
own out of the rest.”
See also Devi Lal & Anr. V State of Rajasthan (1971 3 SCC 471).
The defence had no notice of such a case as the cause of fire or
the forensic basis for it. In fact the defence was led to believe that
the prosecution case was that fire could not be caused by burning
objects thrown from the outside.
At this stage, the defence material on smouldering fires must also
be read to see that that the time taken to flaming is usually a
minimum of 22 minutes in upholstery (though it could be less but
could also be 306 minutes or more). The general range in a
compartment is 50150 minutes. (As flames erupted even as the
first lot of escaping passengers landed on the ground and turned
to look at the train, soon after they claim to have seen rags/other
inflammable substances thrown in, it is improbable that rags
caused the fire.
The slogans alone cannot prove intent or object. Often violent
slogans are used in peaceful protests. There is no evidence on
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how many persons from out of the mob were shouting slogans.
The words of the slogans should be seen against the deeds of the
majority, more than 80 percent of the mob, which did no physical
harm to the passengers.
The State’s argument that contemporaneous record notes “setting
the coach S6” on fire is no legal proof. The makers of that record
were examined and they gave no oral direct evidence of the fact
or who set the train on fire and how. The record signifies their
impression, which is neither oral nor documentary evidence of the
cause of the fire. It is only evidence of the factum of fire, and the
time of its sighting. Of the cause of fire, the records are not even
hearsay.
VIII. The case of Salim Zarda
• There is absolutely zero evidence of Salim Zarda’s presence at A
Cabin.
• The only material against him is Jabir’s confession and the
evidence of Ranjit and Prabhat, the petrol vendor employees of
Kalabhai station.
• Ranjit, severely compromised, as stated earlier is unreliable. He
does not mention Salim’s name in any statement. He mentions one
Siraj Zarda, which is hardly identification. He does not identify
Salim Zarda in Court.
• Prabhat too is discredited as his first statement in April 2002 is
completely different from his second statement in February 2003,
a year later. He denies that he was sitting inside the petrolpump
cabin (PW231 / Vol.37 / Para14 / Pg.12691) however this
improvement is admitted by the recording officer (PW244 / Vol.
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39 / Para159 / Pg.13236) and is wholly unreliable on the
identity of those coming outside to buy petrol.
PART VB
NOTE SUBMITTED IN CRIMINAL CONFIRMATION 6/2011 ALONG
WITH CRIMINAL APPEAL NO.586/2001
(State of Gujarat v. Salim @ Salman Yusuf Sattar Zarda)
Summary of arguments made by Ms Nitya Ramakrishnan, Adv for
Respondent – Salim Zarda, regarding inaccuracies in the Forensic
Reports
1. Thin layer Chromatography and Gas Chromatography –
Insufficient for detecting Ignitable Liquid Residues by themselves
individually or in conjunction with each other.
Thin layer chromatography and gas chromatography have been
carried out by Mr. Talati (PW227).
Thin layer chromatography is used as a cleanup procedure and as
a means of identifying dyes in gasoline. (P. 520 – Fire Debris
Analysis). At P. 521, it is pointed out that as a cleanup procedure
thin layer chromatography is obsolete while identifying dyes in
gasoline is useful for the “fingerprinting” of gasoline (petrol), that
is, it is useful for figuring out the brand of petrol, but not
necessarily to figure out the presence of petrol. At the same page,
P. 521, there is a discussion of the utility of analysis of gasoline
dyes. It is pertinent to mention here that Thin Layer
Chromatography even in the past required to be coupled with a
UV detector and subjected to a Marquis reagent and the presence
of a dye does not necessarily mean presence of petrol.
Gas chromatography is of many types and the many methods are
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listed in Chapter 13 of Fire Debris Analysis. It has, however, to be
combined with a detector such as Mass Spectrometry or UV
Spectrometry or a Flame Ion Detector to be useful and in this case
no spectrometry was carried out. As per Page 236 of Fire Debris
Analysis (second paragraph) “It is important to understand that
gas chromatography is not an analytical tool in itself. It is merely a
separation technique. It is necessary to couple it to another device
– called a detector – in order to obtain a signal, and thus data.
Once coupled to a detector, such as a mass spectrometer, a full
analytical technique is obtained.” Also Gas Chromatography
cannot be used as a stand alone test, and will only show the
retention time and abundance.
In the instant case, it has been admitted that the multiplier test
was not conducted which is an admission that a mass
spectrometer was not used. The mass spectrometer carries
involves the electron multiplier test.
Redsicker supports the aforesaid (See pages 306309 of the book
Practical Fire and Arson investigation)
2 Identification of substrates
While it may be possible to identify petrol from a neat sample of
petrol (P. 306310 from the book Practical Fire and Arson
Investigation, (Redsicker) it is not possible to do so in case there is
any interference. Paragraph 12.1.2 at Page 442 of Fire Debris
Analysis (Stauffer)details “how fire debris samples can contain
organic compounds hindering the identification of ILR”. Paragraph
12.1.2 running from Page 442 to Page 446 details the many
factors which will give an indication of what kind of interfering
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substrates may be present at the place of a fire. Extremely
pertinent here the mention of PVC Flooring (the same as in the
train) at Page 448 as one such interfering substrate. Page 454
contains Figure 124 titled “Origins of the different categories of
interfering products through the steps undergone by the substrate”
which details the many ways in which interfering products
‘contaminate’ the sample of ignitable liquid making identification
of the liquid impossible. At Page 175, Paragraph 6.3.6, it is
observed that “There are numerous examples of common
household materials containing detectable levels of petroleum.
Without an appropriate comparison sample, it is difficult for the
analyst to form an opinion as to whether or not a recovered
ignitable liquid is incidental or foreign to tested material. By
having a sample of the same substrate material, the criminalist is
able to determine what, if any, ILR are inherent to that specific
substrate. In addition, some materials may produce significant
pyrolysis and partial combustion products that may interfere with
the analyst’s ability to interpret the data.” The substrate data may
show inherent products including an ignitable fluid, with identical
features as the suspected external one/ data may beIt is, thus, imperative to understand the substrates involved so that
hydrocarbon residues emitted or left by such interfering substrates
do not contaminate the finding of ignitable liquid. Mr. Talati has
admitted that he made no such differentiation and neither did he
ask the police to do so.
See also Lentini on petrol (gasoline being the most misidentified
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“Gasoline is, in this author’s experience, the most frequently
misidentified ignitable liquid residue. That is because many of the
compounds present in gasoline as it comes from the pump are also
produced when polymers, such as PVC and polystyrene, degrade as a
result of exposure to heat. The key to avoiding misidentifications is
making sure that the ratios between groups of compounds and within
groups of compounds are consistent with the standard. Toluene is a
very common pyrolysis product. It is an unusual fire debris sample
that does not contain toluene at some level. Because it is one of the
first compounds to evaporate, one does not expect to see a tall toluene
peak in the absence of equally tall xylene peaks in a sample that is
positive for gasoline. Figure 5.12 shows the chromatogram of a 10 µ l
standard of gasoline adsorbed using an activated charcoal strip, and
eluted with diethyl ether spiked with 100 pm perchloroethylene. The
toluene and xylene peaks are almost equally tall. If a fire debris
sample contains toluene from gasoline, it will be accompanied by
xylenes and the higher peak groupings of gasoline. Toluene that is not
so accompanied comes from something other than gasoline. Xylenes
are also produced by the decomposition of plastics but they are the
first group of compounds that we can examine for correct intergroup
ratios. Figure 5.13 shows ion 91, the base ion for xylenes, from
gasoline in three different stages of evaporation, kerosene, and a
medium petroleum distillate. The relative ratios for the three peaks
are almost indistinguishable.”
3 Pyrolysis
As per the definition on Page 96 of Fire Debris Analysis, “Pyrolysis
is a process by which a solid (or a liquid) undergoes thermal
degradation into smaller volatile molecules, without interacting
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with oxygen or any other oxidants.”
Pyrolysis products are one of the most serious interferants. As per
P. 461 of Fire Debris Analysis in the third paragraph, “Pyrolysis
products can seriously complicate the chromatogram, however, they
are not known to create diagnostic patterns that are typical of IL.
However they will significantly modify them, when both pyrolysis
products and IL are present.” On the same page, in the previous
paragraph the example of polystyrene (PS) products has been used to
state that “Again, although many aromatic compounds that are
present in gasoline, aromatic products, and some petroleum distillates
are present in PS pyrolysis products, the diagnostic patterns for IL are
not present.”
In a situation as in the Sabarmati express, the PVC flooring, the
plasticheavy construction of the coach itself, the passenger’s
belongings and clothing all of which are capable of producing the
same aromatic compounds as are found in petrol, it is not possible
for anybody to come to a positive finding of petrol without first
accounting for such interferences, including pyrolysis products,
which admittedly existed in the coach. If attention may be drawn
towards P. 475 of Fire Debris Analysis, it is stated that the
interpretation of a chromatogram should be performed using the
following steps:
1 Identify the sample and its substrate.
2 Estimate the typical contribution from that substrate.
3 Determine to which influences the substrate was
subjected.
4 Estimate the effect of these influences.
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5 Study the TIC from start to end, including peak
identification.
6 Study the MC in the regions of interest, including
peak identification.
None of this has been done in the instant case.
As observed by the Court itself, there are many factors from
Weathering to microbes which can interfere with the
Ignitable Liquid Residues. These are listed from Pages 468
to 474 of Fire Debris Analysis.
Comparison samples and their analysis in normal and burnt
condition, and subtracting those patterns alone will lead to
a correct conclusion. This too was not done.
4 Sample Selection
As per P. 164 of Fire Debris Analysis, adequate care has to be
taken to choose the right sample and to choose it with all due
care. Due care has to be taken of the properties of Ignitable Liquid
properties. As per P. 165 of Fire Debris Analysis, Volatility
significantly affects how a liquid fuel burns and its potential for
having detectable quantities that survive a fire. The more volatile
a liquid, the faster it evaporates. As per PW 240, a temperature of
910 degrees Celsius was reached in the coach. The possibilities of
any amount of liquid fuel surviving at that temperature are
remote. When coupled with the fact that neither was a proper
sample taken nor was there any consideration of substrate
properties, this makes the FSL report wholly unreliable.
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The same section goes on to speak about consideration of the
sample location at Page 166. It has been noted in the first
Paragraph of Section 6.2.4 titled “Consideration of Sample
Location” as “Samples that are protected from the fire can better
retain ILR than those that are exposed to the fire. Similarly,
samples found at lower levels often contain a greater quantity of
ILR due to the natural spread of a liquid by gravity.” ILR here
refers to Ignitable Liquid Residue.
5 Unreliability of assumptions about the fire based on ‘pour
pattern’ and temperature of the fire
As per PW240, Mr. Dahiya in his statement to the Special
Investigations Team, he has opined that the pour pattern was a
natural one (answer to Query No. 7. On the contrary, Fire Debris
Analysis states the following at Page 138, “As a result, the
presence of an ignitable liquid must not be drawn solely from
the shape of a fire pattern, unless exceptional circumstances
allow for this. Also, many times an investigator might think
there is a liquid involved as he or she observes irregularly
shaped patterns. In such instances, the laboratory analyst
should not necessarily expect a positive identification of an
ignitable liquid because these patterns might be created by
factors other than the pouring of a liquid. Besides flashover,
these factors may include melting from a polymer present on
the ceiling of a room or from a particular venting
configuration.” This is precisely what PW 240 has done.
According to PW240 Alligatoring is observed. In an article
named “Mythology of Arson Investigation” it has been observed
that Alligatoring has given rise to many myths including that the
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shape of Alligatoring proves whether it was a fast or a gradual
fire. It has been pointed out that there is nothing to substantiate
such a conclusion. The same article goes on to quote the
international nonprofit named the National Fire Protection
Association which is regarded as an authority on fire safety (at P.
7 of the article) “The final word on this and most other myths
may be found in NFPA 921. Here is what it says about
alligatoring:
Interpretation of Char. The appearance of the char and cracks
has been given meaning by the fire investigation community
beyond what has been substantiated by controlled
experimentation. It has been widely stated that the presence of
large shiny blisters (alligator char) is proof that a liquid
accelerant was present during the fire. This is a misconception.
These types of blisters can be found in many different types of
fires. There is no justification that the appearance of large,
curved blisters is an exclusive indicator of an accelerated fire.
Figure 6.5.5, showing boards exposed to the same fire,
illustrates the variability of char blister.
It is sometimes claimed that the surface appearance of the char,
such as dullness, shininess, or colors, has some relation to the
use of a hydrocarbon accelerant or the rate of fire growth.
There is no scientific evidence of such a correlation, and the
investigator is advised not to claim indications of accelerant or
fire growth rate on the basis of the appearance of the char
alone.”
Similarly, it has been stated that the practice of estimating the
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origin of a fire based on its perceived temperature is faulty (at
Page 18): Actually, fire temperature and the perceived speed of
the fire are not valid indicators of a fire’s cause.
A major misconception underlying many false determinations of arson
is that the temperature achieved by a particular fire can help an
investigator evaluate whether a fire was “normal” or “abnormal,”
with an abnormal fire being attributed to incendiary activity. Higher
than “normal” temperatures indicating a set fire is such an appealing
notion that even Paul Kirk bought into it, as previously discussed. To
this day, investigators sometimes infer the presence of accelerants
when they observe a melted aluminum threshold.” The same caution
is repeated in “Practical Fire and Arson Investigation” a book
cited by PW 240 himself as an authority. On Page 97 of Practical
Fire and Investigation it has been stated that “It has been suggested
that the presence of large shiny blisters (alligator char) and the
surface appearance of the char such as dullness, shininess or colours,
have some relation to the presence of a liquid accelerant as the cause,
but no scientific evidence substantiates this. The investigator is advised
to be very cautious in using wood char appearance as an indicator as
incendiarism”. In the same book at Page 76, it is observed that it is
only at the initial stages of a fire that some conclusion can be
drawn on the basis of the colour of the smoke or the flame.
6 PW – 240’s assertion that smoke could have been so thick
as to completely obscure the flame, on a question as to why
smoke was seen first and then flames.
This assertion of PW240 seems to have been selectively and
misleadingly taken from Page 226 of Practical Fire and Arson
Investigation. The explanation of PW 240 that when a largePage 247 of 988
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amount of accelerant is used, smoke obscures the fire is not made
out here at all. In fact, the opposite is stated at Page 226 that a
fire in which smoke appears first might be a precursor to a
flashover. In fact the smoke in the early stages would be scanty
compared to later. (See Redsicker pg 78)
In such a flashover, all the soot and even bloodstains are
pyrolised. A perusal of the ‘Phases of Fire’ at Page 67 show PW –
240’s assumptions to be quite unfounded. As per the four phases
of fire given, that is, Incipient, Emergent Smouldering, Free
Burning and OxygenRegulated Smouldering, the theory that an
accelerant like petrol would first produce smoke is not borne out.
As stated above, it is more consistent with the idea that such a
smouldering fire could lead to an increased in temperature
leading to a flashover.
The following Arguments were made in Court on the second
day of Court, that is, April 8, 2015Fire Behaviour
As stated above, the four phases of fire that have been outlined on
Page 67 of Practical Fire and Arson Investigation are: 1. Incipient,
2. Emergent Smouldering, 3. Free Burning, 4. Oxygen Regulated
Smouldering.
An Accelerant induced fire, which is in the instant case, a petrol
induced fire will have a very short incipient stage and will quickly
come into notice. At Page 67 it is stated, “The incipient phase for a
liquid accelerant in the presence of an open flame is obviously
much shorter than that of a prolonged exothermic reaction, such
as in spontaneous combustion.” At page 68 it is pointed out that aPage 248 of 988
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smouldering fire (as distinct from a flaming fire) may pass straight
to oxygen related smouldering, without going into free burning.
This could explain why smoke was seen first and then only later,
the flames. The explanation of PW 240 that this always happens in
a petrol induced fire is not supported by any scientific authority
whatsoever. At page 58, the concept of a flamespread is
described, which is “the movement of the flame front across the
surface of a material that is burning (or exposed to an ignition
flame).” At page 64, in Section 3.7, there is a discussion on
“Compartment Fires” according to which flame spread vertically
and horizontally. An accelerant induced fire, it is reasonable to
conclude, would have produced visible flame first, much before
the smoke became so overwhelming that it completely obscured
the flames. Page 89 of the book, Fire Debris Analysis, contains the
definitions to Flaming Combustion and Smouldering Combustion
where it is pointed out that smouldering fire is chemically a solid
togas reaction and the Smouldering Combustion often occurs
“due to a deficiency of oxidizer. Glowing combustion can be
sustained at a much lower concentration of oxygen than the 10%
required for flaming combustion.” This would most likely be the
condition of air in a tightly stuffed coach which has by one
estimate upto 250 people inside.
Though, an originally flaming combustion may die down in the
absence of oxygen, to be replaced by dense smoke, a smouldering
combustion, could straightaway transit to this stage and given
enough oxygen, subsequently erupt into flames. This could also
take the form of a flashover. PW240 states that flashover is not
possible in such a circumstance with some windows and doors
open. On the contrary, it is scientific fact flashover can happen in
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a compartment and that windows can break because of flashover.
As per Page 73 of Scientific Protocols for Fire Investigation,
(Lentini)”When flashover occurs in a compartment, one thing that
usually happens is that the windows break. In fact, the breakage of
the windows is often considered the event that defines when flashover
has occurred.” Paragraph 3 on the same page describes how
flashover has come to be accepted scientifically. Page 6870 of the
same book also states that flashover can occur when the
temperature reaches 500 to 600 degree Celsius. Page 72 states
that “The most intense parts of the fire will necessarily be in those
locations where there exists a good air supply..”. There needed to
have been a scientific mapping of the coach and of the fire to
figure out what actually happened. Instead, the forensic expert is
trying only to support the prosecution theory with arguments that
are not supported by established science.
Similarly, the discarding of the possibility of a shortcircuit by PW
240 is not supported by any scientific study on his part and nor is
it supported by any scientific authority. PW240 has merely stated
that since the train was stationary at the time, it was running on
battery and therefore there can be no shortcircuit. The same has
been said in response to query no. 6 in Exh.1356. He states also
that the FSL team studied this but there is no detail of why the
possibility of shortcircuit was ruled out.
In his answer to Query No. 5 in Exh. 1356. PW 240 has ruled out
cigarettes as a cause because of the presence of flame retardant
materials. What is ignored is that as per the railways itself, these
materials only resist fire for 1550 seconds (Exh. 993). The
common misconception that a cigarette or a beedi would only
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cause a gradual/weak fire has been specifically negated as per
page 10 of the Mythology of Arson Investigation. It is pointed out
that terms like sharp, gradual, fast or slow are terms that seem
intuitively true but are actually so subjective as to be meaningless
as scientific categories. The following extract is from page 10 of
the Mythology of Arson Investigation, “He then goes on to provide a
perfectly reasoned analysis of why this should be so, but, like
O’Connor, provides neither data (though he also provides a drawing),
nor a definition of what is meant by “sharp,” “gradual,” “fast,” or
“slow.” It seems to be a case of “I know it when I see it.” To his credit,
DeHaan cautions that a fastdeveloping fire may or may not be
accelerated. Nonetheless, this is the type of “data” that an investigator
may use to incorrectly “eliminate” a smoking fire, since smoking fires
are not “fastdeveloping.” (Actually, once a smouldering fire started by
a cigarette makes the transition to flaming combustion, the speed of
fire growth is not distinguishable from a fire ignited by an open
flame.)”.
Conclusions have been drawn by PW240 on incorrect scientific
principles.
After this, the attention of the Court was drawn to the following
articles/extracts which further support the theory of ‘smouldering
fire’ as a cause for the fire.
Smouldering Combustion by T.J. Ohlemiller
On page 2200, in the third paragraph, first column, after
repeating the definition of smouldering fire, it is pointed out that
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not only is a cigarette an example of smouldering combustion, it is
also one of the most common initiator of smouldering in other
materials, especially upholstery and bedding. Page 2206, in the
right hand column points out that smouldering is a major
contributor to residential fire deaths. It is pointed out that in “two
out of five tests the smolder process underwent a transition to
flaming combustion after 65 to 80 minutes, which is close to the
time at which total carbon monoxide exposure was estimated to
be lethal.” This extract at page 2208 discusses smouldering fire in
detail and on the same page in the third paragraph on the right
hand side column states the following about how easily a
smouldering fire can overcome a retardant, “Ohlemiller also found
that both boric acid (a smolder retardant) and borax (a flame
retardant) could each eliminate the transition to flaming when the
retarded cellulosic insulation was the only fuel. However, the
effectiveness of the acid and borax was substantially reduced if the
smouldering fuel abutted unretarded wood (as it typically does in
residential housing). Heat transferred from the smolder zone
readily ignited the wood.” The role played by wood in this
example could easily have been played by a piece of cloth,
clothing or luggage in the crowded coach. The answer of PW –
240 to query 5 where it is stated that an incidental fire will
necessarily take hours and the flame retardants would necessarily
stop such a fire is, as such, incorrect.
Article: An Analysis of Smouldering Fires in Closed
Compartments and Their Hazard Due to Carbon Monoxide
published by the US Department of Commerce, National Bureau of
Standards
On page 5 of this Article, it is observed that “although CO appears
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to be the principle hazardous agent of smoldering fires, other
combustion products generated can increase the hazard.” Further,
on page 9 it is observed that in a smouldering fire, the level of
carbon monoxide poisoning can reach a hazardous level. This is
consistent with the fact, in the instant case, of death through
asphyxiation. On page 10 it is noted that “It appears that
hazardous conditions due to CO occur in 50 to 150 minutes and
that the transition to flaming is also very likely in this period.” On
page 17, the results of two experiments are noted, in both a chair
was burnt in the living room but in one case the door to the
bedroom was open and in the other the door the bedroom was
shut. In both cases, the transition to flaming occurred within an
hour. It is pertinent to mention here, that one witness has seen a
primus in the S6 coach and people have a habit of being careless
with such stoves and fuels not to mention with things like
cigarettes. The possibility that the fire had nothing to do with the
mob cannot be ruled out.
Article: Upholstered Furniture Transition from Smoldering to
Flaming
On page 1030 of this Article under the heading Conclusions it is
stated that “Out of a total of 102 items subjected to smouldering
ignition in laboratory tests, 32% burned up partially or completely
without erupting in flaming: 64% did go to flaming, while the
remainder were manually extinguished or were indeterminate.” In the
next paragraph it is observed that “The mean smoulderingto
flaming transition observed in the laboratory tests was 88 min, the
minimum 22 min, and the maximum 306 min. The conclusion can be
drawn that transition times in the range 22 to 306 min are possible,
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but NOT that transitions outside this range are impossible.” As such,
the insistence of PW240 that only an accelerant based fire could
have engulfed the coach so quickly is not correct. Smouldering
fires can be fast or slow, no presumption of the use of petrol can
be made, especially when there is no other corroborative evidence
to suggest the presence of petrol when the correct techniques such
as the combination of gas chromatography with mass
spectrometry have not even been used.”
Smouldering Combustion Phenomena in Science and
Technology
On page 4, in the left hand column it is stated that “Typical values
in smouldering at ambient conditions are around 500700 degree
Celsius for the peak temperature and 612 kJ/g for the average heat
of combustion; typical values during flaming are around 15001800
degree Celsius and 1630 kJ/g respectively.” This article like others
notes the possibility of solid objects sustaining smouldering fire. It
mentions cotton, tobacco, dust, paper, peat, duff and hummus,
wood, board of organic fibers, synthetic foams and charring
polymers including polyurethane foam as solids that sustain
smouldering. These are very common solids and many of these
ingredient were definitely present in the unfortunate coach S6.
Smouldering fire can transition to flaming fire. At page 5, right
hand column, second last paragraph it is observed that “Thus, the
transition from smouldering to flaming combustion provides a
hazardous shortcut to flaming fires, which could be initiated with heat
sources that are too weak to directly ignite a flame on the solid fuel.”
At page 11, it mentions Borax, a flame retardant and Boric Acid (a
smoulder retardant), and notes that “Wang et al studied wood
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ignition and showed that Borax tends to reduce flame spread but
promotes smouldering, conversely boric acid suppresses smouldering
but has little effect on flame spread. This conflictive interaction of
current flameretardants with smouldering and flaming ignitions
poses a dilemma in fire safety and requires further research.” Flame
retardants are, as such, no defence to smouldering fires. The
answer of PW – 240 to query 5 where it is stated that an
incidental fire will necessarily take hours and the flame retardants
would necessarily stop such a fire is, as such, incorrect.
PART VC
TABLEA : That the following table in brief descending
version of passengers travelling in various coaches of the
train, including S2, S4, S5, S6, S7 and S8 about their
place of sitting, place of escape, weapons carried by the mob
and articles which were thrown inside and from which part
of the coach and identification.
Sl. Name of the Place Place Weapons Which articles Description of Identification
No Passenger of of carried were thrown smoke/fire
. sitting escape by the Mob inside and
from which
part of the
coach
1 Mohmmad S2 NA Iron rod and One cloth This burning
Imdad coach pipes soaked in piece of cloth
Bismillah (para inflammable was doused
Ansari 3/Pg.12419 liquid was with water by
PW216 ) thrown inside passengers
Exh.1115/ S2 coach (para
Vol.37 (Para 3/Pg.12429
3/Pg.12429)
2 Kalpeshbhai S4 NA Dhariya, Pelting stones, After the
Jha, Pipes, sprinkling throwing of the
PW74/Exh. sword, petrol or burning kakda,
607/ Vol.32 many had kerosene like there was
plastic substance on smoke coming
At the time of Carboys. the coach from out of the
the incident, he (Para3/Pg. the carboy, coach. (Para
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was in S4 11027) throwing of 3/Pg.11027).
coach (para burning kakda CrossHe has
26/Pg.11040) and acid bulb. admitted that
(para3/Pg. he has not
11027) stated in his
police
statement
about the fire
being started
by kakda.
(para20/Pg.
11036)
3 Hariram S4 NA Not stated Stone pelting Not stated
Shriramdev
Chouhan PW
76/Exh.613/
Vol.32
4 Ashwinbhai S5 NA Sticks, Stonepelting Not stated 1st time
Govindbhai Pipes, iron was going on identification
Patel PW rod, sword, from the .
118/Exh.727/ carboys etc. metalheap. a)Irfan
Vol. 33 Para The windows Mohammed
2/Pg,11327 rods were Hanif Pataliya
) broken by (A1/S.C.No.
Cross - pipes. Some 82/09) (Para
improvemen persons were 2/Pg.11329)
t proved. sprinkling Rolepelting
(para liquid from the stones in the
13/Pg, Carboy. (para mob. (para
11333) 2/Pg.11327 to 2/Pg.11328)
11328) CrossHe
Cross admits that
Improvement he has not
proved. (para seen this
13/Pg.11333 person before
to 11334) the incident
and even after
the incident,
there has
been no
occasion to
see or identify
this person
since the
incident.
(para
8/Pg.11331)
5 Rubidevi Near Uncons Not stated Glasses of Smoke and
Sriramohan Daho cious. about the windows and shouts of fire
Mali PW d side Para same doors broken and she fell
90/Exh.650/ toilet 2/Pg.1 because of unconscious
Vol.33 1152) stone pelting (para
(para 2/Pg.11152)
2/Pg.11151)
6 Dilipkumar 1 Door Dhariya, Because of There were 1st time
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Jayantilal Patel (Para Pipes, stone pelting shouts from the identification:
PW 2/Pg.1 Sword, the window 3rd a) Shabbir
124/Exh.738/V 1363) carboys etc. glasses were compartment Hussein
ol. 33 (para broken and and the iron Abdul Rahim
2/Pg.11363 broke the bars of the Badam (A
) aluminium window came 1/S.C.No.
window from to be broken 70/09) (para
outside. When and from the 2/Pg.121364)
he was sitting window petrol b) Abdul
near the dipped kakda Sattar Ismail
window, one were thrown Giteli (A
person of the and fire started 13/S.C.No.
mob tried to there. He 69/09)
attack him excited the Rolepersons
with a sword coach in order in the mob at
but he was to escape from the time of
saved by smoke and fire. the incident
window iron He has seen (para
bars. Persons many persons 2/Pg.11364)
in the mob coming out CrossHe
were throwing while the coach admits that
acid bulb, was on fire and he had not
petrol bulb as many persons given any
well as petrol came out in a reference to
from the burning age, body
carboy. (para condition. structure,
2/Pg.11363) (para face, physical
Cross 2/Pg.11363). features,
improvement The spread of identification
proved. (para fire was upto marks etc. in
7/Pg.11367) 15 feet .(para his police
3/Pg.11363). statement and
He came out of even after the
the coach incident,
immediately there has
after seeing been no
smoke. (para occasion to
18/Pg. identify
121373). He anyone.(para
says that 8/Pg.11369)
sprinkling of
petrol was
being done
from a distance
of 34 feet and
the acts of
stone pelting,
breaking of the
windows with
pipes and
sprinkling of
liquid were all
going on
simultaneously.
(para
27/Pg.11377 to
11378). Cross –
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improvements
proved. (para
7/Pg.11367).
7 Govindsinh 3 North Stone, iron Stone from on Notice of flame An attempts
Ratansinh side rod, pipe, side.(para from Godhra was made to
Panda, door knife etc. 3/Pg.12249) side during identify the
PW.202/Exh.1 (para (para stone pelting, persons who
024/ vol.36 3,Pg.12 3/Pg.12249 sees others had assaulted
249) ), (Para going under the hiim on the
4/Pg. seat and sees, off side
12249) faces, breathing however, he
problems sees could not
flames gets identify any
down. (para one.
3/Pg.12249),
cross
improveemnt
proved. (para
7/Pg. 12252)
8 Pujaben 4,5,6 Jumpe Weapons Windows Because while
Bahadursinh d from and stoned. broke because she was
Kushwaha PW the (para of stone standinv near
81/Exh.625/ vestibu 2/Pg.11085 pelting and the westside
Vol. 32 le ) Croos hence her toilet, because
passag improvemen family went of the smoke in
e side ts put.(para towards the the coach, she
toward 11/pg.1108 toiletside. was feeling
s 8) From the smell suffocated.
Vadoda she could (para
ra make out that 2/Pg.11085)
(para petrol like after coming
2/Pg.1 liquid was out, when she
1985). being poured turned around,
into the toilet she saw fire.
(para2, (para2/Pg.
Pg.11085) 11085; para
12/Pg.11089).
Because of the
articles thrown
in the coach
from the
window, smoke
was suddenly
caused and
leading to
breathing
issues and
burning in the
eye. (para
9/Pg. 11088;
para12/Pg.
11089) Tough
initially she
says that the
smoke had a
petrollike
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smell of
different types
(para
12/Pg.11089)
9 Radheshyam Near Windo Not stated Stones from There was a
Ramshanker 7 w windown flash due to
Mishra Para2, (para2/Pg. explosion of a
PW Pg.112 11298 bottle resulting
113/Exh.715/ 98 into smoke
Vol.33 which so
(Hawaldar in intense that he
the military) had difficulty in
2005 statement breathing.
During this
time there was
shouts, 'fire'
'fire'. The
smoke had
become so
intense that
nothing could
be seen. When
he came out, he
saw the coach
on fire (para
2/Pg.11298)
10 Gyanprakash 8 Many Stone pelting Burningobject
Lalanprasad people ran went on for a was thrown
PW80/Exh. towards the long time. inside from
621/ Vol. 32 train and There was broken window
started to sprinkling of which resulted
Father90% pelt stones. petrol and in thick black
bruninjuries. (para chemicals in smoke. Due to
Mother40% 3/Pg.11079 the backside which PW80,
burn injuries. ) Cross and fire was his father,
improvemen started from mother and his
Nephewdied t is proved. the back side nephew came
(paras (para and fire was down from the
2&4/Pg.11079) 8/Pg.11082 started from upperberth.
) the back side. Thereafter, the
(para3/Pg. door came to
11079) Cross be opened to
improvement enable people
proved. (para to come out
8/Pg. 11082). (para
Windowglass 7/Pg.11081)
came to be
broken in
stone pelting
and before the
iron window
could be shut,
burning object
was thrown
inside (para
7/Pg.11081).
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11 Pravinkumar 8 Door Stones, Kerosene from He sees smoke Without name
Amthalal Patel (para sticks, the carboy was smoke coming points out 3
PW 14/Pg. dhariya etc. poured from from Godhra persons as
170/Exh.873/ 12008) (para3/Pg. the 3rd window side and being present
Vol.35 12000) in the back because of fire on the offf
Cross - side. (para he gets down. side and who
improvemen 3/Pg. 12000) (para3/Pg. allegedly had
t is proved. Cross 12000) He looted 2 ring,
(para improvement admits that due 1 chain and
19/Pg.1201 is proved. to smoke, there cash.
0) (para was suffocation a)Ahmed
19/Pg.12010) and breathing Abdul Rahim
difficulty. Hathibhai (A
(Para 22/S.C.No.
10/Pg.12005). 69/09),
Cross b) Jabir Bin
improvement is Yamin Behera
proved. (A2/SC
(para No.72/09 and
19/Pg.12010. c) Siddik
Ibrahim
Hathila (A
1/SC No.
86/09)
Cross:Even
though he
denies stating
in his 1st
police
statement
dated 17.4.02
that “as he
had fallen
unconscious,
he cannot
identify those
2 person who
had taken his
2 ring, 1
chain and
cash” (Para
14/Pg.12008)
and hence
this omission
has been
proven
through the S.
161 of Cr.P.C.
statement
recording has
admitted this
omission.
(PW
222/Exh.113
6/ Vol.
37/Para
3/Pg.12478
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12 Hariprasad 11,13 North Pipe, Windows were People started
Munalal West Dhariya, broken in the shouting from
Sharma door, Sword and stonepelting backside that
PW (para Stones. and the stones there is fire
97/Exh.668 8/pg. (para2/pg. started to during which
Vol. 33 11199) 11196) come inside time there was
(para2/pg. smoke and it
Wife died 11196) was smelling of
petrol. He and
his wife were
coughing due
to the smoke.
Both has hands
and his clothes
were burnt at
the time of
coming out of
the coach.
(para2/Pg.
11196) cross
improvement
proved (para
5/Pg.11198)
13 Amar Kumar 24 Door Not stated Stone Pelting Stone pelting
Jamnaprasad near broke window shouts of fire
Tiwari seat glasses. (Para by his father,
PW 324 13/pg.11076) he had burning
79/Exh.619/Vo (para sensation in the
l. 32 4/Pg. eye. When he
11071) gets down he
sees the coach
on fire. (para
4/Pg.11071).
Crossthere was
intense smoke
and nearby
persons were
not visible.
(Para8/Pg.
11074) at the
time of fire, he
was on the top
most 3rd berth
in front of seat
#24. (para
13/Pg. 11076)
14 Poonamkumari 24 Door Notstated Stonepelting Fire started
Sunilkaur (para broke from the back
Janoprasad 2/Pg. windows. A side and smoke
Tiwari 11337) burning cloth also started to
PW came from the come because
119/Exh.729/ window which of which there
Vol. 33 was putout by was difficulty in
her fatherin breathing. She
Both her law.. saw the coach
fatherinlaw (Para on fire when
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and motherin 2/Pg.11337) she came out.
lawdied. (ara
2/Pg.11337).
Cross
improvement
proved. (para
5/pg. 11339).
15 Babubhai 24 Windo Swords, Stonespelting Smoke started 1st time
Somdas Patel w near Dhariya, (para2/pg. from the identification
PW seat ironrods, 11353) Godhara end of of a) Yunus
122/Exh.733/ no. 24 and other the coach. Abdul haq
Vol.33 (para weapons, (para Samol (A
3/Pg.1 (para2/pg. 2/pg.11352) 2/SC No.
1354). 11353) the incident of 78/09) (para
Cross stone pelting 2/pg. 11353)
improvemen and Rolepresent
t proved. development of in the mob
(para smoke was (para
6/pg.11356 sudden, due to 2/pg.11353)
) which there
was difficulty in Cross He
breathing. admits that
(para3/pg. he had not
11354) Cross stated in his
improvement 1st police
proved. (para statement
6/pg.11355) that he can
identify the
members of
the mob and
had not given
any
information
about the age,
body
structure or
identification
related
features
though he
had stated he
can identify
some of them
he had stated
he can
identify some
of them if
shown to him.
(para
5/pg.11355;
para8/pg.
11356) He
admits that
he cannot
remember
detail facial
features
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details of the
person
identified in
the dock by
him as it is
not possible
to remember
those details
in 2 minutes
(para8/pg.
11356)
16 Premaben 2529 Off Not stated. Stone (para After stone
Ayodhyaprasad side 3/pg. 11147) pelting, shouts
Mali windo of fire. When
PW89/Exh. w she came out,
648/ vol.33 (para she saw that
3/Pg. the coach was
Shailendraher 11148) on fire.(para
nephew died. 3/pg.11147 to
11148) Cross
She admits that
the smoke
started
suddenly and
spread in the
entire coach
resulting
breathlessness.
(para
6/pg.11149)
17 Nitinbhai 33 Windo Not stated Stonepelting He exited the An attempt is
Chaturbhai w broke window coach upon made to
Patel (para glasses. (para seeing fire and identify the
PW120/Exh. 2/pg. 2/pg. 11342). smoke. Due to accused for
731/ Vol. 33 11342) smoke, he had the 1st time in
. felt suffocation. the court.
Upon exit, he
saw the coach
on fire. (para
2/pg. 11342)
He admits that
he had told in
his police
statement that
the members of
mob might
have set the
coach on fire
with some
inflammable
material. (para
9/pg. 11345).
He also admits
that windows
were not
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opened till the
time there was
smoke in the
coach. (para
10/pg.11346)
18 Vandanben 33 Windo Not stated Stones from There was
Ramanbhai w broken smoke in the
Patel, (para window. coach and fire
PW 2/pg. (para and passengers
95/Exh.663/ 11177) 2/pg.11176) shouted 'fire'
Vol. 33, 'fire'. Breathing
was difficult
2005 statement because of
smoke. (para
2/pg.11176 to
11177) she saw
the coach on
fire after she
came out and
had seen
Prahlabhai and
Savitaben taken
out of the
coach with
burn injuries.
(para
3/pg.11177)
The smoke was
very
inflammable
and it was so
dense that even
a nearby person
was not
visible.;
However, she is
not able to say
as to what was
caused the
smoke. She
was having
breathing
problems as she
was on the
upper berth. At
that time the
passengers on
the floor of the
coach were
shouting the
there is fire in
the coach.
(para
6/pg.11178).
19 Satishmukar 33,34 Windo Upon firing Stones from Fire started
Ravidatta ,35 w by the window (para from the back
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Mishra (para police, a 2/pg. 11183) side resulting in
PW96/Exh. 2/pg. mob of smoke. While
666/ Vol. 33 11184) muslim he was trying
men, to escape with
women and his wife and
children daughter, the
having fire took
pipes, Lakdi, strength and
Sword, rods, followed him.
dhariya and He re4ceived
karboy full burn injuries
of liquid when he was
were chases trying to come
away. (para out of the
2/pg.11184, windows.
para6/pg. (para2/pg.
11187). 11183 to
11184) Cross
improvement
put. (para
6/pg. 11187).
The coach had
caught fire at
the time he
came out from
the window.
(para9/pg.
11188)
20 Hetalben 35 Not Stone Burning kakda Kakdas
Babubhai Patel stated pelting and and followed by
PW weapons in inflammable inflammable
84/Exh.634/Vo general. materil from material
l. 32 (para the broken followed by a
3/pg.11109 window. flash. There
Lalitabendied. ) (para3/pg. was not
Manguben 11109) visibility due to
died. intense smoke.
Lack of
Prahlabhai breathing,
died at hospital suffocation and
while receiving heat could be
burn felt on the eyes
treatment. and ears. After
she was pulled
out, she was
the coach on
fire. PW157
had suffered
burn injuries.
(para
3/pg.11109)
because of the
kakda thrown
inside followed
by the
inflammable
material, the
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reksine seat
and the
passengers
luggage caught
fire and there
was smoke in
the coach. She
had fallen
unconscious
inside the
coach. (para
7/pg. 11111)
21 Parchottambha 35 Door Sticks, Pipes Stonepelting Coach set on
i (para and iron broke window fire because of
Gowardhanbha 2/pg. rods. (para glasses and throwing of
i Patel 11254) 2/pg. ironrods. burning kakda.
PW107/Exh. 11254) Inflammable (para2/pg.
690/ Vol. 33 liquid was 11254)
poured,
Statement of followed by
2005 burning kakda
from the back
side window.
(para2/pg.
11254)
22 Savitaben 37 Windo Not stated Stone pelting Because of
Tribhuwandas w broke the throwing of
Sadhus (para window and burning kakda
2/pg.1 then burning and petrol like
PW157/Exh. 1802) kakda and material, there
828 petrol like was fire from
substance was Godhraside as
Lalitabendied thrown. (para well as where
Mangubendied 2/pg. 11801) . they were
Cross sitting . One
improvement Kakda fell on
denied but her shawl
proved which she
through the threw. One
S.161 of Cr.. kakda also fell
PC statement on her shen she
recording came down
officerPW from upper
222/ Vol. berth. (para
37/para9/pg. 2/pg. 11801 to
12480. 11802). Cross
improvement
denied but
proved through
the sec. 161 of
Cr. PC
statement
recording
officerPW
222/ vol. 37/
para9/pg.
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12480
23 Jayantibhai 40 Windo Sticks, Stone pelting Fire started 1st time
Umeddas Patel w dhariya, broke the because of identification
PW (para pipe carboy windows and kakdas thrown of a0 Rajsh
150/Exh.812 3/pg.1 etc. kakda came inside because Jussein Mitha
1658 (para3/pg. from the of which there (A1/SC No.
12658) windows. was smoke 81/09), b)
(para inside due to Yunus Abdul
3/pg.11658) which he was Haq Samol
Cross feeling (A/2/SC No.
improvement suffocated 78/09), (c)
put. (para (para3/pg. Shokat Faruk
10/pg.11662) 11658, para Pataliya (A
7/pg.11660). 5/SC No.
The smoke did 75/09) and
not start (d)
immediately Mohammed
after throwing Saiyed Abdul
of kakda but he Salam Badam
cannot estimate (A4/SC No.
the time after 85/09) (para
which smoke 2/pg. 11658
was seen. to 11659)
(para7/pg.
11660) Role Present
in the mob
(para
2/pg.11658)
Cross He
admits that
he cannot say
about age or
physical
features of
the persons
identified in
the court.
(para4/Pg.
11659; para
11/pg.
11663; para
12/pg. 11663
24 Gayatriben 4146 Onside Sword, rod, Inflammable On account of 1st time
Harshabhai windo pipe carboy liquid from inflammable identification
Panchal w. etc. (para carboys liquid followed of a) Habib
PW175/Exh. (para 3/pg.12068 alongwith by the burning Binyamin
891/ Viol. 35 3/pg. ) burning object object thrown Behra (A
12068) was thrown in the coach, 2/SC No.
Harshadbhai inside from the there was 75/09) b)
Panchal, windows. smoke which Abid Hussain
Nitaben (para3/pg. was to an Abdul Karim
Panchl, 12068) (para extent that they Shaikh (A
Pratikshaben 18/pg. could not see 31/SC No.
Chayaben, 12076). any thing inside 69/09, (c)
travelling with and she lost Idris Abdulla
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her died . contact with Umraji (A
her family 24/SC No.
(para3/pg. 69/09), (d)
12068) Mohammed
Jabir Abdulla
Kalam, (A
44/SC No.
69/09), (e)
Jabir
Bininyamin
Behra (A
2/SC No.
72/09), (f)
Ibrahim
Abdul Razak
Samol (A
5/SC No.
78/09 and (g)
Sadikkhan
Sultankhan
Pathan (A
11/SC No.
69/09) (para
5/pg. 12069)
Role 7
accused
persons seen
by her when
she had got
out on the on
side. (para
5/pg. 12069)
Cross she
admits in her
police
statement
dated 8.3.02,
that, she
cannot
identify any
of the accused
persons even
if shown to
her. (para
7/pg, 12070);
she also
admits that,
she has not
given any
physical
description or
identification
features of
those person
identified by
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her. (para
10/pg.
12071); She
also admits
that, she had
told the SIT
that, she does
not wish to
say anything
more than
what had
stated in her
police
statement.
(para13/pg.
12073).
25 Hariprasad 43 NW Not stated As the window When
Maniram Joshi Door, of seat # 41 passengers had
PW (para 46 remained gathered near
86/Exh.638/ 3/pg. opened, the Seat # 72 side,
Vol. 33 11131) stones came suggestion of
from there. fire came from
Wifedied (para3/pg. seat # 72 side.
11131) Plumes of
because of smoke resulted
stonepelting, in suffocation.
large number (para3/pg.
of passengers 11131) cross
went on upper suggestion
berth. (para came loudly
3/pg. 11131 & from # 72 that
para there is fire in
6/pg.11133) the coach, he
admits that he
had seen fire in
seat # 33
compartment
(para6/pg.
11133) at the
time when he
was scrawling
on the floor
towards Nw
door, his
backside and
hand of his
jacket as well
as the cap had
burnt effect
alongwith his
hand and face.
(para9/pg.
11134).
26 Raju 45 Off Not stated He went Went towards
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Kripashanker side towards the the toiletside
Pandey PW Door toiletside passage to hide
78/Exh.615/ (para passage to from stone
Vol. 32 2/pg. hide from pelting. At that
11067) stone pelting. time some
(para2/pg. passenger
11067. shouted that
there is smoke
in coach. Does
not know from
which side the
smoke came
from. He and
others exited
from door after
it was opened
by someone.
Once out, he
saw S6 coach
on fire and it
was burning
from back side
(para2/pg.
11067)
Cross
improvements
proved. para
6/pg.11068
27 Maheshbhai 47 Door Stick, Iron Intensive Smoke was
Jayantilal Shah (Para rods and stonepelting caused due to
PW87/EXH. 3/Pg. other was going on. some burning
641/Vol.33 11139) weapons. Then windows object thrown
(Para were broken in the backside
3/P.g11136 by stone and shouts
) Cross pelting and came that the
Improvemen pipes. Burning coach has been
t proved. kakdas, bulbs set on fire from
(Para5/Pg. and stones the backside.
11138) were coming Thereafter the
through the coach caught
windows. fire. He was
(Para feeling
5/Pg.11138)P suffocated and
W82 had nausea
when he came
out. (Para
3/Pg.11137;
Para
6/Pg.11139)
Cross
Improvement
proved. (Para
5/Pg.11138 to
11139)
28 Rajendrasingh 51 Windo The Stonepelting Smoke started
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Ramfersingh w members of and attack in the backside
Rajput (Para mob had with sticks and (Para
PW77/EXH. 3/Pg.1 sticks and pipes broke the 3/Pg.11060) it
614/Vol.32 1060) other windows. was not
weapons. (para possible to see
(Para2/Pg. 3/Pg.11060) other people
11059) Cross because of
Cross Improvement smoke. (Para
Improvemen proved. (Para 8/Pg.11061)
t about 13/Pg.11063) He came out
sticks He heard 24 from the
proved. stones falling window
Para on the coach. because of
13/Pg. (Para smoke. (Para
11063) 12/Pg.11063) 12/Pg.11063)
29 Mandakiniben 54 Windo Carboy, Acid bulb and Because of the 1st time
Nilkanth w Dhariya, burning kakda throwing of identification
Bhatiya (Para Swords, from window. inflammable of a)
PW 3/Pg. pipe. (Para (Para material in the Usmangani
168/EXH./867 11956 3, 3/Pg.11956); back side fire Mohmmad
/Vol.3 Pg.11956) Cross started Coffeewala
Cross Improvement resulting in (A4/S.C.
Improvemen proved. (Para smoke. Stone No.78/09),
t proved. 17/Pg.11963) pelting, kakda, (b) Siddiq
(Para suffocation, felt Ibrahim
12/Pg.1196 unconscious, Hathila (A
0) she was taken 1/S.C.
out. (Para No.86/09)
3/Pg.11956) (A52/S.C.
Cross No.69/09)
Improvement (Para4/P.g
proved. (Para 11957)
12/Pg.11960) Role People
in the mob
standing on
the metal
heap who had
carboy and
weapons.
Cross She
admits in her
police
statement
dated 63
2002, that,
she is not able
to give any
detail as to
the body
structure,
clothings
worn by
them,
identification
features etc.
(Para
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13/Pg.1196);
She also
admits that,
had not stated
before the
police as to
whether she
will be able to
identify
anyone or not
as the police
did not ask
her. (Para
15/Pg.11962)
;
30 Nilkanth 56 Windo Pipes, Stone, petrol The smoke had
Tulsidas w dhariya, and acid bulb started from
Bhatiya (Para swords, from outside. the back
PW75/EXH. 4/Pg. plastic (Para side/Dahod
610/Vol.32 11043) carboy in 3/Pg.11043; Side. (Para
the hand. Para18/Pg. 3/Pg.11043)
Burn injuries (Para3/Pg. 11050) Stone however, this
from thighs to 11043) pelting done improvement is
knees due while Crossentire from the metal proved in the
escaping from improvemen heap. (Para cross. (Para
the windows. t admitted. 14/Pg.11048) 14/Pg.11043)
(Para (Para
4/Pg.11043) 14/Pg.1104 He climbed up
9) to escape stone
pelting and he
Cross He noticed smoke.
had seen Then there was
people with denser smoke
plastic because of
carboy in which he was
the hand. feeling
(Para 18, suffocated.
Pg.11051) Thereafter the
fire spread. In
order to escape
from fire,
people went
towards the
door. (Para
4/Pg.11043)
CrossThe
smoke was
coming out in
large quantity
and was
chemicallike.
(Para
10/Pg.11046)
31 Rakeshbhai 56 Door Attacking While he was Members of the Hasan Ahmed
Kantilal Patel near the near the toilet mob had Charkha was
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PW85/Exh. seat#7 windows side, thrown some pointed out in
637/Vol.32 2 with passengers liquid inside the court for
(Para weapons were shouting and some more the 1st time as
2005 statement 4/Pg.1 like pipes, that train is kakdas after being part of
hence omitted 1120) sticks etc. being set on the intial ones the mob that
here. (Para4/Pg. fire by were doused by was pelting
11119) throwing water. There stones w.o.
kakdas. Some was smoke and any reference
Hindi speaking suffocation in to name or
persons had the inner part features.
doused the of the coach. (Para5/Pg.
said burning The smoke only 11120) Cross
kakdas by increased after He has
pouring water. opening of the admitted that
At this time offside he had not
the mob was windows. He stated in his
shouting that, had seen fire in police
“UNHONE the coach from statement
BUJA DIYA, the middle that he can
AUR LAO, which was identify those
AUR JALAO”. coming out who were
Thereafter, from the (Para pelting
they had 4/pg.11119 stones.
thrown some 11120) (Para14/Pg.
more liquid 11125; Para
from outside Cross He 15, Pg.11126)
and again admits that he
through came to know
burning about the
kakdas and smoke based on
because of the the shouts
burning smoke raised by
was caused. someone in the
(para4/Pg. front part of
11119) Cross the coach.
Improvement (Para
proved. (Para 13/Pg.11124)
14/Pg.11125)
Cross
improvement
proved. (Para
14/Pg.11125)
32 Virpal 58, NE Not stated. Stonepelting Breaking of
Chhedilal Pal 59, side broke the bottles (Para
PW82/EXH. 61 door. windows. 10/Pg.11099)
627/Vol.32 (Para (Para in the backside
(officer of the 8/Pg.1 7/Pg.11094) resulted in
Indian Air 1094; Heard sound smoke which
force) Para of breaking of was chemical in
12, bottles and nature and
Sima Pal - died Pg.110 this smoke was causes
96; suffocating in suffocation. He
Para nature. (Para saw fire in the
15/Pg. 8/Pg.11094). backside after
11097) However, he he had jumped
has admitted out from the
that, he has door. He had
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not stated this also seen his
fact in his wife's shawl,
police sari and her
statement. bag burning.
(Para17/Pg. However,
11098) someone from
S7 coach was
able to get in
and was able to
remove the
shawl and
doused the
burnt part of
the Sari and
pushed her
down from the
door. (para
8/Pg.11094)
Smoke started
in the coach
only after he
heard a sound
and this smoke
spread in the
entire coach.
This smoke was
poisonous and
was chemical in
nature. (Para
12/Pg.11096)
The smoke had
spread in the
entire coach
after he had
come out.
(Para16/Pg.
11098)
33 Bachubhai On Door Pipes, Something was Something was
Dhanjibhai the near hockey, poured in the poured in the
Ladwa Floor seat#7 sticks, backside due backside due
PW94/EXH. in 57 (Para sword, to which there to which there
662/Vol.33 62 9/Pg. karboy etc. was fire. was fire. When
11172) (Para Burning kakda he came out of
2005 statement 5/Pg.11168 was also the coach, then
) thrown from he saw the
Cross the windows. flames coming
improvemen (Para out of the
t proved. 5/pg.11168) windows.
(Para Cross (Para5/Pg.
8/Pg.11171 improvement 11168)
) proved. (Para Cross
8/Pg.11171) improvement
He has not proved.
seen anyone (Para8/Pg.
pouring the 11171)
liquid. (Para
15/Pg.11174)
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34 Subhash 69 NE Not stated. Stones While he was
Chandra Door breaking glass standing
Ramchandra opened of windows. holding his
Mishra by him. (Para polioaffected
PW114/EXH. (Para 2/pg.11305) sister and his
719/Vol.33 2/Pg.1 mother near
1305) the toilet, he
saw that 2
youngsters had
kept hawstack
on the window
and smoke
started
spreading
because fire
was put to the
coach in this
manner.
Because of
difficulty in
breathing due
to smoke, he
came out. He
saw the coach
on fire when he
looked back.
(Para12/Pg.
11305)
Cross
improvement
proved.
(Para
12/Pg.11309)
35 Shantilal 70 Door. Not stated. Stone pelting Coach was on
Shankarbhai (Para done by 50 fire when he
Patel 2/Pg. 100 persons came out of the
PW93/EXH. 11144) resulted in door. (Para
642/Vol.33 breaking of 2/Pg.11144)
windows.
(Para
2/Pg.11144)
36 Shardaben 72 North Not stated. Poured petrol Coach was on
Manubhai Patel each and threw fire when she
PW93/EXH. Door. burning Kakda came out of the
657/Vol.33 inside the door. (Para
(Para coach. 2/Pg.11162)
Some co 2/Pg. (Para2/pg. When standing
passengers who 11162) 11162) near the toilet
went inside the side of the
coach died. coach, she
notice that
2005 there was
statement. smoke after
throwing of
burning kakda.
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(Para
6/Pg.11164)
37 Prakash Harilal Near North Not stated. Stonespelting. The fire started
Teli the East (Para from the out
PW99/EXH. Daho Door. 3/Pg.11210) side toilet near
674/Vol.33 dside (Para the place where
toilet. 3/Pg. they were
2005 11210) sitting. At this
statement. time there was
smoke in the
coach and he
had difficulty in
breathing. He
and his family
members came
out after the
door came to
be opened.
When he
looked back at
the coach, fire
had spread.
9Para
3/Pg.11210)
He has not seen
any fire flames
at the time of
sighting smoke.
(Para8/Pg.
11212) Cross
improvement
proved. 9Para
8/Pg.11213)
38 Rampal Jigilal Near North Not stated. Stonespelting At this time
Gupta the East (Para there was
PW102/EXH. Daho Door 2/Pg.11225) smoke in the
680/Vol.33 dside was toilet near the
toilet. opened place where he
2005 . was sitting. He
statement. (Para and his family
2/Pg.1 members came
1225) out after the
door came to
be opened.
Because of
smoke he had
difficulty in
breathing.
When he
looked back at
the coach, fire
had started
from the door
that he had got
out from. Many
people were
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able to come
after the fire
had started.
(Para
2/Pg.11225;
Para
6/Pg.11227)
39 Somnath Near NE Sticks and Stone pelting He had
Sitaram Kahar Daho Door rod. (Para resulting in difficulty in
PW103/EXH. d side was 2/pg. breaking of the breathing when
681/Vol.33 lugga opened 11232) glass of he was
ge . (Para windows & standing near
2004 rack. 2/Pg. doors. (Para the toiletside
statement, 11232; 2/Pg.11232) in order to
hence omitted Para escape stone
here. 9/Pg.1 pelting. (Para
1235) 2/Pg.11232)
His eyes were
burning
because of
smoke. (Para
7/Pg.11234)
The door came
to be opened
when there was
smoke in the
coach and they
came out.
(Para
9/Pg.11235)
40 Rambhai Not NW Not stated. Sprinkled Coach set on
Bhudardas stated Door Petrol in the fire by
Patel (Para back side and sprinkling of
(PW123/EXH. 2/Pg.1 thew kakda so petrol in the
734/Vol.33 1359) that, liquid backside and
was coming throwing of
from the back kakda. He felt
side suffocated
(AATHAMAN because of the
A BHAGE smoke and
THI). (Para became
2/Pg.11358 unconscious.
11359) Cross (Para2/Pg.
Improvement 11359) he felt
proved. (Para suffocation due
5/Pg.11360) to smoke.
(Para
3/Pg.11359)
Cross
Improvement
proved. (Para
5/Pg.11360)
41 Hirabhai Not Windo Dhariya, Stones, petrol Due to 1st time
Umeddas Patel stated w Sticks, Iron like substance throwing of the identification
PW160/EXH. (Para rod. (Para and burning inflammable of a) Sabir
839 3/Pg. 3/Pg.11843 kakda was material Hussain
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11843) ) thrown from followed by Abdul Rahim
the window. burning Kakda, Badam (A
(Para there was 1/S.C. No.
3/Pg.11843) smoke in the 70/09) and
coach resulting (b) Yasin
in suffocation Habid Malik
and burning of (A14/S.C.
the eyes. (Para No.69/09)
3/Pg.11843) (Para
3/Pg.11843)
RoleOut of
the people
who were
pelting
stones. 9Para
3/Pg.11843)
Crosshe
admits in his
police
statement
dated 85
2002, that, he
can identify
any person
out of those
already
arrested.
(Para4/Pg.
11844); he
admits that,
he had not
given any
specific
identification
features on
the basis of
which he was
able to
identify the
two persons
in the court
(Para
11/Pg.11847)
42 Veenaben Not Windo Dhariya, Some liquid Throwing of
Mafatbhai Patel stated w Pipes, was thrown in liquid and
PW83/EXH. . (Para Sword, the coach and thereafter
630/Vol.32 4/Pg. Carboys etc. thereafter kakda resulting
11102) (Para kakda was in fire in the
3 of her co 3/Pg.11102 thrown. (Para coach. (Para
passengers 0 3/Pg.11102) 3/Pg.11102)
died. CHECK
43 Jitendra Not Door. Not stated Stonepelting The fire started
Mangalgiri stated (Para about the broke the because of
2/Pg.1 same window and petrolbomb
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1380) Petrolbomb being thrown
was thrown inside. Many of
inside. (Para his co
2/Pg.11380) passengers felt
Cross suffocation due
Improvement to smoke.
proved. 9para (Para2/Pg.
3/Pg.11381) 11380 to
11381) Even he
felt suffocation
because of
smoke. 9Para
3/Pg.11381)
He admits that
fire started
sometime after
stonepelting.
(Para
3/Pg.11381)
Cross
Improvement
proved. (Para
3/Pg.11382)
44 Keshubhai Not Not Not stated From the There was fire
Devjibhai Patel stated stated. about the window, in the coach.
PW91/EXH. same. burning bag, There was
651/Vol.33 Kakda, gabha heavy smoke in
came to be the coach and
Bhimjibhai and thrown. (Para nothing was
Lakhubhai - 3/Pg.11156) visible which
died. Cross caused
improvement suffocation. He
proved. (Para saw coach on
11/Pg.11159) fire after
getting out.
(Para3/pg.
11152 to
11153) He
admits that 1st
there was
smoke in the
coach because
of which
passengers
shouted that
there is fire and
this smoke
spread in the
compartment.
The smoke was
so intense that
he lost his
consciousness.
(Para
9/Pg.11158 to
11159) Cross
improvement
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proved. (Para
11/Pg.11159)
45 Maheshkumar Not Windo Not stated. Stones were Sometime after Has tried to
Cheljibhai stated w coming from stonepelting, identify the
Chowdhary (Para the windows. smoke started. members of
PW98/Exh. 2/Pg. (Para He could smell the mob but
670/Vol.33 11205) 2/Pg.11204 to of petrol being has not been
11205) sprinkled. He able to do so.
was feeling
suffocated due
to the smoke.
(Para2/Pg.
11205) Smoke
started in the
train very
suddenly after
stonepelting.
(Para5/Pg.
11206) Cross
Improvement
proved. (para
6/Pg.11207)
46 Amrutbhai Not Not stated Continuous He could smell
Joitaram Patel stated about the stonepelting. something in
PW121/EXH. same (Para2/Pg. the coach
73/Vol.33 11348) followed by
smoke with
people raising
shouts of fire.
He felt
suffocation due
to smoke.
(Para2/Pg.
11348 to
11349) Cross
improvement
proved. (Para
6/Pg.11350)
47 PW92 (is not
in the paper
book)
48 Mukeshbhai S7 NA Pipes, sticks, On S6 coach, From S7 1st time
Ramanlal dhariya, the mob thew window, he identification
Makwana spear, many acid bulbs and saw smoke and of a)
PW109/Exh. white/yello sprinkle the coach Mujjaffar
695/Vol.33 w colour inflammable immediately Usman Hayat
karboy of 10 liquid after caught fire. (A5/S.C.
liter breaking of the (para2/Pg. No.69/09).
capacity. windows. 11265) (Para3/Pg.
9Par2/Pg. (Para2/pg. 11266)
11265) 11265) The
Cross sprinkling of CrossHe
improvemen petrol was admits that
t proved. taking place he had not
(Para from karboy stated in his
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20/Pg.1127 below the police
2) coach. (Para statement
18/Pg.11271) dated
7/03/2002
that he can
identify the
members of
the mob as
and when
they are
arrested.
(Para9/Pg.
11268) He
has not given
any
information
about the age
and body
structure
related
information
in his police
statement.
(Para11/Pg.
11269)
RoleIn the
mob. (Para
3/Pg.11266)
49 Bhupatbhai S7 NA Sticks, Were putting Due to this fire 1st time
Maniram Dave pipes, petrol on the started in the identification
PW110/Exh. swords, kakdas and coach and of a) Abdul
696/Vol.33 plastic throwing them smoke started Sattar Ismail
carboys. inside and and when he Giteli (A
(Para were came out of S7 13/S.C.
2/Pg.11276 sprinkling coach, he saw No.69/09)
) petrol on the S6 coach on (Para2/Pg.
coach from the fire. (Para 11277)
karboy. (Para 2/Pg.11276) CrossHe
2/Pg.11276) admits that
he had not
given any
information
about the age,
body
structure,
other
identification
feature
related
information
in his police
statement.
(Para
11/Pg.11281)
Rolein the
mob. (Para
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2/Pg.11277)
50 Gandaji S8 NA Not stated. Stone pelting Not stated. Has tried to
Ramsinhji on his coach. identify the
Thakor (Para2/Pg. members of
PW117/Exh. 11322) the mob but
726/Vol.33 has not been
able to do so.
(Para2/Pg.
11323)
TABLEB : Learned counsel appearing for the defence has relied on
the following table to show that Coash No.6 was a closed space /
coach No.S/6 was overcrowded / place of escape from S/6 coach:
1 2 3 4 5
NAME OF SEAT PARTICULAR – S/6 WAS PARTICULAR PLACE
PASSENGER NO A CLOSED PLACE S/6 WAS FROM
OVERCROWDE WHERE
D THE
PASSENGE
R ESCAPED
Dilipkumar 1 (PW124 Dilipkumar Door Para
Jayantilal Patel Jayantilal Patel 2, Pg.11363
PW124/EXH [Karsevak] /EXH
738 738/Vol.33 – the doors
and windows came to be
closed in S6 when the
train stopped for the 2nd
time. (Para17/Pg.11373
& Para26/Pg.11377).
Govindsinh 3 PW202 Gonvidsing PW22 Northside
Ratansinh Ratansing Panda Gonvindsing door (para
Panda [Armyman]/Exh. Ratansing 3,
PW.202/Exh. 1024/Vol.36 After he saw Panda Pg.12249)
1024 the flames of a rapidly [Armyman]/Ex
spreading fire and when h.1025/Vol.36
he had difficulty in the entire coach
breathing, he came down was completely
from the top berth. When full of passengers
tried to open the offside and there was a
door towards the engine large number of
side of the coach, he bajrang dal
found the same to be members. (Para
wound up with wire and 29/ Pg.12248)
there were belongings as
well. He was able to open
the door only with the
help of 23 other people.
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(Para3Pg.12249) He also
admits in cross that when
the bajrang dal people
had boarded the train
after it had briefly
stopped, they told all the
windows and doors to be
closed as something had
happened. (Para
8/Pg.12253)
Pujaben 4,5,6 The passengers started to The passage near Jumped
Bahadursinh close the windows of the the door as well from the
Kushwaha coach when the mob as the toilet was vestibule
PW81/EXH attacked with stones and full with the passage side
625 weapons (PW81 passengers and towards
Pujaben Bahadursingh karsevak that Vadodara
[Passenger]/ Exh. any movement
625/Vol.32/Para2/ was difficult and
Pg.11085) and after these that on each 2
was smoke, the people Karsevak were
inside the coach were sleeping. (PW
raising shouts ‘open the 81 Pujaben
door’. (para9/Vol. Bahadursingh
32/pg.11088) She also [Passenger]/
says that the karsewaks Exh. 625/Para
had closed the vestibules 6/Vol.32/pg.
door towards the 11086 to
Vadodaraside as well. 11087]
(Para13/Pg.11090)
Radheshyam Near 7 Window
Ramshanker Para 2,
Mishra Pg.11298
PW113/EXH
715
Gyanprakash 8 The passengers started to S6 had 150200 At the time
Lalanprasad close the glass and iron passengers. (PW when there
PW80/EXH. strip windows as well as 80 was intense
621 the doors of the coach Gyanprakash smoke in
when stonepelting began Lalanprasad the coach,
near the Acabin (PW80 Chaurasiya the door
Gyanprakash [Passenger]/ came to be
Lalanprasad Chaurasiya Exh.621/Para opened and
[Passenger]/Exh.621/ 2/Vol.32/pg. then they
Vol.32/Para 11078) Even were able to
7/Pg.11081) and many though he had get down.
people, including him and reservation near Para7,
his family members were Seat no.72, yet Pg.11081
able to escape from the he did not go
coach as someone opened there as the door
the door in the offside of on that side as
the coach. (PW80 well as the
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Gyanprakash passage was full
Lalanprasad with the
Chaurasiya/ Exh.621/ passengers and
Vol.32/ Para no movement
7/Pg.11081) was possible.
(Para5/
Pg.11080)
Pravinkumar 8 PW170 Pravinkumar PW170 Door (Para
Amthalal Patel Amthalal Pravinkumar 14/Pg.
PW170/EXH. Patel/Exh.873/ Vol.35 Amthalal 12008)
873/Vol.35/ because of excessive stone Patel/Exh.873/v
pelting they had closed ol.35 there was
the windows. (Para3/Pg. overcrowding in
12000) even though he the coach
says that the doors and because of the
windows (onside and off passengers and
side) came to closed when kasevaks and
the train stopped for the they were sitting
2nd time. (Para10/Pg. in the space
12005) between the
seats,
compartment
and toilet
passages. (Para
8/Pg. 12004)
Hariprasad 11,13 They saw a mob of 200 PW97 NorthWest
Munalal 300 people with weapons Hariprasad side door
Sharma and therefore they closed Munnalal Para 8,
PW97/EXH the windows. (PW97 Sharma/EXH. Pg.11199
668 Hariprasad Munnalal 668/Vol.33
Sharma the S6 was
[Passenger]/EXH. completely full of
668/Vol. 33/Para2/Pg. passengers and
11196) so he sat on the
floor beside his
reserved seat.
(Para1/Pg.
11195) there
were many such
passengers who
were sitting on
the floor. (Para
8/ Pg.11199)
Amar Kumar 22 & 24 Passengers had closed the S6 had 7580 From the
Jamnaprasad (reserve windows (PW79 VHP, BD and door near to
Tiwari d in Amarkumar Ramsewaks. seat #24
PW79/EXH. 17,18,19 Jamnaprasad Tiwari (PW79
619 & 21) [Passenger]/Exh.619/V Amarkumar
ol.32 / Para Jamnaprasad
4/Pg.11071) Tiwari
[Passenger]/Ex
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h.619/Para
3/Vol.
32/pg.11070 &
Para7/Pg.
11073)
Poonamkumar 24 PW119 Door para
Sunilkuar Punamkumari 2, Pg.
Jannoprasad Sunilkumar 11337
Tiwari Tiwari
PW119/EXH. [Passenger]/EX
729 H.729/Vol.33
People were
sitting in the
passage, on the
seats as well as
on the top berth
of the seat in the
compartment.
(Para3/
Pg.11338)
Babubhai 24 PW122 Babubhai From the
Somdas Patel Somdas Patel window
PW122/EXH. [Karsevak]/EXH.733/ near the
733 Vol.33 There was seat no. 24
extensive stone pelting on where he
the train because of which was sitting.
the windows and doors Para 3, Pg.
came to be closed. (Para 11148
3/Pg. 11354)
Premaben 2529 The coach was Off side
Ayodhyaprasad extremely Window
Mali crowded. There para 3,
PW89/EXH. were passengers Pg.11148
648 Connected sitting in the
to PW coachpassage
90/Exh.650 and other open
spaces. There
were many
people sleeping
on the reserved
seats as well.
(PW89
Premaben
Ayodhyaprasad
Mali
[Passenger]/EX
H.648/Vol.
33/Para
5/Pg.11148)
Vandanaben 33 PW95 Vandanaben PW96 Window
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Ramanbhai Ramanbhai Patel Satishkumar (Para2/Pg.
Patel [Karsevak] /Exh. Ravidutt 11177)
PW120/EXH. 663/Vol. 33 because of Mishra/EXH.
731 stone pelting the window 666/Vol.33
and doors came to be the S6 was
closed (Para completely full of
2/Pg.11176). Even as passengers from
other people were Lucknow station
escaping from a door that and other
came to be opened, passengers were
however, she was not able sitting on their
to (para2/Pg.11177) reserved seat.
(Para4/Pg.
11184)
Nitinbhai 33 There was extensive stone Window
Chaturbhai pelting and because which para 2,
Patel the windows came to be Pg.11342
PW120/EXH. closed (PW120
731 Nitinbhai Chaturbhai
Patel [Karsevak] /EXH.
731/Vol. 33/Para2/
Pg.11342) and they
remained closed till there
was smoke in the coach.
(Para10/ Pg.11346)
Satishkumar 33,34,35 PW96 Satishkumar Window
Ravidatta Ravidutt Mishra -
Mishra Passenger /EXH.
PW96/EXH. 666/Vol.33 Because of
666 the intensity of stone
pelting, the windows
came to be closed. (Para
2/Pg.11183 to 11184 &
Para5/Pg.11186)
Hetalben 35 PW84 Hetalben There was Not stated.
Babubhai Patel Babubhai Patel arrangement for
PW84/Exh.634 [Karsevak]/Exh.634 2200 karsewaks
/Vol.32/Para7/Pg. to go from
11111 before becoming North Gujarat to
unconscious, he had un Ayodhya on
successfully tried to open 22/02/2002 and
the door of the train. when the train
returned from
Ayodhra then it
was full of
karsewaks. (PW
84 Hetalben
Babubhai Patel
[Karsevak]/Exh
.634/Vol.
32/Para6/Pg.
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11110)
Parshottambhai 35 Because of the fire and The S6 coach Door Para
Gowardhanbhai resulting smoke, in order was totally jam 2, Pg.
Patel to help the escape, the packed with 11254
PW107/EXH karsewaks opened the off karsewak and
690 side door from which passengers. (PW
many people came out. 107
(PW107 Purshottambhai
Purshottambhai Gordhanbhain
Gordhanbhai Patel Patel
[Karsevak]/ [Karsevak]/EX
EXH.690/Vol.33 /Para H.690/Vol.
2/ Pg.11254) 33/Para
10/Pg.11258 &
Para13/
Pg.11259) and
there were
approximately
100 karsewaks
travelling. (para
12/Pg.11259)
Savitaben 37 PW157 Savitaben PW157 Window
Tribhuwandas Tribhovandas Sadhu Savitaben Para 2, Pg.
Sadhu PW /Exh.828/Vol.35/Para Tribhvandas 11802
157/EXH828 2/ Pg.11801 When the Sadhu/Exh.
mob started to pelt stones, 828/
the doors and windows Vol.35/Para
came to be closed. The 3/Pg.11802 as
S.161 Cr.P.C. recording the coach was co
officer has proved the crowded that
omission of PW there was no free
157(Savitaben movement of
Tribhovandas Sadhu) people.
had in her police
statement dated
28/01/2005 she had said
that 'after some one had
opened the engine side
offside door, then there
was a scramble of people
to get out'. (PW243
Suryakant Bhudarbhai
Patel, P.I. LCB/ EXH.
1393/EXH.38/PARA
19/PG.13122)
Jayantibhai 40 PW150 Jayantibhai PW150 Window
Umeddas Patel Umeddas Jayantibhai Para 3,
PW Patel/Exh.812/Vol. Umeddas Pg.11658
150/EXH.891 34/Para3/Pg.11658 & Patel/Exh.
Para7/Pg.11660 & 812/vol.34 - a
Para10/Pg.11662 S6 passenger
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When the mob started to says that all the
pelt stones, the doors and coaches of
windows came to be Sabarmati
closed. Express was
overcrowded
with passengers
and karsewak
and that it was
difficult even to
sit properly.
(para5/
Pg.11659)
Gayatriben 4146 PW175 Gayatriben PW175 Window on
Harshadbhai Harshadbhai Gayatriben the onside
Panchal Panchal/Exh. 891/Vol. Harshadbhai (Para
PW175/EXH. 35 At the time of 2 Panchal/Exh.
nd
3/Vol.
891 stoppage, the windows 891/Vol. 35 35/Pg.
were closed due to the entire coach 12068)
excessive stone pelting. was completely
(Para3/Pg. 12068) full of
Admits in the cross passengers and
examination that even at karsevaks with
the time when the train the luggage of
left Godhara station, many the passengers
karsewak got on to the kept in the
train running and told to passage which
shut the windows as made it difficult
stonepelting is on. (Para to even visit the
12/Pg.12072) toilets. (Para
9/Pg.12071)
Hariprasad 43 In order to escape the When he reached Off side
Maniram Joshi smoke, as soon as the the coach, it was Door near
PW86/EXH. smoke rose up, he took extremely Seat No.1
638 some air and crawled crowded. There Para 3
towards seat#1 to seat#3 were passengers Pg.11131
as there were large no. of in the coach
people near seat#72 and passage, gallery
the door got opened when near the doors,
he reached near the door space near the
and so he ran out of the toilet and near
door. (PW86 Hariprasad the seats inside
Maniram Joshi the coach and
[Passenger]/ EXH there were
638/Vol. 33/Para approximately
3/Pg.11131) he also more than 150
admits of having told the passengers. (PW
police on 12/06/2002 that 86 Hariprasad
the doors and windows of Maniram Joshi
the coach were closed. [Passenger]/
(Para7/Pg.11133) EXH.638/Vol.
33/Para1/
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Pg.11130)
Raju 45 Many people were able to S6 had 150200 He had
Kripashanker escape from the coach as passengers. (PW gone in the
Pandey someone opened the door 78 Raju gallery
PW78/EXH. in the offside of the Krupashankar between the
615 coach. (PW78 Raju Pande 2 toilets and
Krupashankar Pande [Passenger/] at that time
[Passenger]/ Exh. Exh.615/Para some
615 /Vol.32/Para 1/ Vol. passenger
2/Pg.11064 & 5) (PW 32/pg.11066). shouted
78/Exh.615/Para He also says that that there is
2/Vol.32/Pg.11066) the train must be smoke in
having 2000 the coach.
2500 karsewak At that time
over and above someone
the passengers. opened the
(para door
5/pg.11068) towards the
offside, he
came out,
then he saw
the coach
on fire from
the back
side. (Para
2/Pg.
11067)
Maheshbhai 47 When the train was Not stated.
Jayantilal Shah attacked by a mob having However,
PW87/EXH. stick, pipes etc, the he admits
641 windows came to be that, he
closed. (PW87 came down
Maheshbhai Jayantilal from the
Shah [Karsevak]/ EXH. coach from
641/ Vol.33/Para2/ off side of
Pg.11136) the coach.
Para 6, Pg.
11139
Rajendrasingh 51 S6 had more He escaped
Ramfersingh (reserve than 100 from a
Rajput d for 62, passengers. (PW broken
PW77/EXH. 63 & 64) 77 window and
614 Rajendrasingh thereafter,
Ramfersingh he along
[Passenger]/Ex with other
h.614/Para volunteers
11/Vol. took out his
32/pg.11062) father from
the window.
He had also
seen that,
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other
people were
also coming
out from the
window.
Para 3, Pg.
11060.
Mandakiniben 54 PW168 Mandakiniben PW168 Window
Nilkanth Nilkant Bhatia/Exh.867/ Mandakiniben para 3, Pg.
Bhatiya Vol.35/Para Nilkant Bhatia/ 11956
PW 7/Pg.11958 the doors Exh.867/Vol.
168/EXH.867 and windows came to be 35/ Para
closed after the stone 6/Pg.11957 -
pelting started when the the S6 coach
train stopped for the 2nd was packed and
time. it was not
possible to move
around as people
were sitting in
the coach
passage. It was
so much so that
when the stone
pelting started
near Acabin, she
could not even
manage to go to
her. (Para
8/Pg.11958)
Nilkanth 56 Due to commotion at the S6was jam Through a
Tulsidas Bhatiya station, passengers closed packed with window,
PW75/EXH. the windows and doors passengers (PW according to
610/Vol.32/Pg and it remained closed 75 Nikanth this witness
11042 to 11058 when the train stopped for Tulsidas Bhati after the fire
the 2nd time near Acabin. [injured]/ Exh. started,
(PW75 Nilkanth 610/Para13/ people
Tulsidas Bhatia Vol.32/pg. started to
[injured]/ Exh.610/ 11047) flee towards
Vol.32/Para3/Pg. the door.
11043 & Para9/Pg. (Para
11046) 4/Pg.11043
) he does
not see that
people
could not
escape from
one Godhra
side door on
the off side.
Rakeshbhai 56 When he was coming out He though
Kantilal Patel from the toilet near that even if
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PW85/Exh. Seat#72, they poured he remained
637 something from outside inside, he
and again put kakdaa would die
following which there was of
smoke inside and this suffocation
caused suffocation to and so he
people inside. At that time opened the
he told everyone to open offside
the windows on the off door of S6
side,. This did not reduce coach and
the suffocation and so he she came
told people to open the out from the
doors as well. He realised same.
that staying inside is going (Para
to kill every one, hence he 4/Pg.11120
suggested that the front )
door should also be
opened. (PW85
Karsevak/ EXH
637./Vol.32/Para4/
Pg.11119 to 11120)
Virpal Chhedilal 58, 59, There was so Door para
Pal 61 much of 12, Pg.
PW82/EXH. crowding that it 11096 and
627 was not possible Para 8 Pg.
to even reach the 11094. He
toilet. (PW82 also says
Virpaul that, the
Chedilal Pal door that he
[Passenger]/Ex had come
h. out from
627/Vol.32/Par was about
a11/Pg.11096) five to six
feet away
and that,
this door
was open.
Para 15,
Pg.11097.
Bachubhai 60 or 62 Because of stone pelting, The coach was Door near
Dhanjibhai the windows on both sides completely full. seat#7
Ladwa came to be closed the (PW94 (para
PW94/EXH. coach was completely full. Bachhubhai 9/Pg.11172
662 (PW94 Bachhubhai Dhanjibhai )
Dhanjibhai Ladva Ladva
[Karsevak]/EXH. [klarsevak]/EX
662/Vol.33/Para9/Pg. H.662/Vol.
11171 to 11173) 33/Para9/Pg.
11171 to
11173)
Subhash 69 There was extensive stone NE Door
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Chandra pelting and because which Para 2,
Ramchandr the windows came to be Pg.11305
Mishra closed. There was too
PW114/EXH. much smoke due to which
719 breathing was difficult.
Hence, he opened the
outside door and came out
carrying his sister and
mother. At the time that
he was near the toilet
side, he had heard
knocking from outside on
the sliding door. (PW114
Subhashchandra
Ramchandra Mishra
[Passenger]/EXH.719/
Vol.33/Para2/Pg.
11305)
Shantibhai 70
Manubhai Patel
PW88/EXH.
642
Shardaben 72 Door (Para
Manubhai Patel 2/Pg.11162
PW93/EXH. )
657
Veenaben S/6 (in The doors and windows Window
Mafatbhai Patel Cross she came to be closed to para 4,
PW83/EXH. admits protect the coach from Pg.11102
630 her stonepelting. (PW83
S.161 Veenaben Mafatbhai
version Patel [Passenger
dated Karsevak]/Exh. 630/
5/03/20 Para9/Vol.32/
02 that Pg.11104)
she was
in
General
Coach.
Rubidevi Passage The coach was From
Sriramohan near the extremely window.
Mali engine crowded, due to Para 2,
PW90/EXH. side which she was Pg.11152
650 Toilet not able to reach
Connected to the reserved
PW89/Exh.648 seats and she
had to sit in the
toilet passage.
(PW90
Rubidevi
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Shrirammohan
Mali
[passenger]
/EXH.650/Vol.
33/Para3/Pg.
11152)
Keshubhai Not The coach was
Devjibhai Patel stated full with the
PW91/EXH. karsewak and
651 passengers and
people were
sitting in the
passage along
with their
luggage due
which there used
to be difficulty in
even going to the
toilet. (PW91
Kesubhai
Devjibhai Patel
[Karsevak]/
EXH.657/Vol.
33/Para
5/Pg.11163)
Maheshkumar Window
Cheljibhai Para 2, Pg.
Chowdhary 11205
PW98/Exh.
670
Prakash Harilal Near the As there was suffocation, As S7 was NorthEast
Teli Dahod he and his family crowded, so side door
PW99/EXH. side members came out of the despite his Para 3,
674 toilet coach when someone reservation he Pg.11210
Connected with opened the door. (PW99 had come to S6
PW102/EXH. Prakash Harilal Tailli and sit near the
680 [Passenger]/EXH.674/ Dahodside toilet
Vo.33/Para3/Pg.11210) seat in S6 coach.
and both the doors also (PW99 Prakash
were closed. (Para Harilal Tailli
5/Pg.11211) and [Passenger]/EX
someone opened the off H.674/Vo.
side door as him and 33/Para3/Pg.
other people were feeling 11210 He also
suffocated and anxious says that the
and difficulty in breathing passengers were
(Para8/Pg.11212) and sitting on the
people started to push washbasin as
each other to get out as well as the door
soon as the door came to passage. (Para
be opened. (Para 5/Pg.11211)
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8/Pg.11212 to 11213) there were about
200250
passengers in S
6. (Para6/
Pg.11211)
Rampal Jigilal Near the As it was cold in the night, NE door of
Gupta Dahod so so the vestibule sliding the coach,
PW102/EXH. side door as well as both the Para 2,
680 toilet main doors came to be Pg.11225
Connected with closed. (PW102
PW99/EXH. Rampaul Jigilal Gupta
674 [Passenger
injured]/EXH. 680/
Vol.33/ Para1/Pg.
11224) and because of
the stone pelting the
passengers sitting inside
closed the windows.
(Para2/Pg.11225) and
people were able to come
out after it was getting
difficult to breathe as the
door on the offside came
to be opened. (para
2/Pg.11225 & Para
10/Pg.11229)
Somnath Near He and his family was From the N
Sitaram Kahar luggage able to get out after there E door Para
PW103/EXH. rack near was smoke in the coach 2, Pg.11232
681 the when someone opened
Dahod the offside door. (PW
side 103 Somnath Sitaram
toilet. Kahar [Passenger/EXH.
681/Vol.33/Para
2/Pg.11232 & Oara
9/Pg.11235)
Amrutbhai PW121 Amrutbhai Window
Joitaram Patel Joitaram Patel para 2,
PW121/EXH. [Karsevak]/EXH. Pg.11349
73 732/Vol.33 – There was
extensive stone pelting on
the train because of which
the windows and doors
came to be closed. (Para
2/Pg.11348 to 11349)
Rambhai NA PW123 Rambhai From the N
Bhudardas Patel Bhudardas Patel W Door
PW123/EXH. [karsevak]/EXH. Para 2,
734 734/Vol.33 the Pg.11359
windows and doors came
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to be closed at the time of
stonepelting. (Para
3/Pg.11359)
Jitendra NA Door Para
Mangalgiri 2, Pg.11380
Goswami
PW
125/EXH.739
Hirabhai NA PW160 Hirabhai Window
Umeddas Patel Umeddas Patel/Exh. Para 3, Pg.
PW160/EXH. 839/Vol.35 (Para 11843
839 3/Pg.11843 & Para8/
Pg.11846) – when the
mob started to pelt stones,
the doors and windows
came to be closed.
TABLEC : Learned counsel appearing for the defence has relied on
the following table of injured passengers in S/6 coach and the
medical history:
Sr. NAME OF SEAT MEDICAL HISTORY GIVEN IN THE M.L.C.
No. PASSENGER NO. RECORDS
1 Gonvindsinh 3 Laceration and abrasion injury on his fingers.
Ratansinh Panda (Exh.535/Vol.32/Pg.10936 dated
PW.202/Exh.1024 27/02/2002)
2 Gyanprakash 8 Superficial blackening of face and hands.
Lalanpurasad PW (Exh.569/Vol.32/Pg.10994 dated
80/EXH.621/Vol.32 27/02/2002)
3 Pravinkumar Amthalal 8 No injury inside the coach. (Exh.541/Vol.
Patel PW170/EXH. 32/Pg.10943 dated 27/02/2002)
873/Vol.35/Vol.35
4 Poonamkumar 24 Smoke inhalation and difficulty in breathing
Sunilkumar (Exh.557/Vol.32/Pg.10982 dated
Jannoprasad Tiwari 27/02/2002)
PW119/EXH.729
5 Babubhai Somdas 24 Burning sensation on face and hands and
Patel difficulty in breathing. (Exh.575/Vol.32/Pg.
PW122/EXH.733 11000 dated 27/02/2002)
Mild congestion, inhalation burns, difficulty in
breathing, chest pain and no external burns.
His face covered in ‘carbon soot’. (Exh.
494/Vol.32/Pg.10865 dated 27/03/2002)
6 Nitinbhai Chaturbhai 33 Difficulty in breathing. He also had blackening
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Patel of face. (Exh.564/Vol.32/Pg.10989 dated
PW120/EXH.731 27/02/2002)
7 Satishkumar Ravidatta 33,34, Superficial burns of the face, whole of right
Mishra 35 face, arm and upper arm, lower back region
PW96/EXH.666 and left hand totaling about 15% superficial
burns. (Exh.570/Vol.32/Pg.10995 dated
27/02/2002)
8 Savitaben 37 9% superficial burns of face, hands, both
Tribhuwandas Sadhu sides and both fore arm lower parts along with
Pw157/EXH.828 difficulty in breathing. (Exh.568/Vol.
32/Pg.10993 dated 27/02/2002)
1st to 2nd degree burns on the right upper leg
as well as 12% thermal and respiratory
burns and throat pain and eye burns. (Exh.
545/Vol.32/Pg.10952 dated 7/05/2002)
9 Jayantibhai Umeddas 40 Pain in the left side of the chest and smoke
Patel inhalation. (Exh.580/Vol.32/Pg.11005 dated
PW150/EXH.812 27/02/2002)
Complained of difficulty in breathing,
inhalation burns and pain in the chest. His face
was covered with black mesh. There was no
external burn. (Exh.488/Vol.31/Pg.10858
dated 27/03/2002)
10 Raju Kripashanker 45 C.L.W. injury on the right frontal region (due to
Pandey a hit by a a bluntobject on the right side of the
PW78/EXH.615 head) (Exh.579/Vo.32/Pg.11004 dated
27/02/2002)
11 Mandakiniben 54 Difficulty in breathing. Blackening of face.
Nilkanth Bhatiya (Exh.562/Vol.32/Pg.10987 dated
PW168/EXH.867 27/02/2002)
Complain of burning in the neck and chest
and inhalation burns and inhalation of fumes.
(Exh.508/Vol.32/Pg.10879 dated
10/04/20020)
12 Nilkanth Tulsidas 56 Total 6% superficial burns. The burn injuries
Bhatiya were on left thigh (middle part, left knee
PW75/EXH. joint, left leg below left knee joint, left thigh
610/Vol.32/Pg. (lower part), front side of knee joint. (Exh.
11042 to 11058 571/Vol.32/Pg.10996 dated 27/02/2002)
13 Prakash Harilal Teli Near Difficulty in breathing and inhalation of smoke.
PW99/EXH.674 the (Exh.589/Vo.32/Pg.11014 dated
Connected with PW Dahod 27/02/2002)
102/EXH.680 side
toilet
14 Rampal Jigilal Gupta Near Difficulty in breathing and inhalation of smoke.
PW102/EXH.680 the (Exh.585/Vol.32/Pg.11010 dated
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Connected with PW Dahod 27/02/2002)
99/EXH.764 side
toilet
15 Rakaran Sriram Gupta Near Difficulty in breathing and smoke inhalation.
the (Exh.576/Vol.32/Pg.11001 dated
Dahod 27/02/2002)
side
toilet
16 Ramnaresh Near Burning in eyes and pain and swelling in the
Ramnilgori the right foot. (Exh.582/Vol.32/Pg.11007 dated
Dahod 27/02/2002)
side
toilet
17 Shyam Bihar Sriram Near Difficulty in breathing and smoke inhalation.
Gupta the (Exh.586/vol.32/Pg.11011dated
Dahod 27/02/2002)
side
toilet
18 Rambhai Bhudardas NA Difficulty in breathing due to smoke inhalation.
Patel Laceration on the right knee due to hard and
PW123/EXH.734 blunt substances. (Exh.578/Vol.32/Pg.11003
dated 27/02/2002)
19 Hirabhai Umeddas NA Burning pain the eye. (Exh.577/Vol.32/Pg.
Patel 11002 dated 27/02/2002)
PW160/EXH.839
Complain of difficulty in breathing and cough.
Burning pain in the eyes and throat pain. Face
is covered in ‘carbon’ soot. (Exh.490/Vol.
32/Pg.10861 date 27/03/2002).
20 Amar Kumar 22 & 24 Difficulty in breathing, burning pain in the
Jamnaprasad Tiwari (reserve throat. (Exh.558/Vol.32/Pg.10983 dated
PW79/EXH.619 d in 17, 27/02/2002)
18, 19
& 21)
21 Ashish Sunilkumar Smoke inhalation injury and breathlessness.
Tiwari (Exh.559/Vol.32/Pg.10984 dated
27/02/2002
22 Dinesh Narinhdas Burn on face and hands and difficulty in
Patel breathing. (Exh.560/Vol.32/Pg.10985 dated
27/02/2002)
23 Amruthbhai Difficulty in breathing. (Exh.561/Vol.
Jainarayan 32/Pg.10986 dated 27/02/2002)
24 Vinobaben Mafatbhai Superficial burn on the face and difficulty in
Patel breathing. (Exh.563/Vol.32/Pg.10988 dated
27/02/2002)
25 Choudhary Pain in chest. (Exh.565/Vol.32/Pg.10990
Maheshkumar dated 27/02/2002
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Veljbhai
26 Ramanlal Makwana Difficulty in breathing and smoke inhalation.
(Exh.566/Vol.32/Pg.10991 dated
27/02/2002)
27 Dwarkadas 6% superficial to deep burn on face and
Shankarbhai Patel righthand and smoke inhalation injury. (Exh.
567/Vol.32/Pg.10992 dated 27/02/2002)
28 Lalanprasad Kishorilal Total 15% superficial burn, burn of head and
Chorasiya face and righthand and lefthand. (Exh.
572/Vol.32/Pg.10997 dated 27/02/2002)
29 Jankidevi lalanprasad Approximately 5% superficial burns and
smoke inhalation. (Exh.573/Vol.32/Pg.10998
dated 27/02/2002)
30 Ramdin Jigilal Gupta Difficulty in breathing. (Exh.581/Vol.
32/Pg.11006 dated 27/02/2002)
31 Arjun Jamnabhai Difficulty in breathing and smoke inhalation.
Pandey (Exh.583/Vol.32/Pg.11008 dated
27/02/2002)
32 Archanaben Satish Difficulty in breathing and smoke inhalation.
Mishra (Exh.584/Vol.32/Pg.11009 dated
27/02/2002)
33 Manglamben Satish Difficulty in breathing and smoke inhalation.
Mishra (Exh.587/Vol.32/Pg.11012 dated
27/02/2002)
34 Ram Hariya Gupta Difficulty in breathing and burning pain in
throat. (Exh.588/Zvol.32/Pg.11013 dated
27/02/2002)
35 Maheshbhai Jayantilal 47 Burn in the railway compartment and
Shah breathlessness and smoke related injury. (Exh.
PW87/EXH.641 552/Vol.32/Pg.10961 dated 27/02/2002)
36 Sanjaybhai Rasiklal Injury due to fall from train and tenderness on
Sukhadiya the ankle. (Exh.553/Vol.32/Pg.10962 dated
27/02/2002)
37 Ramfersinh Babusinh Burns in railway compartment, suffocation,
Thakor breathlessness and inhalation related injury.
(Exh.554/Vol.32/Pg.10963 dated
27/02/2002)
38 Rajendrasingh 51 Burns in railway compartment, suffocation,
Ramfersingh Rajput (Reserv breathlessness and inhalation related injury and
PW77/EXH.614 ed for tenderness on the right leg. (Exh.555/Vol.
62, 63 32/Pg.10964 dated 27/02/2002)
& 64)
39 L.K. JATAV CLW during accidental fall while getting out of
the train. (Exh.601/Vol.32/Pg.11025 dated
27/02/2002)
40 Bhupatbhai Maniram NA Pain on back (Exh.527/vol.32/Pg.10927
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Dave dated 28/02/2002)
PW110/Exh.
696/vol.33 (in S7 at
the time of the
incident)
41 Saburbhai Dhulabhai NA CLW while getting out of the train. (Exh.
Parmar 596/Vol.32/Pg.11022 dated 28/02/2002)
42 Kalpeshbai Jha, NA Blunt injuries on the right side of the chest.
PW124/EXH.738 (Exh.543/Vol.32/Pg.10947 dated 2/03/2002)
43 Dilipkumar Jayantilal 1 Anxiety and depression. He was under care
Patel from 28/02/2002 to 3/03/2002.
PW124/EXH.738 (Exh.514/Vol.32/Pg.10884 dated 4/03/2002)
44 Radheshyam Near 7 (illegible)
Ramshanker Mishra
PW113/EXH.715
45 Jitendra Mangalgiri NA Difficulty in breathing and respiratory burns.
Goswami (Exh.547/Vol.32/Pg.10954 dated
PW125/EXH.739 2/04/2002)
Learned counsel appearing for the defence has relied on the
following table of witnesses travelling in S/6 coach without any
M.L.C. Papers:
1 Pujaben Bahadursinh 4,5,6 N/A
Kushwaha
PW81/EXH.625
2 Hariprasad Munalal 11,13 In the evidence, he speaks of injury on both
Sharma hands x also injured due to stone pelting. (Para
PW97/EXH.668 2 / Page no.11196)
3 Premaben 2529 N/A
Ayodhyaprasad Mali
PW89/Exh648
Connected to PW
90/Exh.650
4 Vandaben Ramanbhai 33 N/A
Patel In the evidence before the Ld. Trial Court she
PW95/Exh.663 was suffering from suffocation. (Para 2/page
no.11177)
5 Hetalben Babubhai 35 N/A
Patel In the evidence before the Ld. Trial Court, she
PW84/Exh.634 was suffering from burning sensation in eyes
and ears and also from breathing problem
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6 Parshottambhai 35 N/A
Gowardhanbhai Patel In the evidence before the Ld. Trial Court he
PW107/EXH.690 received simple injury on legs and hands.
(Para2/pg.11154)
7 Gayatriben 4146 N/A
Harshadbhai Panchal Did not take any treatment
PW175/EXH.891
8 Hariprasad Maniram 43 N/A
Joshi
PW86/EXH.638
9 Rakeshbhai Kantilal 56 N/A
Patel In the evidence before the Ld. Trial Court he
Pw85/Exh.0637 received burn injury on right side eye. (Para
5/Pg.11120)
10 Virpal Chhedilal Pal 58,59,6 N/A
PW82/EXH.627 1
11 Bachubhai Dhanjibhai 60 or 62 N/A
Ladwa
Pw94/EXH.662
12 Subhash Chandra 69 N/A
Ramchandr Mishra In the evidence before the Ld. Trial Court, he
PW114/EXH.719 complained of suffocation. 9Para2/Page
No.11305)
13 Shantibhai 70 N/A
Shankarbhai Patel
PW88/EXH.642
14 Shardaben Manubhai 72 N/A
Patel In the evidence before the Ld. Trial court, she
Pw93/EXH.657 complains of injury on the forehand. (para
2/Pg.11164)
15 Veenaben Mafatbhai Not N/A
Patel specifie In the evidence before the Ld. Trial Court, she
PW83/EXH.630 d was treated for injuries on both hands (Para
4/Pg.11102)
16 Rubidevi Sriramohan Passage N/A
Mali near the In the evidence before the Ld. Trial Court she
PW90/EXH.650 engine was unconscious. (Para2/Page No.11152)
Connected to PW side
89/Exh.648 toilet
17 Keshubhai Devjibhai Not N/A
Patel stated In the evidence before the Ld. Trial court he has
PW91/EXH.651 complained of suffocation. (Para3/Pg.11157)
18 Maheshkumar Not N/A
Cheljibhai Chowdhary stated In the evidence before the Ld. Trial Court, she
PW98/Exh.670 has complained of suffocation and not being
able to speak. (Para3/Pg.11137)Page 300 of 988
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19 Somnath Sitaram Near N/A
Kahar luggage In the evidence before the Ld. Trial Court, he
PW103/EXH.681 rack complains of suffering from suffocation and he
near the has no knowledge of how he received injury.
Dahod (Para 2/Pg.11232)
side
toilet
20 Amrutbhai Joitaram Not N/A
Patel stated In the evidence before the Ld Trial court, he
PW121/EXH.73 suffers from suffocation. (Para2/Pg.11349)
NOTE:
1) Some of the passengers whose MLC records are available but were
not examined to which reference is made.
2) Those whose statements were recorded later in 2004 or 2005 and
those who have made improvements in what they saw have been
left out of consideration because their accounts are too removed
from the occurrence.
3) Apart from one, the majority speak of smoke and dense smoke
before they see flames.
4) The majority see flames/fire only after exiting the coach. It
appears that far from being very speedy, flames only erupted after
most had exited at the stage of smoke in spite of the large crowd
and only 2 available exits.
5) The burn injuries are 16 at the most. The seat distribution is
between compartment 5 to compartment 7.
6) The passengers who saw kakda/petrol/carboys/acidbulb are 9 in
number. Their seat distribution seems to be spread out without
any clear pattern. There is also a specific reference in PW119
about a burning rag being put out.
7) 3 passengers were themselves rendered unconscious but witnesses
refer to many passengers fall down and become unconscious.
8) Although a pattern may emerge from the manner and place of
escape, there is not enough material on where every one exited
from and their situation vis a vis others which would affect their
access to exits.
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To sum up, the smoke was seen before the flames. The majority
got out the train before it erupted into flames and smoke related
health problems clearly out weigh the burns and only 1 person is
found with burn on the lower limbs.
Had this mapping been done by the police or insisted upon by the
FSL as soon as possible after the event, there would have been
much greater understanding fire pattern.
The aspect of common object as emerging from the version of
the passengers:
[1] That the prosecution has examined total of 50 passengers
travelling in various coaches of the train including S2, S4, S5, S
6, S7 and S8 coaches.
[2] The 1st investigation officer (PW241) has stated that S6 coach
was full with about 250 passengers.
[3] Out of the 50 passengers examined as witnesses by the
prosecution from different coaches of the Sabarmati Express, a
total of 20 passengers do not mention any inflammable object of
anything that may aid inflammation in the nature of burning
kakda/rag, inflammable liquid/material or carboys etc being
thrown inside the coach.
[4] Out of the remaining 30 witnesses who give reference to the
throwing of inflammable object in the nature of burning
kakda/rag, inflammable liquid/material etc, only 17 have made a
contemporaneous reference to the same, i.e., have their police
statements recorded soon after the event. A total of 13 witnesses
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inflammable material) from the their earliest version given during
investigation and therefore it would be prudent to keep them out
of consideration.
[5] Out of the remaining 17 witnesses who give reference to the
throwing of inflammable object in the nature of burning
kakda/rag, inflammable liquid/material etc, a total of 4 witnesses
police statements were only recorded in the year 2005 and
therefore their entire testimony ought to be kept out of
consideration.
[6] Out of the remaining 13 witnesses who have given some reference
to the throwing of inflammable object in the nature of burning
kakda/rag, inflammable liquid/material etc, it is clear that 3
witnesses (PWs124, 81, & 8) were seated in the 1st compartment,
1 witness (PW119) was in the 3rd witnesses (PWs120, 84 & 150)
were in the 5th compartment, 1 witness (PW175) was in the 6th
compartment, 2 witnesses (PW168 & 75) were in the 7th
compartment, 1 witness (PW82) as in the 8th compartment. Only
PWs119, 82 and 85 speak of rags falling into their compartment.
[7] It is pertinent to note that not all the witnesses speak of their seat
numbers or the exact position where they were located and the
from which exact place these burning articles have been thrown
inside. Even those who do, are not specific that the burning
objects fell in their compartment. So it is possible that all the
people located in one compartment are speaking of one and the
same burning object.
[8] It is also possible that witnesses who do not specify where they
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saw a burning object fall are speaking of the same object which
perceived by others in various compartment. Other than S2 into
which a rag fell, passengers of no coach apart from S6 say that
any burning object fell into their coach. So it is entirely possible
that several witnesses, within the coach and other across the
coaches are speaking of the same burning objects that fell into S
6 coach.
[9] Also it is entirely possible that one person may have thrown more
than one burning object. So the number of persons
throwing/number of objects thrown may have been as few as or
less than 8 and at the very outward limit would have been
considerably less than 30. It is not beyond probability that the
same person who is holding the carboy may have also thrown the
rag.
[10] Even if the outer most limit of the total number of burning rags
which at any rate will be considerably less than 30 is considered,
this figure will still be much less than the total number of accused
persons against the 135 who chargesheets have been filed. This
number will be a mere fraction of the strength of the mob (900
1000) who are alleged to have gathered near acabin. However,
when overlapping witnesses excluded, then the number of
burning objects thrown inside the coach would be a minuscule
fraction and it is not beyond probability that such activities would
have remained unnoticed by the other persons alleged to have
been present.
[11] Even in respect of identification by the passengers, none of the
passengers have even stated at the earliest opportunity during the
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investigation that they can specifically identify anyone. Further, in
view of the catena of decision of the apex court, this type of
identification in the eye of law. The pattern and extent of
throwing of inflammable objects as perceived by passenger does
not reveal that incendiarism was at all the common object.
PART VD
Learned counsel appearing for the defence additionally submitted the
following two aspects viz. [1] Suppression of documents / best
evidence and nonexamination of important witnesses essential to
“unfolding of narrative” and [2] Improvements made by the
witnesses to suit the prosecution’s version during the trial:
[1] Suppression of documents / best evidence and non
examination of important witnesses essential to “unfolding of
narrative”
[a] Map of Scene of Offence The sight plan/ scene of offence
map was prepared on 3042004, by Shri Janak Popat (PW. 185/
Exh. 917/ Vol. 36) on the request made by the police. On that day
the investigating agency was aware of the facts and the places
relevant to the case. Despite the same the map does not show the
distance between the parcel office and periphery wall of railway
property (Para 4/ Pg. 12115/ Vol. 36), the map does not show the
length, breadth and height of “A Cabin” as well as other
topographical feature around “A Cabin”, the map does not show
the height of the railway track on the Garnala from the road level,
it does not show 78 tracks between “A Cabin” side and Bhamaiya
side, it does not show total electrical poles at the place of incident,
it does not show stairs leading from the road to railway track near
garnala, it does not show the place where the fire fighters wasPage 305 of 988
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alleged to be stopped, the route which the tempy had taken, the
place where it was finally parked, the place where it was found,
the place where PW. 170 & 202 were assaulted, the place where
Siddiq Buqqar was assaulted, the place where mother and
daughter were molested, the place from where the VHP witnesses
and tea vendor are alleged to have seen the incident, it does not
show Kalabhai petrol pump and the route from Kalabhai Petrol
Pump to Aman Guest House, the place from where some of the
carboys were seized from the scene of offence. All the aforesaid
places relevant to the case were not shown and were deliberately
suppressed in the map which has seriously prejudiced the defence
of the accused.
[b] The records on the basis of which the letter dated
22/07/2002 came to be prepared by Gangaram, Ahmedabad
Railway Yard showing the repairs which had taken place in S2 and
S7 coach are suppressed. The records are important evidence on
the basis of which the story of the prosecution of cutting of
vestibule could have been established. Non production of the same
has prejudiced the defence.
[c] Shri K.C. Bava, the investigating officer has admitted that
he got information in respect of a tempy lying near “garnala”
which was used by the accused for transportation of inflammable
material used in commission of offence, on 2442002. It is
admitted by Shri K.C. Bava that, he gave a “yadi” to his PSI Shri
Yadav dated 2442002, to seize the tempy. The said “yadi” is not
produced on record and it’s non production raises a doubt on the
case of prosecution.
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[d] Of the forwarding letter dated 24/01/2003 given by PW
244 to PW218 at the time of carrying out discovery proceedings
where PW218 admits that in the said letter complete details of
disclosures/confession made by Jabir before the Police was
incorporated. The said confession was recorded under a
videography. The said letter wrote by Shri Noel Parmal to PW.
218, the discovery officer of alleged looted gold chain and gold
ring is not on record. The said letter is important because if the
said letter contains all the details and on the basis of that some
discovery is made under Sec. 27 of the Indian Evidence Act, the
same would not amount to a disclosure as per Sec. 27. The
videography done while recording the confession of Jabir by
police is suppressed. The said videography was important to show
that under what circumstances the said confession was recorded.
This goes to decide the voluntariness of the accused Jabir, which
is suppressed from coming on record of the court.
[e] The fax messages addressed from investigation agency to
the FSL for calling them for inspection on various occasions, dated
2842002, 172002 and 1072002 has not been produced on
record.
[f] PW241/Exh.1366/Vol38/Para110/Pg. 13088 the 3rd
I.O. has stated that he had seized the concerned record of the
messages exchanged between Shri Satyanarayan Panchuram
Verma (Railway Guard) (PW135) & Harising Fulsing Meena
(Assistant Station Master) (PW126). These messages are very
important to know all the incidents of chain pulling, 2nd stoppage
of train, alleged intimidation to the driver by the accused,
damages caused in the train and other important and relevant
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facts. The said messages are not produced on record.
The record of message given on walkietalkie from the driver to
the Deputy S.S. by the guard as to the 2nd stoppage has also not
been produced as PW228 has himself admitted that important
messages like the threats to the driver and attack on the engine
given which are given on the walkietalkie are recorded in the
‘engine repair book’ which has not even been investigated till date.
(PW228/Exh.1189/Vol.37/Para3/Pg.12613) and (Para8/Pg.
12616)
[g] The records of Carriage and Wagon Department, Godhra,
which inspected and made repairs in various coaches of the train
were not produced on record.
[h] The records of Carriage and Wagon Department,
Ahmedabad, which inspected and made major repairs in S2 & S7
coaches of the train were not produced on record.
[i] Non examination of Shri V.D. Patel Sr. Section Engineer in
whose presence the panchnama of 1572002, of S2 and S7 coach
were drawn in Ahmedabad and non examination of Shri S.Y. Nitin
Rane (Sr. Section Engineer, Carriage and Wagon Department,
Ahmedabad) responsible for carrying out major repairs in sick
coaches. This non examination has resulted in truth not coming on
record in respect of the evidence of cut on the vestibule canvas of
S7 coach.
[j] The inspections of S6 coach, preparation of panchnama and
collection of Muddamal were videograph on 2722002 and 282
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2002 and also video recording was done in respect of inspection of
152002 are not produced on record.
[k] A Test Identification Parade of Shri Sikandar Shaikh (PW.
237) was carried out in the presence of Shri Ajay Kanu Bariya
(PW. 236) exonerating Sikandar. The said panchnama of Test
Identification Parade of April, 2004 was not produced on record.
[l] All the investigating officers have consistently stated before
the court that, they have not produced the case diaries and the
same is suppressed and not produced in the court.
[m] Exh. 998/ (P.B. Pg. No.12210 & 12211) is a letter relied
on by the investigation agency which gives the figure of vacuum
drop from 53 cm.sq./hg to 2530 cm.sq./hg” at the stage of chain
pulling. However, the investigation agency has failed to bring
anything on record to suggest as to how this particular figure was
arrived at and whether this figure is consistent with the version of
the prosecution witnesses who suggests that, the reading on the
vacuum meter in the guards coach had become zero.
[n] PW244/EXH.1406/VOL.39/PARA136/PG.13224 the
4th I.O. has stated that exact information about the late running
of any train is published on every railway station, but no
document in respect of the same is produced on record. However,
the person in charge of the same at Godhara Railway Station
which is the best evidence in this regard has not been examined
by the prosecution. The railway records of 2622002 to 272
2002 to showing the nature of information about the delay in the
scheduled arrival of Sabarmati Express train as available with the
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Godhra Railway Station.
[o] Police statement of Ajay Bariya dated 372002 has not been
brought on record.
[p] PW171/Exh.876/Vol.35 A RPF staff having his duty at
Godhara Railway Station. When he was on duty, PW173 sent a
message from GuardLobby to the RPF office that ‘Sabarmati
Express standing at Acabin is being stonepelted from Signalfalia
side by a mob and therefore send reinforcements’. (Paras 1 &
2/Pg.12017) however, from the entire investigation, there is no
effort to place the records of the Guardlobby and the RPF office
before the court. The investigation agency has not brought on
record the statement of Inspector RPF Shri George as well as had
failed to examine him in the trial.
[q] PW. 224 & 231 Ranjit Singh & Prabhat Singh of Kalabhai
Petrol Pump have stated that, they read the news of confession of
Jabir in the News Paper and therefore, they had approached the
police station for giving their statement. The said news paper
cutting is not placed on record.
[r] Non examination of Shri Asgar Ali owner of the Petrol
Pump who could have thrown light of the alleged sale of 140 Ltrs.
of loose petrol on 2622002.
[s] Non production of the documents of the sale from Kalabhai
Petrol Pump of the relevant day like stock register, Bill book,
Payment receipt register etc. The I.O. Shri K.C. Bava had admitted
that, he had examined the said documents and had directed his
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subordinate to seize the same. But the said documents which are
best evidence to decide whether there was any sale of 140 Ltrs. of
loose petrol on 2622002 has not come on record and is
suppressed from the court prejudicing the defence of the accused.
[t] Non examination of Mohansinh and Gopalsinh, the
employees of Kalabhai Petrol Pump who were admittedly at the
Petro Pump on duty on 2622002.
[u] Non examination of the original owner of the tempy Shri
Dawood and the present owner Shri Siddiq Vali and his nephew
Anas. This has resulted in the truth not coming on record in
respect of the use of tempy, possession of tempy from 2622002
to 1672002 (the day on which the tempy is shown to be seized)
and the same would be seriously prejudice the defence of the
accused.
[2] Improvements made by the witnesses to suit the prosecution’s
version during the trial
[a] The prosecution through a witness Pradipsinh Bholasinh
Thakor (PW. 156/ Exh. 826/ Vol. 34/ Pg. 11777 @ 11779/ Para
5, 9 and 11) has tried to offer belated explanation to the complete
silence in respect of the alleged attack on fire brigade engine by
offering letters exhibited for the first time in the trial by the fire
fighter though the occurrence book register (Exh. 827/ Pg. 11792)
does not state of any damage or attack on the fire engine on the
date of occurrence.
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The prosecution has deliberately improved it’s version in respect
of use of kerosene which was unanimously present till the filing of
the 1st charge sheet in the statements of the passengers as well as
in the documents showing recoveries from various places.
However, as soon as Jabir was inserted during the investigation,
the prosecution has blatantly made improvements in the evidence
of crucial witnesses like Ajay Bariya who have gone to the extent
of denying that, they had ever stated about kerosene before the
magistrate.
[c] Turning witnesses hostile: The prosecution has deliberately
turned all those witnesses like PW. 234 Anwar Kalandar, PW. 232
Iliyas Mullah, Panch Witnesses of Tempy and other witnesses
hostile who has the potential of destroying the prosecution’s case
at many levels if they would have stuck to their original
prosecution version. It is not the arguments of the defence that,
their original prosecution is any reliable. However, it is stated
that, this conduct of the prosecution prosecuting agency in
selectively turning witnesses hostile so as to present a particular
view of the investigation alone before the trial court rather than
dealing with those versions at the stage of investigation itself
suggests malafide and the guided manner in which the
investigation as well as the prosecution had proceeded.
[d] It is the consistent pattern in the prosecution that, witnesses
after witnesses have refused to look into their previous police
statements and investigation documents. Also the investigation
officers have refused to look in to their own case diaries.
For example PW231He has refused to have a look at his police
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statement or even read it though he is prepared to listen to it.
(Para41/Pg.12707).
[e] Shri Mangalbhai Ramjibhai Bariya (Driver of Eagle Mobile)
(PW142/Exh.790/Vol.34) has admitted that S.161 Cr.P.C. was
recorded 1st in C.R. No. 66/02 (Para3/Pg.11566) which was in
respect of all the work that he had done on 27/02/2002 however
he is refusing to identify his deposition about the same in the
Court vide Exh.791/Vol.34/Pg.11569 to 11570 (Para3/Pg.
11566) this peculiar improvement shows the manner and interest
with which the prosecution has went about discharging its solemn
duty as on a previous occasion this question came to be answered
in a natural manner when Shri Jaswantsinh Gulabsinh Bariya
(Wireless Operator of Alpha Mobile and Gasman) (PW141/Exh.
787/Vol.34) has admitted that S.161 Cr.P.C. was recorded 1st in
C.R. No. 66/02, Godhara Town Police (Para4/Pg.11555) which
was in respect of all the work that he had done on 27/02/2002
and he had deposed in about the same in the Court vide Exh.
789/Vol.34/Pg.11562 to 11563 (Para5/Pg.11556).
Shri Rupsinh Chagansinh Bariya (Telephone Operator, Fire
Brigade) (PW133/Exh.766/Vol.33) is categorical that when
the firefighter returns back to the office then the same is noted in
the occurrenceregister and when it goes out again, the details are
also noted. (Para5/Pg.11460) however, he has shown great
reluctance to see the entries of the Occurrencebook and after
denying in the cross that he had not seen the entries of
27/02/2002, he has specifically said that he says that he is not
willing to even see or read the entry of 1930hrs of 27/02/2002
(see Mark755/1).
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[f] In order to support the story of spot arrest, the prosecution
has sought to make improvements through other witnesses so as
to lend corroboration to this story. Shri Mohammad Imdad
Bismillah Ansari (PW216/EXH.1115/VOL.37/Para4/Pg.12429
& Para6/Pg.12430) In the cross he has admitted that he has
come up with a new story for the 1st time before the trial court
that he had seen 10 odd persons who were kept sounded up near
Acabin at about 1100hrs on 27/02/2002. This is part of the
deliberate attempt on part of the prosecution to seek for
corroboration of prosecution’s case one way or the other.
[g] It is significant to note that the improvement in the version
of all the VHP witnesses that their improvement in the version put
forth for the first time in the court that they had witnessed the
incident from behind (otth) the Acabin is not coincidental but is
well planned exercise undertaken and supervised by the
prosecution. In fact the original prosecution case as has been put
to 2 teavendors who were declared hostile in the court was that
they had witnessed the incident from behind (otth) the Acabin
where it is claimed that they had seen the policepersonnel
disperse the mob by firing upon them. (SEE Shri Rameshbhai
Raisinhbhai Solanki (Hawker) (PW215/EXH.1108/VOL.
37/Para4/Pg.12415 & Shri Arvindbhai Raisinhbhai Solanki
(Hawker) (PW221/EXH.1131/VOL.37/Para5/Pg.12471)
hence the original case of the prosecution which was subject to a
further investigation by the SIT did not deem it fit to review this
finding and hence only with a view to achieve consistency in the
versions of VHP witnesses came to be examined before them and
then these 2 witnesses have been conveniently declared as hostile.
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This conduct of the prosecution is required to be viewed with the
seriousness that it deserves.
[h] There is deliberated attempt made by the prosecution to
seek corroboration in respect of the presence of the Godhara VHP
witnesses on the platform vide the testimony of the passengers of
the Sabramati express
i] PW118/EXH.727/Vol.33 (Para2/Pg.11327) and (Para
13/Pg.11333)
ii] PW124/EXH.738/Vol.33 (Para25/Pg.11376) and
(Para15/Pg.11372)
iii] PW126/EXH.742/Vol.33/Para8/Pg.11388
iv] PW140/EXH.786/Vol.34 (Para3/Pg.11533) and (Para
8/Pg.11388)
v] PW144/Exh.793/Vol.34/Para12/Pg.11588
The said aspect in respect of VHP witnesses has been dealt with by
the trail court in detail and these witnesses are not believed.
[i] During the course of hearing several material improvements
in the versions of important prosecution witnesses were pointed
out which clearly establishes that, the efforts made by all the
witnesses by improving their earlier versions and supporting the
overall story of prosecution indicates that, the prosecution and
investigating agencies were driving the whole case towards
achieving conviction of the accused. Several improvements were
made in respect of quantity and number of carboys, the
identification of tempy, the size of carboys, the place from where
the carboys recovered, bringing implications of accused in the
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offence for the first time in the court and all aforesaid actions
clearly reveals that, a deliberate attempt was made by the
investigating agency and the prosecution so that, the truth may
not come on record and it becomes difficult for the court to
separate the truth from falsehood.
PART VE
LIST OF CITATIONS RELIED ON BY MS NITYA RAMKRISHNAN,
LEARNED COUNSEL FOR THE DEFENCE ARE AS UNDER:
Sr. Parties Citation Issue
No.
1 State v. Mukesh (2013)2 SCC 587 Sting Operation
2 Dayal Singh v. State (2012) 8 SCC 263 Appreciation of expert
of Uttaranchal Testimony
3 Sudevanand & Ors. (2012)3 SCC 387 Section 391 of Cr.P.C.
v. State through CBI
4 Roy Fernandes v. (2012)3 SCC 221 Section 149
State of Goa
5 Santosh Kumar (2010)9 SCC 747 Books not shown to the
Singh v. State expert
Through CBI
6 Smt. Selvi & Ors. v. (2010)7 SCC 263
State of Karnataka
7 Sidhartha Vashist (2010)6 SCC 1 Appreciation of expert
@Manu Sharma v. Testimony
State NCT of Delhi
8 Ramesh Chandra (2009)9 SCC 709 Appreciation of expert
Agrawal v. Regency Testimony
Hospital Ltd.
9 R.K.Anand v. (2009)8 SCC 106 Sting Operation
Registrar, Delhi
High Court
10 Kalyani Bhaskar v. (2007)2 SCC 258 Entering into Defence
M.S.Sampooran
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11 State of Madhya (2004)10 SCC 570 Books not shown to the
Pradesh v. Sanjay expert
Rai
12 Mohd. Khalid v. (2002)7 SCC 334 Coaccused confession
State of West and Sections 30 & 10
Bengal of Evidence Act.
13 State of Himachal (1999)7 SCC 280 Appreciation of expert
Pradesh v. Jai Testimony
14 State of UP v. Dan (1997)3 SCC 747 Section 149
Singh
15 Mahmood v. State (1976) 1 SCC 542 Appreciation of expert
of Uttar Pradesh Testimony
16 Santosh v. State of (1975)3 SCC 727 Section 149
Madhya Pradesh
17 Devi Lal & Anr. v. (1971)3 SCC 471 Changing prosecution
State of Rajasthan story
18 Ugar Ahir v. State of AIR 1965 SC 277 Changing prosecution
Bihar story
19 Haricharan Kurmi v. AIR 1964 SC 1184 Coaccused confession
State of Bihar and Sections 30 & 10
of Evidence Act.
20 Suleman Usman AIR 1960 Guj. 120 Appreciation of expert
Memon v. The State testimony.
of Gujarat
21 Bhagwan Das v. AIR 1957 SC 589 Books not shown to the
State of Rajasthan expert
22 Chikkarange Gowda AIR 1956 SC 731 Section 149
v. State of Mysore
23
PART VI
Submissions of Mr. M.H.M. Shaikh and Mr. Khalid G. Shaikh,
advocates on behalf of the appellant Nos.1, 2 and 3 in Criminal Misc.
Appeal No.629 of 2011, are as under
1 That the appellant Nos.1, 2 and 3 are original accused
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Nos.29, 49 and 50 in Sessions Case No.69 of 2009 tried by the learned
Sessions Judge.
2 That the appellant Nos.1, 2 and 3 are convicted by way of a
common final judgment dated 22.02.2011 and all are awarded life
imprisonment.
3 Appellant No.1 Suleman Ahmed Pir was arrested on
14.03.2002, Appellant No.2 Kasim A. Sattar Ghaji was arrested on
23.03.2002 and appellant No.3 Irfan Siraj Pada was arrested on
23003.2002.
4 The allegation / roll of the appellant Nos.1, 2 and 3 as per
case of the prosecution is as under:
[a] Appellant No.1 Suleman Ahmed Pir was alleged to be in the
mob when incident took place.
[b] Appellant No.2 Kasim A. Sattar Ghaji was found in mob
pelting stones and encouraging the mob.
[c] Appellant No.3 Irfan Siraj Pada was found in mob with
sward, pelting stones, damaged the coach.
5 Evidence against the appellant No.1 Suleman Ahmed Pir is
based on the police statement of PW No.230 Shri Dilip Gehimal Chelanai
dated 03.03.2002 [Volume No.37 page 12724]6 It is submitted that the witness has a refreshment canteen at
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at the end of platform No.2 and behind the coach of guard he saw the
incident. The guard coach was at garnala which is 200 to 300 feet away
from A cabin. It is further submitted that witness claims that he
identified 9 accused from A cabin and they were 500 to 600 feet away in
the mob of 900 to 1000.
7 From the cross examination, it appears that no test
identification was held by the investigating officer and for the first time
identifies in the court. Further, during the examination in chief this
witness identifies appellant No. as “Shaka” and Shaka was accused in
Sessions Case No.72 of 2009 and he is acquitted by the trial court.
8 Evidence against the appellant No.2 Kasim A. Sattar Ghaji is
under the panchnama u/s. 27 of Evidence Act, Investigating Officer
discovered 5 liter carboy [muddamal article No.80] at the instance of
appellant No.2 Further, PW11 Narendra Lakhwani Exh.111 discovery
panch [Volume No.27 page 9883].
9 It is submitted that panch had not identified the accused /
appellant No.2 during his deposition. 5 liters carboy was sent to FSL
and the the report dated 26.04.2002 Exh.1177 shows that the presence
of kerosene was found. It is not the case of prosecution that the
kerosene was used in setting the train / coaches on fire.
10 Evidence against the appellant No.3 Irfan Siraj Pada is
under the panchnama u/s. 27 of the Evidence Act and Investigating
Officer discovered sword [muddamal article No.76] at the instance of
appellant No.3. PW25 Trilokchand Dulhanimal Exh.215 discovery
panch [volume 28 page 10028]. PW239 Amita Dipeshkumar Shukla
Exh.1322 [page No.1263] Lie Detection Test Report.
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11 It is submitted that PW25 turned hostile and he admits that
at least 5 to 6 times he was instructed by Railway Police as to the
contents of his deposition. It is further submitted that lie detection test
is a violation Article 20(3) of the Constitution of India and in support of
his submission reliance is placed on th decision in the case of Selvi &
Ors. v. State of Karnataka [2010(3) SCC (Cri.) 1 para 262] that the
compulsory administration of the impugned techniques violates the right
against self incrimination – violates Article 20(3) of the Constitution of
India. It is further submitted that none of the witness identified and no
evidence about inflecting any injury to any person. It is further
submitted that none of the witnesses deposed that appellant No.3 was
pelting stones.
12 It is further submitted that oral testimony of all concerned
eye witnesses like passengers, karsevaks, VHP workers, GRP personnel,
RPF personnel, fire brigade personnel, railway employees, police
personnel, investigating officer, etc.
13 That delay in recording of statements of important
witnesses like Ajay Kanu Baria, Sikandar Mohammad Shaikh, Ranjit
Jodha, Prabhatsinh and others who are available from day one [AIR
1979 SC 135]. Lacunas – defects in recording the confessional
statements under Section 164 of the Code, 1973 relating to accomplices.
Twofold contradictory evidence from FLS witnesses regarding setting the
coaches on fire in first charge sheet and after recording of statement of
Ajay Kanu Bria i.e. cutting of vestibules with knife and entering in S/6
coach with 20 liters carboys and pouring of near toilets inside in
overcrowded coach etc.
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14 Improbable theory of conspiracy and contradictions,
improvements, omissions, etc. by important witness during trial with a
view to support prosecution case.
15 Learned advocates for other accused who have appeared
and assisted learned Senior Counsels for defence have adopted
submissions.
PART VIIA
SUBMISSIONS OF MR J.M.PANCHAL LEARNED SPECIAL PUBLIC
PROSECUTOR AND SHRI N.N.PRAJAPATI, LEARNED PUBLIC
PROSECUTOR AND SHRI A.Y.KOGJE, LEARNED PUBLIC PROSECUTOR
AND SUPPORTED AND ADOPTED BY SHRI RS JAMUAR, LEARNED
PUBLIC PROSECUTOR FOR S.I.T.
1 Mr. J.M.Panchal, learned Special Pubic Prosecutor has taken
us through evidence of passengers, who were travelling in S/6 Coach of
Sabarmati Express. Out of total 50 passengers so examined, 10 injured
passengers had valid reservation and travelling in the coach, 21 injured
passengers though having tickets but without reservation of seats and 19
other passengers, who are victim of the crime, were examined.
2 Beginning with PW96 Exh.666 page 11183 to 11189 of
Volume33, Mr. Satishkumar Ravidatt Mishra, travelling with his family
and having reservation of seat numbers 33, 34 and 35. In his
examinationinchief he stated that fire started from the backside of the
bogie, smoke appeared thereafter. Earlier, statements of the above PW
were recorded on 28.02.2002, 06.03.2002 and 18.03.2002.
3 PW74 Exh.607 Page11026 of Volume33 Mr. Kalpesh
Ashok Jha, though does not mention anything about first chain pulling,
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narrates about alleged incident of violent mob of 1000 to 1500 persons
armed with lethal weapons shouting antinational and antiHindu
slogans to kill the passengers, damaging bogies of the train, etc.
However in paras 16 & 17 of crossexamination, the above PW states
that from the window it was possible to see what was happening outside
and nearby. While confronting with his earlier statement dated
06.03.2002 certain contradictions are proved about shouting of slogans
by violent mob, but according to learned Special Public Prosecutor, the
contradictions are not material and of such a grave nature which will go
to the root of the case and in substance what was stated earlier before
the police was adhered to and, therefore, it is natural. PW67 Exh.542
Page10994 Vol.32, Dr. Sanjay A. Rawal confirms the injury of the above
PW.
4 PW75, Exh.610 Page11042 Vol.32, Mr. Nilkanth Bhatia
states about 6 copassengers, who died in the incident, and the PW is
injured eye witness. In paras 4, 5 and 6 incident of crime is narrated and
in para 10 he states about smoke engulfing the coach followed by fire.
However, in para 14 minor contradictions are noticed. Injuries of the
above PW are corroborated by two doctors PW68 and PW70, who
treated him.
5 PW83 Exh.630 Page11101 Vol.32, Ms. Veenaben Patel in
para 4 confirmed injuries and death certificate of copassengers. It is to
be noted that no motive is attributed in cross to witnesses for false
implication of accused persons. In this case also, doctor PW70 has
confirmed the injuries.
6 PW87 Exh.641 Page11136 Vol.33, Maheshbhai
Jayantibhai Patel, injured eye witnesses and can be said to be a pair
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witnesses of Nilkanth Bhatia, treated by Exh.69 and same contradictions
appear on record in paras 9 and 19.
7 PW92 Exh.652 Page11160 Vol.33, Dineshbhai Narsibhai
Patel and his injury is confirmed by one Dr. Bhavin Shah. Likewise in
the very Volume i.e. 33, there are other witnesses viz. PW98 Exh.670
Page11204, Maheshbhai Cheljibhai Chaudary treated for injury by PW
70.
8 PW109 Exh.695 Page11264 Vol.33, Mukeshbhai
Ramanbhai Makwana travelling S/7 bogie and his injuries are confirmed
by PW70. Certain contradictions appeared on record in paras 19 and 20
of his testimonies.
9 PW110 Exh.696 Page11275 Vol.33, Bhupatbhai
Manirambhai Dave. Contradictions appears in para 17 and for injuries
he was treated by PW63, a private Doctor, Dr. Roop Agrawal.
10 PW117 Exh.726 Page11322, Gandaji Ramsiji Thakor
treated by Dr. Anilkumar K.Patel, CHC, Harij.
11 PW118 Exh.727 Page11327, Ashwinbhai Govindbhai
Patel, who also identified one of the accused – Irfan Pataliya. According
to this witness inflammable material was sprinkled and for injuries
received by him, he was treated by Dr. R.M.Agrawal, PW63.
12 PW120 Exh.731 Page11341, Nitinbhai Chaturbhai Patel,
who could not identify any accused, which shows that this witness is
genuine and his version is also natural. That contention of learned
counsel for defence that lapses on the part of the investigation and the
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same was carried out with vengeance and oblique motive is denied and
it is submitted that version of the above witness reveal that investigation
is fair, impartial and devoid of any malafide inasmuch as 13 accused for
which report under Section 169 of the Code of Criminal Procedure was
filed. In the case of above witnesses PW70 treated his injuries and
confirmed in the medical certificate about the injuries.
13 PW121 Exh.732 Page11438, Amritbhai Joitaram Patel was
also treated by Medical Officer PW70 for his injuries.
14 PW122 Exh.733 Page11352, Babubhai Somdas Patel
identified one of the accused and treated for his injuries by PW60 and
PW70 both the doctors at Sola Civil Hospital, Ahmedabad and Civil
Hospital, Godhra respectively.
15 PW123 Exh.734 Page11358, Rambhai Bhuderdas Patel
was also treated by PW60 and PW70 and no contradictions appears in
his statements.
16 PW124 Page11362 Dilipkumar Jayantibhai Patel identified
2 accused and some contradictions appear in paras 7 and 8 and at page
11367 it is stated about sprinkling of petrol / kerosene from carboy. In
his police statement it was stated that members of violent mob were
pelting stones, but not that they were setting the coach on fire. Again,
for injuries he was treated by Dr. Mukesh Patel PW61. Paras 15, 16 and
26 of the depositions to be considered in view of the fact that the above
PW is also Panch Witness of Inquest Panchnama.
17 In vol.34 PW150 Exh.812 Page11657 Jayanti Umedbhai
Patel, who identified 4 accused persons. Paras 6 and 7 of his deposition
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for narration of the incident and para 10 for contradiction to be taken
note of. For injuries he was treated by PW60 and PW70.
18 PW160 Exh.839 Page11842 Vol.35 Hirabhai Umeshdas
Patel identified 2 accused persons and was treated by PW60 and PW70.
The above PW is the brother of PW150.
19 PW168 Exh.867 Page11955 Mandakiniben Nilkanth
Bhatia, wife of PW75. She has identified 3 accused persons and her
first statement was recorded by investigating agency on 06.03.2002 and
her second statement after 3 years. Though some contradictions
appeared in para 12 that in her police statement of not stating that
inflammable material was poured from back / rear of the coach and it
was set on fire then smoke appeared. Paras 17, 18 and 22 also to be
taken note of.
20 PW170 Exh.873 Page11999 Pravinkumar Amthabhai,
whose chain was snatched and was recovered later on. He identified
one of the accused – Shaukat @Bhano Faruq Pataliya.
21 Exh.291 Page10166 Vol.28, Exh.294 Page10173 and
Exh.297 Page10179 are identification and discovery panchnamas. That
Jabir Behra accused No.2 from whom metal ingot was recovered as per
Exh.381 Page10362 para 29.
22 Another group of witnesses viz. passengers not physically
injured but also victims and injured as per definition of `injury’ defined
under Section 44 of the Indian Penal Code.
23 PW84 Exh.634 Page11108 Hetalben Babubhai Patel paras
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7 and 34.
24 PW85 Exh.637 Page1118 Rakeshbhai Kantibhai Patel, who
identified one of the accused Hasan Ahmed Charkha @Lalu. In para 33
following witnesses are referred viz. PW88 Exh.642 Page11143 Shanti
Shankar Patel; PW91 Exh.651 Page11156 Keshubhai Devjibhai Patel
paras 9 and 11 to be taken note of including contradictions and
reference is made to PM note of copassengers viz. Bhimji Exh.461,
Shardaben PW 93 Exh.657 mentions about other female passengers
accompanying her in the coach viz. Manjulaben Champaben and
Shantaben, who died and PM notes are available in Volume 31.
25 PW94 Exh.662 Page11167 Bachubhai Dhanjibhai Ladwani
referred to copassengers viz. Nitaben, Pratikshaben, Sadashiva and
Satish and PM notes are available on record. The above copassengers
are relatives of PW175 Gayatriben. Reference is also made to PW95
Exh.663 Page11176 Vandanaben Patel and PM notes of Manglaben and
Lalitaben are available on record.
26 PW107 Exh.690 Volume 33 Page 11253 Pursottambhai G.
Patel.
27 In Volume35 a detailed reference is made and importance
of testimonies of PW175 Exh.891 Page12607 of Gayatriben Harshabhai
Panchal, who lost her 4 family members. One of the notable features of
testimonies of this PW is that she got down from window as she noticed
heavy smoke in the compartment making it impossible to even notice
her parents and she jumped towards platform/onside and fell on metal
heap. That she had noticed a mob of 200250 persons armed with
weapons proceeding towards S/7 and S/8 coaches. Para20 is relevant.
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She was helped by one elderly person and Pujaben, a friend of her sister
Pratikshaben, who also jumped from window. That PM notes of 4
persons of the family of above PW are appearing on record at Exhs.403,
458, 524 and 525. She later on crossed over to offside by crossing
beneath the bogie relieving herself from members of unlawful assembly,
who tried to caught hold of her.
28 That in Volume38 page 13004 a map of Demonstration PM
carried out on 03.05.2002 reveal that such metal heap was 14 feet away
on Southern side / on side / also see photographs taken on the day of
incident.
29 Thus, Mr. J.M.Panchal, learned Special Public Prosecutor,
relied on 31 injured passengers, 10 authorized travelers with tickets and
9 other passengers and unauthorized and without reservation travelling
in S/6 and S/7 in Sabarmati Train. Mr. Panchal, learned Additional
Public Prosecutor placed reliance on the following decisions:
[1] Mano Dutt vs. State of U.P. reported in (2012)4 SCC 79
[paras 30 & 31] for credibility of injured witnesses.
[2] Thoti Manohar vs. State of Andhra Pradesh reported in
(2012)7 SCC 723 [para 38] for submissions that minor
discrepancies not touching to the core of the matter are not
relevant and prosecution case cannot be discarded on the basis of
such discrepancies, inconsistencies, contradictions, etc.[3] State of Karnataka vs. Suvarnamma reported in (2015)1
SCC 323 [Para 12.4] which also referred to earlier decision of
Shivaji Bobde (1973)2 SCC 793 about reasonable doubt.
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[4] Vinod Kumar vs. State of Haryana reported in (2015)3 SCC
138 [para 24] about minor discrepancies to be ignored and also
against principles to be born in mind in a case under Sections 378
and 386 of the Code of Criminal Procedure Code – acquittal.
30 Brief submissions are made for 1st set of evidence and
passengers that;
[a] they are injured and victims; eye witnesses
[b] their presence is very natural and not to be doubted /
suspected;
[c] totality of the circumstances to be appreciated on the
premise that all the witnesses are independent with no enmity or
animosity and no motive to implicate innocent persons. No cross
appears contrary to the above.
[d] That evidence is given in a natural way and even minor
discrepancy, if any, is natural and to be appreciated accordingly.
That some of the witnesses could not identify the accused in the
court, show their natural behaviour / conduct.
[e] that injuries are corroborated by medical evidence and also
corroborated by circumstantial evidence;
[f] the reliance is placed on panchnama of coach S/6 and other
coaches, scene of offence, railway record and documents, Railway
Protection Force and Gujarat Railway Protection Force personnel,
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FSL reports, and other employees of Railway present at A cabin.
31 Thus, according to Mr. Panchal, learned Special Public
Prosecutor what is proved viz. incident took place at A Cabin; train was
attacked nearby A cabin; many passengers were assaulted; heavy pelting
of stones damaging bogies of the train, causing injuries to the passengers
and also resulting into breaking of windows; active participations of
members of violent mob / unlawful assembly armed with lethal weapons
and attacking the train and passengers throwing or pouring inflammable
materials / liquids, the coach was set on fire, etc. Therefore, there is no
possibility of any shortcircuit, smouldering of accident or mishap. Even
cause of fire is proved by direct evidence of injured and other witnesses.
32 About Section 120B and 149 of the IPC, behaviour and
conduct of crowd with wild utterances and shouting antinational and
antiHindu slogans and to kill passengers would manifest their intention
and object of unlawful assembly to be inferred from the acts committed
at the time of incident. Cause of chain pulling twice, within a few
moments of train leaving platform towards Vadodara and thereafter at A
Cabin was surrounded by Muslim community and selection of time and
isolated place, where no police assistance was available, cumulatively
resulted into in execution of conspiracy.
PART VIIB
IInd set of evidence of public servant viz. Gujarat Railway Police
Force
1 Gujarat Railway Police Force made all attempts to disburse
the crowd by warning, lathi charge, bursting teargas, etc. but the violent
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mob was reluctant and started disbursing only after resorting to firing.
All these things clearly show the intention, object and determination of
unlawful assembly to commit crime.
2 Following public servants, who are working for Gujarat
Railway Police Force reveal true and correct happening of the incident,
which remained almost without any major contradictions.
SUBMISSIONS
From the depositions of the above PWs viz. Gujarat Railway Police
Force personnel, it is clear that; [a] all these witnesses are public
servants; [b] they were discharging their duties; [c] they had no
animosity or grudge towards accused and they are independent; [d] no
reason to falsely implicate by creating any false version or supporting
prosecution; and [e] even presumption can be drawn under Section 114
of the Evidence Act.
On the basis of their evidence it is proved that the incident took
place at A cabin towards Vadodara side.
Presence of violent mob with lethal weapons, heavy pelting of
stones and usage of such weapons in damaging public property viz.
passenger train, causing injuries and in spite of warning the violent mob
had not disbursed until firing was resorted.
They were shouting antinational and antiHindu slogans and to
kill the passengers travelling in the train. Since their evidence
corroborate with passengers viz. injured and other eye witnesses, that is
the first set of evidence referred herein above and in absence of any
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major contradictions, when accused were apprehended at the scene of
offence cordoned off and arrested and later on presented before the
learned Magistrate, reveal no doubt about offences committed by the
accused of subject appeals.
3 Volume34
The Gujarat Railway Police Force personnel PW140 Exh.786
Page11532, Pujabhai Bavjibhai Patwadia paras 3 and 4 deposes about
incident in question.
PW144 Exh.793 Page11581 Mansinh Nurjibhai Vasava paras 2
and 13 are important. He also identified Bilal Badam Sulemanahmedpir.
PW146 Exh.799 Page11605 Laxmansinh Nansinh Chauhan,
para3 about the incident. He identified 7 accused persons; [1] Kasim
Abdul Sattar @ Kasim Biryani GajiGhanchi, [2] Shaukat @ Bhano Faruq
Pataliya, [3] Mohamad Badam, [4] Idrish, [5] Anwar Husain Pittal, [6]
Irfan Siraj Pado, [7] Jabir Binyamin Behra.
PW148 Exh.802 Page11625 [para3] Hemendra Ramanlal Das.
He identified 5 accused persons viz. [1] Idrish Umerji, [2] Ibrahim Abdul
Razak, [3] Irfan Siraj Pado, [4] Abdulrazaq Ismailwala, and [5]
Mohmmad Ansari Kutbuddin Ansari.
4 Volume35
PW161, Exh.841, Page11849 Indrasinh Prabhatsinh Solanki. He
caught the assailants on the spot and identified 7 persons in para 20.
Contradictions appear on record.
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PW163 Exh.852 Page11887, Chatrasinh Gambhirbhai. He
identified accused Siddik Ibrahim Bakkar. In paras 8 and 15 certain
contradictions appeared.
PW166 Exh.859 Page11918, Dalabhai Abhabhai Baria. He
identified 13 accused persons at page 11919 and 11920.
PW199 Exh.986 Page12194 Prabhatbhai Punabhai Bhoi has
identified 6 persons
at page 12194.
PW230 Exh.1196 Page12634 Mohabbatsinh Juvansinh Zhala,
PSI.
PW152 Exh.819 Page11721 Volume34 Mahendrasinh Bhikusinh
Mahida and PW158 Exh.832 Page 11806 Heerabhai Dola.
PART VIIC
IIIrd Set of Godhra Police Personnel
1 PW137 Exh.782 page11495 Volume34 Kantibhai Rupsinh
Damor, Driver of Baker Mobile van whose first statement was recorded
before police on 09.03.2002 in para 2 referred to mob belonging to
Muslim community proceedings towards A Cabin with weapons, where
one Kalota, accused was seen and he was later on identified. Tear gas
shells were burst and mob started disbursing. Minor contradictions
appeared in para 11 and that another mobile van `eagle’ of police
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reached nearby scene of offence prior in time.
2 PW139 Exh.785 Page11514 Jaswantsinh Kalubhai Baria,
Armed Police Constable in para 2 narrates the incident, of course after
the coach was set on fire and one of the members of mobile van of police
reached.
3 PW141 Exh.787 Page 11554 Jaswant Gulabsinh Baria,
Wireless OperatorcumGasman, who had seen two accused viz.
Mohmad Husen Abdul Rahim Kalota
and Bilal Haji were later on identified.
4 PW142 Exh.790 Page11564 Mangalbhai Ramji Baria,
Driver of mobile van identified one of the accused viz. Bilal Haji.
5 PW143 Exh.792 Page11571 Vinubhai Kasnabhai Vankar,
Driver of `Alpha’ mobile also narrated similar version that of earlier PWs
of this group and identified 5 accused. However, in para 7 he states that
he had not seen Rajubhai Bhargav, DSP at the scene of offence or
nearby.
6 PW147 Exh.801 Page 11617 Raijibhai Gulabsinh Parmar
PSI, Incharge of `Eagle’ mobile van who was picked up from his
residence by mobile and in paras 2 and 3 narration of the evidence and
para10 contradiction appears on record.
7 Volume35
PW169 Exh.868 Page11968 Babubhai Bhaljibhai Patel,
Assistant SubInspector of `Alpha’ mobile, who states that intimation viz.
Vardhi was received at 8:10 a.m. On 27.02.2002 and had seen one of
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the accused – Kalota and was identified. Statement of this accused was
initially recorded by police on 08.03.2002.
8 Volume35 PW177 Exh.897 Page 12085 Mansinh Hurjai
Parghi Wireless OperatorcumGasman, whose statement was recorded
on 09.03.2002 and identified two accused viz. Kalota and Bilal.
9 While summing up of evidence of above group of witnesses
Mr. J.M.Panchal, learned Special Public Prosecutor would submit that all
the above witnessed are Public Servants and discharging their public
duties, reached the nearby scene of offence after the coach was set on
fire and witnesses violent mob with weapons and mob was disbursed
after teargas shells were busted. This group of witnesses also narrated
as the earlier group of witnesses and identified accused in the court
which corroborate version / testimonies of 50 passengers, who were also
injured eye witnesses. All collectively established guilt of the accused,
however, testimonies of 50 injured passengers is sufficient on its own to
bring home the guilt of the accused.
PART VIID
FOURTH SET OF WITNESSES VIZ. RAILWAY PROTECTION FORCE
1 Volume35
PW173 Exh.885 Page 12050 Karan Lalsinh Yadav, Head
Constable in para 3 had seen violent mob attacking train and incident
taking place at A Cabin, whose initial statement was recorded on
01.03.2002 and read over on 08.03.2002. The above witness has
identified 7 accused.
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2 PW171 Exh.876 Page12017 Ambarishkumar Sairam
Sanke, para 2 contains narration of the incident and identified none.
The above witness resorted to firing along with other fellow RPF
employees viz. PW173 and PW164.
3 That evidence of these witnesses and summing up of
learned Special Public Prosecutor is on the line of earlier Panch
Witnesses, who are Government servants discharging their duties and
deposed about the common object and motive of violent mob that was to
set the train on fire and that of killing Karsevaks travelling therein since
they had refused to disburse in spite of warning and lathi charge
bursting of teargas shells and disbursed only when firing was resorted.
PART VIIE
FIFTH SET OF WITNESSES viz. Fire Brigade employees of Godhra
Volume33
PW129 Exh.755 Page11408 Kanubhai Chaganbhai Varia,
Fireman states about violent mob prevented and damaged fire fighter.
No contradiction, but states in paras 17 and 20 about tanker was refilled
nearby well belonging to one Dhantiya.
PW130 Exh.757 Page11425 Vijay Sharma – contradiction
appears in para 25.
PW137 Page 11458 Rupsinh Chaganbhai Baria.
PW156 Exh.826 Page11777 Volume34 Pradeep Thakore. Same
version. There are contradictions in para 20.
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PW165 Exh.855 Page 11903 Sureshgiri Gosai Volume35.
Identified two accused persons.
Volume27 Panchnama of damage of fire fighter Page9812 dated
07.03.2002 registration No.GRQ8041.
Summing up the above, it is submitted that the above witnesses
are Government servants. Attempts were made by accused persons and
mob to prevent fire fighter reaching at scene of offence reveal common
object and intention behind. That is exhibited and manifested to cause
maximum damage. One of the conspirator viz. Bilal was seen instigating
and guiding mob to commit the crime.
PART VIIF
SIXTH set of evidence
1 Vishva Hindu Parishad workers present at the platform No.1
at Godhra Railway Station to offer tea and snacks to Karsevaks travelling
in Sabarmati Express.
2 PW149 Exh.810 Page11644 Volume 34 Janak K. Dave
whose statement was recorded on the day of incident 27.02.2002 and
his presence is established. He narrates the incident and in para 14
contradictions appears at page 11652.
3 PW151 Exh.814 Page11665 Dipakbhai Nagindas Soni
whose statement was recorded on 02.03.2002 and in para 3 of
deposition he narrates the incident and later on identified two persons
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in the court. This witness is also a witness of recovery of ingots of gold
from the shop of a jeweler where accused – Shaukhat was present from
whom recovery was effected. In paras 19 and 28 there appears to be
contradictions. This witness has not seen any smoke or fire before he
reached at A Cabin via offside and thereafter crossing the track from
below bogies and reached at A Cabin toward onside.
4 PW154 Exh.823 Page 11743 Chandrashankar Nathuram
Somaiya whose statement was recorded on 02.03.2002, who narrates
about the incident in para 3. He identified one accused. Para 19
contradictions.
5 PW155 Exh.825 Page11757, Manoj Hiralal Advani whose
statement was recorded on 02.03.2002 and in paras 25 and 31
contradictions appeared, who also mentioned about metal heap near the
track. He further states about pelting of stones, causing damage to the
bogies of train and throwing inflammable material took place
simultaneously. According to Special Public Prosecutor some
inconsistencies may be there but the above witness remained unshaken
so far as main incident is concerned.
6 Volume35 PW159 Exh.834 Page11813 Rajesh Vithalbhai
Darji whose statement was recorded on 27.02.2002 i.e. the day of
incident and states that he reached at A cabin straight from platform
No.1. Likewise, other PWs 154 and 155 states the same. In para 31
major contradictions appeared Page11923. The above witnesses also
noticed one Mehboob Ahmed with knife.
7 Summing up the version of the above witnesses, learned
Public Prosecutor Mr. J.M.Panchal would submit that all of them went to
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offer tea and snacks to Kar Sevaks at Platform No.1 of Godhra Railway
Station and witnessed the incident and narrated without any major
contradictions. Version is corroborated by passengers PW174 viz.
Kalpesh PW75 viz. Nilkanth Bhatia PW110 Bhupat PW118 Ashish
Dave PW114, Dilip Patel and other Gujarat Railway Police personnel
viz. PW140 Punjabhai, PW146 Laxman Chauhan, PW148 Hemendra
Das. Like other witnesses they had seen the violent mob with lethal
weapons and criminal action of members of unlawful assembly was
visible from the place viz. structures / staircase of A Cabin behind which
all these witnesses had taken shelter / hiding behind staircase.
8 Volume37
PW233 Exh.1219 : Page 12724 Dilip Gaimal Chelani was
referred to by learned Special Public Prosecutor whose statement was
recorded on 03.03.2002 and later on 03.05.2002. The above witnesses is
the owner of Tea Stall situated at Platform No.2 at Godhra Railway
Station and in paras 3 and 4 he described the incident seen by him.
Further statement of the above witnesses dated 03.05.2002 was in the
context of giving full particulars of name of the accused stated in earlier
statement dated 03.03.2002. The testimonies of this witness is very
important inasmuch as both defence as well as the prosecution relied
upon this witness. In the police statement it was stated that he reached
A Cabin. Besides, this witness has deposed on the line of other PWs and
about crossing over platform No.2 to platform No.1 and thereafter
reaching the guard bogie and then reaching A Cabin as per the cross
examination, like route taken by police personnel from offside and then
reaching to A Cabin. With regard to some contradictions, it is stated that
the above witness support substratum of prosecution case.
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PART VIIG
About charge framed under Section 149 of the IPC, learned
Special Public Prosecutor relied on the following decisions:
1 Sunil Kumar vs. State of Rajasthan [2005 SCC [Cri.] 1230]
[paras 8 and 9] with regard to common object and `object’ means
purpose or design. That two parts of section 149 in the context of
awareness of facts and 5 criteria with explanation mentioned in Section
141 of IPC that earlier decision in the case of Nanakchand v. State of
Punjab reported in AIR 1955 SC 274 and in the case of Chikkarange
Gowda And Ors. vs State Of Mysore reported in AIR 1956 SC 731 were
relied upon along with case of Masalti vs. State of U.P. reported in AIR
1965 SC 202, it is submitted that common object and unlawful assembly
and continuing the membership of unlawful gathering can be seen /
gathered from the place, time, nature of slogans shouting, weapon used
and reluctance on the part of the mob to disburse in spite of lathicharge
and bursting teargas shells. The violent mob disbursed only after firing
was resorted to. For the offences under Section 149 of IPC, no proof of
overt act is necessary and mere presence of members of unlawful
assembly is sufficient. Other decisions on the line are as under:
[1] Sheo Prasad Bhor Alias Sri Prasad vs. State of Assam
reported in (2007)2 SCC (Cri.) 45
[2] Vishnu & Ors. vs. State of Rajasthan reported in (2009)10
SCC 477.
[3] Gurmail Singh vs. State of Punjab reported in (2013)4 SCC
228
[4] Om Prakash vs. State of Haryana reported in (2014)5 SCC
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[5] Anup Lal Yadav & Anr. vs. State of Bihar in Criminal
Appeal No. 775 of 20072 In the facts of this case, 15 persons were arrested on the
spot with regard to first major incident which took place around 8:00 to
8:15 am on 27.02.2002. No Test Identification Parade was undertaken
since accused were arrested from the scene of offence i.e. on the spot.
All the accused so arrested were produced before the Magistrate on the
next day [However such persons were shown to have been arrested
during night hours]. It is further submitted that on the very day, night
combing was carried out and persons were arrested and they were also
assailants and witnesses have stated so. The corroboration comes from
Gujarat Reserve Police employees Punjabhai Bavjibhai Patwadia and
Mansinh Nurjibhai Vasava PW144, Chatrasinh Gambhirbhai PW163.
As per the complaint lodged by driver of the train Rajendra
Yadav PW228 at 9.30 am, on 27.02.2002 certain facts are stated and
supported by Laxmansinh Nansinh Chauhan PW146 and Hemendra
Ramandas PW148. That all 23 witnesses confirmed immediate arrest of
assailants on the spot. Even second FIR No.10/2002 is filed about
assailants attacking train / police personnel and to get those
apprehended released.
3 In support of his arguments that in case of on the spot arrest
of the accused, no Test Identification parade is required unless requested
by accused. Reliance is placed in the case of The State of U.P. v. Rajju &
Ors. reported in AIR 1971 SC 708. With regard to value of
identification of accused, value and importance of identification of
accused first and before the court decision on Criminal Appeal No.47 of
2014 in the case of Pargan Singh vs. State of Punjab [Paras 9 and 15] of
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the Apex Court is relied, wherein, the Apex Court has considered the
whole aspect about memory and identification of accused by witness
after about 7½ years was held to be reliable. Reliance is also placed on
2000 SCC (Cri.LJ) 113 in the case of Ramanbhai Naranbhai Patel & Ors.
vs. State of Gujarat for identification in court is sufficient and not
holding Test Identification Parade would not be fatal for prosecution and
there is no dishonesty nor any malafide by prosecution. Again, reliance
is placed on the decision in the case of State of Himachal Pradesh vs. Lal
reported in (199)7 SCC 280 in support of importance of Test
Identification Parade.
4 About importance of case diary of investigation visavis
section 172 of Code, reliance is placed in the case of Malkiat Singh vs.
State of Punjab (1991)4 SCC 341 [para 11] and in the cases of
Shamshul Kanwar vs. State of U.P. 1995(4) SCC 430 [para10].
About damage to coaches
In support of submission that a violent mob armed with lethal
weapons determined by its common object to kill passengers by pelting
stones and damaging the train, reliance is placed on report of inspection
made by Railway Employees viz. Suleman Abdul Majid Shaikh PW132,
Exh764 Page 11452. That Coach No.93498 viz. S/6 coach was fully
burnt, southern side of vestibule of S/7 was burnt at page No.11457.
PW162 Exh845 page11867 Gangaram Jawanram Rathod at
Ahmedabad also exclusively referred to damage to coaches and the
above report is dated 27.02.2002 i.e. on the date of incident. He also
noticed burnt vestibule towards Vadodara side of S/7 coach. That
damage to other 8 to 10 coaches is also described, which corroborates
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evidence of passengers and other Railway employees and about common
object of members of unlawful assembly.
PART VIIH
Submissions and Evidence about Second Chain Pulling
1 Exh.745 record arrival time of Sabarmati Express at Godhra
Railway Station at 7:42 am that signal for departure for Vadodara was
given at 7:45 am. When 3 to 4 bogies left the platform, first chain
pulling took place around 7:47 am and after resetting it, train restarted
around 7:55 am. While the train was at A Cabin according to
prosecution second chain pulling took place. Even complaint lodged by
driver Rajendra Prasad Yadav at Page12624 also mentioned about
second chain pulling. That another document Exh.990 is about vardhi
book information is also an admitted document and information given
by Railway Police [GRP] at about 7:55 am stone pelting and causing
damage and fire to coach by violent mob. Even, Station Master
informed about the incident PW134 Exh.988 and Exh.990.
2 By relying on decision reported in the case of Akhtar vs.
State of Uttaranchal (2009)13 SCC 722, in the context of Section 294 of
Cr.P.C., it is submitted by learned Special Public Prosecutor that
genuineness of admitted documents can be read over as substantive
evidence to prove correctness of its content.
3 Volume34 PW136 Exh.780 Page11488 and 11489
Sajjanlal Raniwal TTE of the train stated in para 12 at Page11494 that
he had not verified any of the coaches to know as to why vacuum had
gone down to Zero level.
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4 Volume33 PW127 Exh.744 Page11391 Rajendra Prasad
Meena, Assistant Station Master at A Cabin at page 11392 mention
about mob of 300400 persons.
5 Volume33 PW126 Exh.742 Page11384 Harimohan
Foolsinh Meena, Assistant Station Master at his office with Deputy
Station Superintendent – Y.M. Saiyed referred to message by R.P.Meena
PW127 and in para 6 described about procedure and system of chain
pulling and further states that 3 coaches viz. WR5343, WR91263 and
WR90238 Exh.743 where chain pulling of the coaches had taken place.
6 Volume33 PW128 Exh.748 Page11391 para 2 mention
about timings of arrival of train departure, first chain pulling and second
departure. According to this witness in chain pulling, two short whistles
and one long whistle are blown. Though this PW has not inspected or
reset chain pulling as it was not part of his duty.
7 Volume34 PW135 Exh.777 Page11475 the above PW
mention about total 18 coaches containing S/1 to S/10 as reserved
coaches, 6 general coaches and 2 SLR meaning thereby second class +
luggage + Guard van. The above witness state about resetting of
mechanism of chain pulling on first occasion with Assistant Driver –
Mukesh Pachori.
8 Even PW127 – Rajendra Prasad Mishrilal Meena, Asst.
Station Master / PW228 Exh.1189 Rajendrarao R. Jadav, Driver of
the train referred to statement of 2 mechanics repairing / replacing
vacuum hose pipe, in para 6 of his deposition. At page11487
Exh.778 is an extract of guard book referred to vacuum and stone
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pelting and setting of the coach on fire. Original record of Exh.778
was called for. Further, Exh.1008 at Page12230 Volume36 is a
communication dated 19.09.2005 of Senior Superintendent Engineer,
Railway to Dy.S.P., Western Railway, about mechanism of chain pulling,
ICV and shaft.
9 Volume33 PW131 Exh.760 Page11442 Mukesh Pachori,
Assistant Train Driver in para 3 mention about timings of arrival, then
departure of train and first chain pulling, second departure and then
stoppage of train at A Cabin. The above witness state about various
causes of drainage of vacuum. With regard to specific question in para
17 he says about 2 causes of vacuum viz. one chain pulling and second
hose pipe detachment or damage.
10 PW132 Exh.764 Page11452 Suleman Abdul Majid Shaikh
mention about damage to railway coaches and there appears no
resetting after second chain pulling and train started moving around
10:00 am upon resupply of electricity by raising panto to overhead
electricity line [wiring].
11 Volume34 PW153 Exh.822 Page11373 Rajubhai Laljibhai
Rathod Pointsman of Railway was pair witnesses of Fatesinh Dabsinh
Solanki PW111 Exh.712 Page11287.
Submissions : Referring to chain pulling
Records of railway refers to chain pulling and that second chain
pulling is admitted by Driver and Assistant Driver of the train. Even
attempts were made to break or damage vacuum pipe. The driver of the
engine deposes before the court state about replacement of hose pipe.
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Though other mechanics at Godhra viz. Suleman and Gangaram at
Ahmedabad workshop do not mention about damage caused to hose
pipe, collectively and conjoint reading as above lead to only conclusion
of second chain pulling.
PART VIII
Conspiracy use of petrol and line of investigation
1 Reference is made to panchnama of scene of offence Exh.85
Page9785 Vol. 27, it was drawn between 13:00 to 15:00 hours on
27.02.2002 for about 2 hours and 21 articles were collected and seized.
Exh.86 is panchnama of S/6 coach drawn between 5:45 pm to 7:35 pm
on 28.02.2002 and collected 13 articles. This panchnama is Exh.86 Page
9790 collected 13 samples and numbered as Articles 22 to 34 from 9
compartments. Thus, total 34 samples were taken from the coach and
outside / nearby the coach from the scene of offence, meaning thereby
21 samples as per scene of offence panchnama and 13 samples were
from S/6 coach as per panchnama of S/6 coach and 2 other samples
were collected i.e. articles 35 and 36 at 03.03.2002 from `Mala garage’
viz. one black earth part of petrol and control earth part of petrol
Exh.371 page 10329. That all the samples were sent for FSL on
02.03.2002 and also received on the same day by the FSL. That other 2
articles 35 and 36 were forwarded on 04.03.2002 to FSL and they were
received on the same day.
2 FSL report dated 28.03.2002 Exh.1173 Page12576 based
on principles of scientific analysis reveal presence of hydrocarbons from
belongings and clothes of passengers window and other articles
corroborate with direct evidence of eye witnesses viz. passengers,
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railway employees and other witnesses including those whose
statements were recorded under Section 164 of the Code. Thus, usage of
huge quantity of inflammable material is the part of investigation for
which evidence already existed and required confirmation by FSL and it
was confirmed.
3 Visit to the place of incident by Mr. Dipakkumar P. Talati,
Asst. Director, FSL is not only visual examination but it is a scientific
examination to know and establish origin, intensity, pattern, nature, etc.
of the fire for which rough notes, sketches, diagrams were prepared and
it is also a part of investigation. Books on the subject of accident,
mishap or otherwise on fire authored by experts should not simply to be
pressed into service and relied on, unless they are shown to experts in
witness box during the course of trial and confronted with all such
writings and thereafter conclusions are to be drawn accordingly.
4 In support of the arguments, following decisions are relied
on by Mr. J.M.Panchal, learned Special Public Prosecutor:
[1] Bhagwan Das vs. State of Rajasthan [AIR 1957 SC 589]
[para 13][2] Piara Singh vs. State of Punjab [AIR 1977 SC 2274]
[para7] when there are two conflicting medical opinions, the
opinion of that expert which supports the direct evidence
must be accepted.
[3] State of Madhya Pradesh v. Sanjay Rai (2004)10 SCC 570]
[para 17] also on the line that opinion and books on the subject
have no evidentiary value unless put to expert / witness.
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[4] Santosh Kumar Singh vs. State through CBI (2010) 9 SCC
747
5 Mr. K.C.Bava, Investigating Officer, took samples of petrol
from Kala @Hakimiya Petrol Pump and second from Patel and Co. on
09.04.2002. That first sample is at Exh.130 Page 9897 Volume27 and
second is Exh.134 Page9903 Volume28. On 10.04.2002 one Rajnibhai
Jodhabhai PW224 Exh.1139 Page12488 and another Prabhatsinh
Gulabsinh PW231 Exh.1206 Page12684 in their statements dated
10.04.2002 before the police stated that no loose petrol was sold, but in
their testimonies it was clarified that on the day when the incident took
place no loose petrol was sold. On 17.04.2002 discovery under Section
27 of Evidence Act of petrol carboy was recovered from accused No.53
viz. Mohmmad Syed Abdul Salam Badam Shaikh [Exh.1372 Page13095
Volume38].
6 On 23rd and 24th April, 2002 one Kishorsinh Jawansinh
Sarvaiya, Fire Officer of Alang Ship Breaking Yard PW187 Exh.931
Page12129 Volume36] inspected S/6 coach and took 39 photographs
Exh.1813. The said Fire Officer is an experienced one, but having
education up to Standard 12. His inspection and deposition establish
usage of huge inflammable liquid, breaking of windows by applying
force with iron rods and other weapons and also throwing burning rags.
The above evidence which has come on record is not to be discarded or
brushed aside when cogent and reliable evidence is available to which
this PW and his report corroborate. Thus, in view of damage assessed by
Railway employees viz. Suleman at Godhra and Gangaram Rathod at
Ahmedabad and extent of damage to various coaches and extent of fire
etc ruled out possibility of smouldering. On 24.04.2002 Mr. K.C.Bava,
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Investigating Officer has given yadi to Mr. Yadav, PSI for further
investigation including that of a vehicle `tempi’ used for commission of
crime.
7 On 01.05.2002 Mr. Mahinder Dahia, Deputy Director of FSL
visited the coach and the rough notes, which are not in paper book, but
exhibited along with 18 photographs with negatives at Exh.1348 and
Exh.1828 to 1845 and negatives at Exh.1847 to 1863 are relied on.
8 On 17.05.2002 report was submitted Exh.1349 Page13002
Volume38 containing notes and photographs, which confirm about
origin, cause of fire, nature, magnitude, direction, pattern of fire, etc.
indicate usage of huge quantity of inflammable causing maximum
damage on Eastern side and area around seat No.72, which was
completely damaged and destroyed. Photographs 5, 6 and 7 show
demarcating line between heavily burnt area and less burnt area and
damage to flooring collectively reveal that maximum damage to Coach
S/6 was from compartments 6, 7, 8 and 9 and in passage area. Main
reports of Mr. Dahia is dated 02.09.2004 Volume38 Exh.1345 Page
12978. That the above officer was further asked to explain certain
phenomena pertaining to fire in S/6 by letter dated 07.11.2008
addressed by officer of SIT in which queries were raised and answered
by him.
9 Samples taken, examined initially and reports submitted by
Mr. Talati and Mr. Dahia, Deputy Director, FSL dated 02.09.2004,
conclusion drawn by them and later on queries answered again get
corroboration from 15 eye witnesses viz. passengers travelled, who
stated in the testimonies that fire started from backside viz. Dahod side,
rear of coach S/6.
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They are:
Raju Krupashankar Pandey [PW78], Gyanprasad Lallanprasad
Chorasiya [PW80], Veerpal C. Pal [PW82], Rakeshbhai Kantibhai [PW
85], Maheshbhai Jayantibhai Patel [PW87], Satishkumar Ravindra
Mishra [PW96], Dineshbhai Narsinhbhai [PW92], Bachubhai
Dhanjibhai Ladwani [PW94] Hariprasad Manilal [PW97], Parsotam
Gordhan [PW107], Punamkumari Sunikkumr Tiwari [PW119],
Babubhai Somdas Patel [PW122], Rambhai Bhudardas Patel [PW123],
Savitaben Tribhuvandas [PW157] and Mandakiniben Nilkanth Bhatia
[PW168].
That 2 other witnesses Shardaben and Hetalben PW95 and
Exh.85 and Radheshyam R.Mishra [PW113 Exh.715] also support fire
taking place in the coach from backside.
10 As per learned Special Public Prosecutor, pouring of huge
quantity of inflammable material viz. petrol is the main cause and fire
engulfed the coach S/6 pursuant to that, but certain events had also
taken place simultaneously viz. even from broken window of S/6 from
platform side, members of violent mob, who were assigned different
roles pursuant to conspiracy have thrown burnt rags, acid and petrol
bulbs, etc. Again corroboration is rendered to FSL report which confirms
about breaking of glass, aluminium windows and horizontal iron grill /
bar at the outer layer of coaches.
11 PW81 Exh.625 Page11084 Volume32 Pujaben B.
Kuswaha having seat Nos.4, 5 and 6 in S/6 coach stated about smoke as
mounting and she along with other family members escaped from
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vestibule of S/5 and S/6 on offside. Her statement before the police was
recorded on 11.07.2002.
12 PW118 Exh.727 Page11327 the above PW was initially
travelling in S/2 coach and after the train departed from Godhra he had
boarded in S/5, who saw persons throwing inflammable liquid in S/6.
His police statement was recorded on 06.03.2002.
13 PW107 Exh.690 Page11253 Volume33 Parsottam
Gordhan Patel. His first statement was dated 29.01.2005. He was sitting
in 5th compartment of S/6 stated about members of violent unlawful
assembly and throwing petrol into coach.
14 PW110 Exh.696 Page11275 Bhupatbhai Maniram Dave
whose statement was recorded on 06.03.2002. According to him he had
noticed violent mob from window of door of S/7 which was open.
15 PW86 Exh.638 Page11130 Volume33 Hariprasad
Maniram Joshi travelling seat No.33. In his statement of June, 2002 he
states in paras 7 and 9 that it is true that stone pelting and setting fire of
train was not seen by him as he along with his wife had gone on upper
berth and while escaping initially he moved towards seat No.72 on
eastern side, but noticing number of persons being there, came back
crawling through seat No.10.
16 PW124 Exh.738 Page11362 Dilipkumar J. Patel. His first
statement is recorded on 06.03.2002 and further statement is record on
22.01.2005 wherein in par2 he states about sitting nearby window and
witnessed other windows were broken and acid and petrol bulbs were
thrown inside the coach from carboys inflammable liquid was sprinkled.
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17 PW113 Exh.715 page11298 Radheyshyam Ramchandra
Mishra. His first statement is recorded on 16.02.2005 by police, who
mention about noise heard by him due to throwing of bottle and got
down from offside.
18 PW119 Exh.729 Page11336 Punamkumari Sunilkumar
Tiwari. Her first statement was recorded on 07.03.2002 and other two
statements were recorded on 23.07.2005. This witness was travelling
with her family on seat Nos.18 to 21.
19 PW114 Exh.749 Page11304 Subhashchandra Ramchandra
Mishra. His first statement was recorded on 08.05.2002 and further
statement was recorded on 18.02.2005. It is stated that a sack of grass /
hay was lit and placed on window and thus coach was set on fire and
smoke started emitting.
20 PW157 Exh.828 Page11801 Savitaben Tribhuvandas
having seat No.37. Her first statement was recorded on 06.03.2002 and
thereafter on 08.05.2002 and on 28.01.2005. She refers to throwing of
burning rags and petrol. According to her, first burning rag fell on her
shawl and she threw it away and thereafter second rag fell in the coach.
21 PW170 Exh.873 Page11999 Pravinkumar Ambalal Patel
whose first statement was recorded on 17.04.2002. This witness
suffered injury of fractured leg and no treatment was taken at Godhra,
but travelled to Ahmedabad and went to V.S.Hospital and due to
cumbersome procedure went to his native at Visnagar and took
treatment of a private Orthopedic Surgeon. Likewise, PW159 Exh.834
Exh.834 Page11813 Rajeshbhai Dhanjibhai. His first statement was
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recorded on 27.02.2002 and thereafter on 03.05.2002. Another PW167
Exh.862 Page11935 Harsukhlal Tejandas Adwani in para9
contradictions appeared on record.
22 Volume34 PW149 Exh.810 Page11645 Janakbhai
Kantibhai Dave. His first statement was recorded on 27.02.2002.
23 PW153 Exh.825 Page 11757 Manoj Advani, whose first
statement was recorded on 02.03.2002.
24 PW154 Exh.823 Page11744 Chandrashankar Nathuram
Soniya whose first statement was recorded on 02.03.2002.
25 PW208 Exh.1067 Page12366 Murlidhar Rochiram
Mulchandani whose first statement was recorded on 28.02.2002.
26 All the above witnesses in their testimonies deposed that
inflammable material / liquid was thrown / sprinkled from broken
windows and even some of the witnesses had seen throwing of burning
rags and the same corroborate with FSL report and samples collected,
analyzed from scene of offence panchnama and S/6 coach panchnama.
PART VIIJ
SLIDING DOOR
1 PW226 Exh.1158 Page12535 Satishchandra Ganpatram
Khandelwal, Officer of FSL Gandhinagar.
2 PW Exh.219 Page10035 Bhupatbhai Motibhai Chauhan, a
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panch witness of visit of above officer of FSL at Exh.220 Page 10046.
3 Volume28 PW145 Exh.794 Page11598 Jitendrakumar
Chimanlal Patel, a photographer accompanying FSL officer and the
photographs are at Exh.796 onwards.
4 That above PW226 visited S/6 coach at Godhra Railway
Station on 11.07.2002 and prepared rough notes at Exh.1160 and report
was submitted on 20.07.2002 Exh.1159 Page12544. According to the
report and submissions made by Mr. J.M.Panchal, learned Special Public
Prosecutor about sliding door that closing direction of the above sliding
door was from North [off] to South [on] and opening viceversa. That
scratch mark of 62 cms. appeared on the door and presence of carbon
was detected which reveal blackening on the scratch mark and it was
fresh and indicative of usage of force and stands corroborated by other
witnesses and they are in Volume33.
PW88 Exh.642 Page11143 Shantibhai Shankarbhai Patel.
PW93 Exh.657 Page 11161 Shardaben Patel.
PW99 Exh.674 Page11209 Prakash Hiralal Teli.
PW102 Exh.680 Page11224 Rampal Jigilal Gupta.
PW114 Exh.719 Pg11304 Subhashchandra Ramchandra Mishra.
Last three PWs are authorized travellers:
5 Three witnesses and their statements under Section 164 of
the Code:
[1] Ajay Kanubhai Bariya PW236 Exh.1231 Page12782
[2] Anwar Abdulla Ahemad Kalandar PW234 Exh.1220 PagePage 353 of 988
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12743
[3] Illiyas Mulla PW232 Exh.1214 Page12709That statements of all the above 3 witnesses were recorded under
Section 164 of the Code. Ajay Kanubhai Bariya supported the case of
the prosecution while other two did not and they were declared hostile.
6 In the context of submissions made about evidentiary value
of Section 164, reliance is placed on the decision of the Apex Court in
the case of Ram Kishan Singh vs. Harmit Kaur (1972)3 280, which was
later on relied on in the case of Baij Nath Sah vs. State of Bihar reported
in (2010)6 SCC 736 [paras 5 and 8] that it can be used to corroborate or
to contradict a witness, as required under Section 145 of the Evidence
Act. Though such statement is not admissible, but evidence on oath will
not be wiped out.
7 Testimonies of Ajay Kanubhai Bariya before the court is
indicative of the fact that it establishes conspiracy and about credibility
as a witness. It is submitted that he was a hawker at Railway Station,
Godhra and had no animosity towards anyone and on the contrary he
was employed by a Muslim owner of a refreshment stall at Railway
station. Even delay in recording statement or investigation of the case
can be scrutinized closely by the trial court and explanation for such
delay is to be considered and it is considered accordingly.
8 Since Ajay was familiar with railway system, knew about
camp of Railway Magistrate at Anand and approached him accordingly.
That no application was given to join Ajay as accused under Section 319
of the Code. That his evidence get support from Ranjitbhai Jodhabhai
PW.224, Prabhatsinh Gulabsinh PW231, Sikandar Mohmad Siddik
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Shaikh PW237 and Bhikabhai H. Baria PW206 and confessional
statement of accused Jabir, which can be used substantially against the
accused, but so far as coaccused are concerned, same can only be used
for corroboration and limited purpose, but conjoint and collective
reading of all these testimonies would establish viz. gathering and
meeting of minds by conspirators at Aman Guest House, purchase of
petrol, carrying it in a tempi containing 7 carboys of 20 liters each to
Aman Guest House, off loading and the loading on the next day i.e. on
27.02.2002 in the morning in the same tempi and took it to A Cabin via
Ali Masjid. Cutting vestibule of S/7 coach, forcibly bending sliding door
as reflected from scratch mark and position of stopper, allowing co
accused to enter into S/6 with carboys, opening door of South East door
of S/6 towards A Cabin side allowing other to enter and pouring huge
quantity of petrol and set S/6 on fire.
9 Reference is made to statement of accused Jabir, aged 20
years, Exh.1469 Page13335 Volume39 that he was arrested on
22.01.2003 and was given remand up to 30.01.2003, but was taken to
the Magistrate for recording statement under Section 164 on
29.01.2003, a day earlier before the period of remand was over. From
recording and reading of statement under Section 164, according to
Special Public Prosecutor, it is voluntary, truthful and all statutory
requirements under Section 164 were followed by the Chief Judicial
Magistrate, Godhra and in deposition Mr. Parmar, Chief Judicial
Magistrate, Godhra confirmed the same at page13331. However, the
above Magistrate referred to improper behaviour of Noel Parmar,
Investigating Officer on 29.01.2003. Later on, Jabir was produced on
04.02.2003 as per yadi dated 03.02.2003 and 24 hours reflection time
was given to rethink about statement to be given and thereafter on
05.02.2003 statement under Section 164 was recorded and ample time
to think over is given. In support of submissions, reliance is placed on
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the decision in the case of Madi Ganga Vs. State of Orissa [AIR 1981 SC
1165][para5] that statement under Section 164 recorded by Magistrate
to be presumed as genuine and in view of Section 80 of Evidence Act
Magistrate is not to be examined.
10 PW243 Exh.1393 Page13111 Mr. Suryakant B. Patel, PSI
attempted to explain circumstances of custody of Jabir on 29.01.2003
and 4th to 5th February, 2003.
11 Certain dates about statements of witnesses and confession
of accused recorded under Section 164 of the Code are as under:
[a] On 09.07.2002, Ajay Bariya, PW236 before Camp Anand
Railway Magistrate;
[b] On 26.07.2002 Anwar Abdulla Ahemad Kalandar , PW234
before camp Dakor Railway Magistrate;
[c] On 07.08.2002 Illiyas Mulla, PW232 before camp Dahod
Railway Magistrate.
[d] On 11.03.2003 Ranjit Jodhabhai Patel, PW224; and
[e] On 12.03.2003 Prabhatsinh Gulabsinh, 231 statements
were recorded by learned learned Chief Judicial Magistrate,
Godhra upon intervention of learned Additional Sessions Judge,
Godhra.
[f] On 22.09.2003 Sikandar [Fakir] PW237 before learned
Chief Judicial Magistrate, Godhra.
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[g] On 05.02.2003 Jabir, accused before learned Chief Judicial
Magistrate, Godhra.
12 It is submitted that conjoint reading of Ranjit Jodhabhai
Patel and Prabhatsinh Gulabsinh PW224 and PW231 under Section
164 and Jabir and accused would establish conspiracy. So far as cutting
of canvas vestibule of S/7 statements of Ajaybhai Kanubhai Bariya PW
236 and Sikandar PW237 under Section 164 at page 12782 and page
12845 and Jabir at Page 1339 and others viz. Govindsinh Ratansinh
Panda PW202, Pravinkumar Amtabhai PW170 corroborate the
incident.
PART VIIK
On the point of conspiracy following decisions are relied on
[1] Yash Pal Mittal v. State of Punjab AIR 1977 SC 2433
[paras 9 & 10]
[2] Major E.G. Barsay v. State of Bombay AIR 1961 SC 1762
[para78]
[3] Ajay Agarwal v. Union of India AIR 1993 SC 1637 [paras
9, 11, 12, 13, 16, 22, 24]
[4] Devender Pal Singh vs. State (NCT of Delhi) 2002(5) SCC
234
[5] Mohd. Khalid vs. State of Bengal 2002(7) SCC 334
[6] Mohd. Amin v. CBI (2008)15 SCC 49
[7] Mehbub Samsuddin Malek v. State of Gujarat 1996
SCC(Cri) 1353
[8] Chandra Prakash v. State of Rajasthan 2014 AIR SCW
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3055
On the point of solitary witness following decisions are relied
[1] Krishna Mochi vs. State of Bihar 2002 SCC [Cri.] 1220.
The above judgment is also relied on by Mr. R.S.Jamuar,
learned counsel appearing for SIT.
[2] Kunju Alias Balachandran vs. State of Tamilnadu (2008)1
SCC (Cri.) 331 which was based on decision of Vadivelu
Thevar v. State of Madras AIR 1957 SC 614.
[3] State of Rajasthan vs. Omprakash (2008)1 SCC (Cri.) 411
in which earlier decision in the case of Anil Phukan v. State
of Assam (1993)3 SCC 282.
[4] Ravi vs. State Represented by Inspector of Police (2009)3
SCC (Cri.) 736 para11.
[5] Gulam Sarbar vs. State of Bihar (now Jharkhand) (2014)3
SCC 401 para 19.
So far as the criminal appeal under section 391 of the Code is
concerned, reliance is pleased on decision reported in 2013 JT Vol.6 in
SLP [Cr.] No.2637 of 2013 decided on 03.05.2013, in which reliance is
placed on Tehsildar Singh v. State of Uttar Pradesh AIR 1959 SC 1012
for Section 145 of the Evidence Act. That sting operation is not an
admissible piece of evidence and it is not made before police or any
statutory authority of investigating agency, as required under section
161 nor it is under Section 164 before the Magistrate.
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Reference is made to Section 17 of the Evidence Act and Sections
145, 155 and 155(2) of Evidence Act with regard to definition to
admission, use of previous statement for the purpose of cross
examination and contradiction and impeaching credibility and character
of a witnesses. It is also submitted that once the order under Section
233(3) of the Code passed, the issue cannot be raised under Section 391
of the Code.
With regard to Section 164 of the Code, reliance is placed in the
following decisions:
[1] Ram Charan vs. The State of U.P AIR 1968 SC 1270. para8.
[2] Badri vs. State of Rajasthan (1976)1 SCC 442
[3] Ramprasad vs. State of Maharashtra (1999)5 SCC 30 and in
the context of solitary witness reliance is placed on the decision
in the case of Haricharan Kurmi vs. State of Bihar AIR 1964 SC
1184 that statement recorded under section 164 of the Code can
be used as a corroboration for other accused. But can safely be
relied against the accused if he has made such statement.
[4] State of Punjab vs. Harjadev Singh (2009)16 SCC 91 [para
13 including para 16].
Without preplan, a huge crime would not have been possible.
Reliance is placed on the decision in the case of State vs. Shankar
Sakharam Jadhav AIR 1957 Bom. 226 and in the case of Momin vs. The
State of Maharashtra AIR 1971 SC 885 para7 that direct evidence is not
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necessary.
The case of Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra AIR 1965 SC 682 para8.
The case of Mohd. Jamiludin Nasir vs. State of West Bengal
(2014)7 SCC 443
For sections, 147, 148 and 149 of IPC, Nanak Chand v. State of
Punjab AIR 1955 SC 274 is relied on.
Baladin And Ors. vs State Of Uttar Pradesh AIR 1956 SC 181
About defective investigation, Madan Singh v. State of Bihar
2004(4) SCC 622 para 10 and 12, which referred to earlier decision
reported in AIR 1956 SC 731 Chikkarange Gowda v. State of Mysore.
Dayal Singh and others Vs. State of Uttaranchal (2012)8 SCC 263
and Ganga Singh Vs. State of Madhya Pradesh (2013)7 SCC 278 [paras
24 & 25].
Rabindra Kumar Pal Alias Dara Singh vs. Republic of India
2011(2) SCC 490.
PART VIIL
Clarification and submission on behalf of prosecution about
identity of Mehbub Ahmed Yusuf Hasan @Latiko is as under:
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[A] It was contended on behalf of the Appellant No.8 of
Criminal Appeal No. 557 of 2011 (Org. Accused No. 1 of S.C. No.
84/2009) that P.W. No. 236, Exh: 1231, Ajay Kanubhai Bariya has
identify the wrong person accused Farook Ahmed Hasan instead
of Mehbub Ahmed Yusuf Hasan @ Latiko.
Clarification:
[1]
Part No. 38, Page 12782, P.W. 236, Exh: 1231, Ajay Kanubhai
Bariya at page : 12788, Para 7, at Sr. No. 7 this witness has
identified the Accused as “Mehboob Latiko”. While the name of
identified accused was asked by the Hon’ble Presiding Judge, he
has given his name as “Farook Ahmed Hasan (Page: 12789, Sr.
No. 7) (Accused No. 4 of S.C.No. 79/09)At that relevant time witness has drawn the kind attention of the
Hon’ble Presiding Judge about accused has tried to hide his
identity by giving false name.
(Whereas per Final Judgement “Sr. No. 16 of SchduledC”
Accused No. 4 of S.C.No. 79/09 is Faruq @ Haji Bhuriyo S/o
Abdul Sattar Ibrahim Gaji has been convicted for “Life
Imprisonment”
(Whereas per Final Judgement “Sr. No. 11 of schedule -A”
Accused No. 1 of S.C. No. 84/09 is Mehbub Ahmed Yusuf Hasan
@ Latiko has been convicted for “Death Sentence”)[2] Part No. 38, Page: 12845, P.W.No. 237, Exh: 1252,,
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Sikkandar Mohammad Siddiq Shaikh
At Page: 12848, Para : 7 at Sr. No. 7 this witness has identified the
accused as “Mehboob Latika. While the name of identified accused
was asked by the Hon’ble Presiding Judge, he has given his name
as “Farook Ahmed Hasan (Page: 12849, Sr. No. 7) . Again second
time this accused tried become smart by giving his false name. But
this Hon’ble Presiding Judge was vigilant and mark that this
accused try to become smart by giving his false name and to hide
his identity by giving false name before Hon’ble Court and
therefore, at Page: 12849 At Sr. No. 7 the Hon’ble Presiding Judge
has correctly noted as “Accused No. 1, S.C.No. 84/09 and his
correct name “Mehboob Ahmed Yusuf Hasan.”
[3] Discussion of Evidence against “Accused No.1, S.C.No.
84/09 “Mehboob Ahmed Yusuf Hasan”
Part No. Page: of Judgment :
Hon'ble Presiding Judge has discussed about evidence against
Convict:
Having gone through the record, it appears that the evidence
against this accused is as under:
P.W.No. Exh: Name
206 1060 Bhikha H. Bariya
236 1231 Ajay K. Bariya
237 1252 Sikaner M. Shaikh
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This accused has been identified before the Court by the above
mentioned P.W.No. 206, 236,237During the T.I.Parade (Exh: 360) also, he was identified by the
witness.
As discussed earlier, the presence of the above witnesses near the
place of incident and the facts of opportunity of witnessing and
identifying the accused are clearly established.
On careful reading, it appears that the evidence of these witnesses
is reliable and trustworthy and they have no reason to implicate
falsely this accused in this serious crime.”
Xerox copy of the relevant pages of Discussion of Evidence against
“Accused No.1, S.C.No. 84/09 “Mehbub Ahmed Yusuf Hasan” are
annex herewith as AnnexureA”
(Conduct of the convict by giving false name and tried to hide his
identity before the Hon’ble Presiding Judge)[B]
[I] Whether the Investigating Officer has obtain the Exh: 1469,
Confessional Statement of Convict Accused Jabir Binyamin Behra?
[II] If, Yes than on which date and from whom he has obtained
it?
Clarification:
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[1] Part 39, Page 13129, P.W.244, Exh: 1406, Noel Volar
Parmar, Investigating OfficerIn Cross at Pg. 13179, Para 73, Line 7 to 9 In Cross Examination
he has replied that:I have received the copy of the Confessional statement under
Section 164 of Jabir Binyamin Behra on very same day i.e. dt.
5.2.2003 during 5 to 6 hours from the Court on the basis of
application (Yadi) for it.”
Xerox copy Certified of the Document i.e. Exh: 1469, Confessional
Statement of Convict Accused Jabir Binyamin Behra Annexed
herewith as AnnexureB. Looking to the document, the said
document itself clarify that on dated on 5th February, 2003 an
application was given by Dy. S.P., Rly, Godhra the same was
allowed and on the very same date i.e. 5th February, 2003 the
certified copy of the Exh: 1469, Confessional Statement of Convict
Accused Jabir Binyamin Behra was given. (P.S. Rubber stamp of
C.C.)
( Whereas P.W. 246, Exh: 1467, Rajnikant Khodidas Parmar, Ld.
CJM, Panchmahal at Godhra has in his Cross Examination stated
that: It has not happened that on that day on the basis of an
application (Yadi) the copy of the statement was given to Mr. Noel
Parmar.”)
Hence it is clearcut evidence of P.W. 244, Exh: 1406, Noel
Volar Parmar Investigating Officer that he has obtained
certified copy of the Exh; 1469 from P.W. 246, Exh: 1467,
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Rajnikant Khodidas Parmar, Ld. CJM, Panchmahal at Godhra.
Date: 04/05/2015
PART VIIM
Reply by Mr. A.D.Shah, learned counsel for the defence to
clarification and submissions on behalf of prosecution regarding
Identification of accused No. 1 of Sessions Case No. 84 of 2009 by
PW. 236/Exh. 1231 Ajay Kanubhai Bariya and PW.237/Exh.1252
Sikandar Mohammad Siddiq Shaikh
Clarification No. 1
[1] It is submitted by the prosecution that witness Ajay Kanubhai
Bariya in his evidence on page 12788/Para7 identified the accused at
Sr. No. 7 as “Mehboob Latiko”. It is submitted by the prosecution that
when the Hon’ble Presiding Judge inquired about the name of person at
Sr. No. 7 identified by Ajay Kanubhai Baria, he gave his name as Farukh
Ahmed Hasan (as noted by learned judge in evidence on page 12789 Sr.
No. 7).
In respect to this part of the evidence, the clarification refers
to ” at that relevant time witness has drawn the kind attention
of the Hon’ble Presiding Judge about accused has tried to hid
his identify by giving false name.”
Reference to the evidence of Ajay Kanubhai Bariya on page
12789 there is no note made by the learned Presiding Judge on
the aspect of accused while disclosing his name his name as
“Farukh Ahmed Hasan”, was trying to hid his identity by giving
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false name or witness Ajay Kanubhai Bariya making any such
statement before the Hon’ble Court. Thus, the evidence on record
does not reflect the above aspect as mentioned herein above by
the prosecution in clarification.
[2] Similarly, while mentioning about evidence of PW.237/Exh
1252 Sikandar Mohammad Siddiq Shaikh in his evidence on page
12848/Para7 identifying the person at Sr. No. 7 as accused
Mehboob Latika. The learned Judge while noting this aspect about
identification on page 12849 Sr. No. 7 on inquiry, the accused
gave his name as “Farukh Ahmed Yusuf Hasan.”
It is submitted by he prosecution “Again second time this
accused tried become smart by giving his false name. But the
Hon’ble Presiding Judge was vigilant and marked that this
accused tried to become smart by giving his false name and to
hid his identity by giving false name before the Hon’ble Court.”
This interpretation or inference is not justifiable, more particularly
the learned judge has not made any noting about this aspect while
recording evidence. The inference which the prosecution wants to
try from recording of accused number against Sr. No. 7 in
evidence on page12789 and 12849 clearly reflect that even
Presiding Judge was not sure about the correct name of the
accused and identification.
During evidence of Ajay Kanubhai Bariya on page12789
after recording name as “Farukh Ahmed Hasan” at Sr. No. 7, the
learned judge mentioned “accused No. 4 of Sessions Case No. 79
of 2009. While recording the evidence of PW. 237/Exh. 1252
Sikandar Mohammad Siddiq Shaikh on page12849 at Sr. No. 7
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name as ‘Farukh Ahmed Yusuf Hasan.” The learned Judge noted
“accused No. 1 the Sessions Case No. 84 of 2009 (Mehboob
Ahmed Yusuf Hasan).
Reference No. 2
[3] Consideration of case against accused no. 1 of Sessions case
No. 84 of 2009Page15343Volume44 reveals that three witness,
(i) PW.206/Exh. 1060 Bhikhabhai H. Bariya
(ii) PW.236/Exh.1231 Ajay Kanubhai Bariya; and
(iii) PW.237/Exh.1252 Sikandar Mohammad Siddiqui
Shaikh,
identified this accused before the Court and at T.I.Parade. The
Learned Judge placed reliance on the statement recorded
under Section 164 of Cr.P.C. of P.W.232 Illiyas Mulla and PW
234 Anwar Kalandar where ” the name of this accused and
role played by him is clearly mentioned.” . Both these
witnesses have been treated hostile by the prosecution and
statement under Section 164 of Cr.P.C. being previous
statement case be used for the purpose of contradiction
and/or corroboration and it is not substantive piece of
evidence. Thus, both these witnesses having not supported the
prosecution case their substantive evidence before the Court is
rendered unreliable and statement under Section 164 Cr.P.C.
cannot be resorted to as substantive piece of evidence to
consider the identify and role played by him as mentioned in
those statements. The panchnama of T.I.Parade
(exh.360/P.10315) clearly reflect that only two witnesses,
namely, Ajay Kanubhai Bariya and Sikandar Mohammad Siddiq
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Shaikh had been taken for T.I.Parade on 20/02/2006. Thus,
the witness Bhikhabhai Harmanbhai identified accused for the
first time before the Court.
However, the learned Judge has not taken into consideration the
statement of accused recorded under Section 313 of Cr.P.C. on
page23402. The accused in answer to question No. 863 clearly
stated that his real name is Farukh Ahmed Hasan and submitted
further written statement dated 28/072010. His statement on
page23577 he has explained the circumstances in which he has
been involved and has produced School Leaving Certificate (Page
23578) letter dated 11/9/1981 for the admission of Farukh
Ahmed Yusuf Hasan S/o Ahmed Yusuf Hasan (Page23579),
Progress report of the year 19841985 and marriage registration
certificate ( Page 23581). Thus, it is case of the accused that he
has been wrongly arrested as Mehboob Ahmed Hasan or Mehboob
Latiko. The learned Judge has not considered these aspects
emerging from the statement on page 23577 and documents.
[4] Thus, emphasis by prosecution on “conduct of the convict
by giving false name and tried to hid his identity before the
Hon’ble Presiding Judge” in view of statement under Section 313
as well as document produced by the accused raises a serious
consideration about the aspect of false involvement by the
prosecution.
[5] The clarification note and submission, (i) whether the
Investigating Officer has obtained the Exh.1469, confessional
statement of convict accused Jabir Bin Yamin Behra?, (ii) If, yes
then on which date and from whom he has obtained it”. It is
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mentioned on this aspect by referring to the evidence of PW.
244/Exh. 1406 Noel Volar Parmar in respect of cross examination
on page13179 Para73. The evidence of this witness (Page
13138/Para18) witness clearly referred “took note of telephonic
information about recording of statement under Section 164 of
Cr.P.C. of accused Jabir Bin Yamin Behra by Chief Judicial
Magistrate and had informed on phone to S.P. (Western Railway)
Shri J.K. Bhatt and Shri Rakesh Asthana. Thus, the witness in his
examinationinchief nowhere referred to his receiving certified
copy of the confessional statement in view of Yadi written by him.
However, witness is crossexamination clearly stated that on
05/02/2003 between 5 to 6 p.m. he had obtained copy of
statement of accused Jabir Bin Yamin Behra recorded under
Section 164 on the basis of Yadi written by him and thereafter he
had discussion about the facts contained in the statement with his
Superior Officer . The witness did not produce certified copy of
the said statement purported to have been obtained on
05/02/2003. The witness further, in cross examination (para
131/Page 13220), clearly stated that he had read the statement of
accused Jabir recorded under Section 164 and he cannot say as to
whether the said statement of accused was verbatim the same to
his earlier video recorded statement of not.
The prosecution examined PW.246/Exh.1467 Rajnikant
Khodidas Parmar (P. 13307) Chief Judicial Magistrate who
deposed that the confessional statement was personally placed in
a cover and after sealing the same, the same was forwarded to
Sessions Court. (P. 13309). This witness in cross examination
clearly deposed (P.13313) “while recording statement no copy of
statement was prepared by putting carbon. The said statement
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was put in cover and the procedure of sealing the same was in my
presence immediately. While doing the process of putting the
statement in cover and sealing the same Shri Noel Parmar was not
present in the Court. Similarly, at that time PSI Shri S.B.Patel was
also not in the Court room. When this cover containing statement
was sealed till that, no Xerox copy was taken out. The cover after
sailing was sent to Sessions Court on that very day”. The witness
further stated that ” It has not happened that on the basis of Yadi
copy of statement was given to Noel Parmar o that day. It has also
not happened that he had given seal cover to Shri Noel Parmar.
Even after this cross examination and more particularly when it
was clearly emerging that no copy was given to Shri Noel Parmar,
the prosecution did not produce certified copy of confessional
statement which is now produced with written clarification
submitted on 04/05/2015.
Had this statement been produced during trial by Shri Noel
Parmar, then obviously the defence could have cross examined
Shri Noel Parmar, Shri S.B.Patel and Shri Chief Judicial Magistrate
R.K.Parmar on various aspects. The prosecution even did not seek
any clarification about supply of certified copy of statement
recorded under Section 164 of Cr.P.C. of accused Jabir Bin Yamin
Behra (Exh.1469) during the evidence of either Noel Volar Parmar
or Chief Judicial Magistrate Rajnikant Khodiadas Parmar. This
would clearly reflect about the collection of evidence by the I.O.
Thus, this evidence is sought to be introduced during hearing of
the appeal and thereby depriving the defence of material cross
examination of the witnesses on this aspect. Thus, these aspects
may also be taken into consideration while considering
“Clarification and submission” on behalf of the prosecution.
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PART VIIIA
1 Mr. J.M.Panchal, learned Special Public Prosecutor has
prayed to set aside the acquittal of the following accused persons in
Criminal Appeal No.743 of 2011 against acquittal:
[1] Yah Mohammad Safi Mohammad Chhakada, A18, Sessions
Case No.69 of 2009.
[2] Abdul Ashu Mistry, A17, Sessions Case No.69 of 2009.
[3] Rafiq Mohammad Jamnu, A21, Sessions Case No.69 of
2009.
[4] Ahmed Abdulrahim Hathibhai, A22, Sessions Case No.69
of 2009.
[5] Samsherkhan Sultan Khan Pathan, A23, Sessions Case
No.69 of 2009.
[6] Idris Abdullah Umarji Shaikh, A23, Sessions Case No.69 of
2009.
[7] Azgarali Kamruddin Ohraji, A26, Sessions Case No.69 of
2009.
[8] Kamal Badshah Mohmad Sharif Musalman, A27, Sessions
Case No.69 of 2009.
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[9] Taiyab Abdul Haq Khoda, A28, Sessions Case No.69 of
2009.
[10] Mohamad Mushrafkhan Ashrafkhan Pathan, A30, Sessions
Case No.69 of 2009.
[11] Habidbhai Karimbhai Shaikh, A31, Sessions Case No.69 of
2009.
[12] Mohammad Ibrahim Shaikh, A32, Sessions Case No.69 of
2009.
[13] Hussain Abdulsattar Durvesh, A33, Sessions Case No.69 of
2009.
[14] Shoukat Mohammad Shaikh @Dagal, A34, Sessions Case
No.69 of 2009.
[15] Ahmed Abdul Rahim Kala Shaikh, A35, Sessions Case
No.69 of 2009.
[16] Asfi @Babu Siddik Kadear, A36, Sessions Case No.69 of
2009.
[17] Abdul Rahim Ibrahim Kalu, A37, Sessions Case No.69 of
2009.
[18] Anwar Hussain Ahmed Pittal Shaikh.
[19] Mohammad Abdul Salam Giteli, A39, Sessions Case No.69
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of 2009.
[20] Salim Abdul Gaffar Shaikh, A41, Sessions Case No.69 of
2009.
[21] Mohammad Hussain Abdul Rahim Kalota, A42, Sessions
Case No.69 of 2009.
[22] Abdulgani Ahmed Sheikh, A43, Sessions Case No.69 of
2009.
[23] Zabir Abdullah Kala, A44, Sessions Case No.69 of 2009.
[24] Abdul Rauf Ahmed Yaymin, A45, Sessions Case No.69 of
2009.
[25] Abdul Razak Abdul Rahim Dhantiya Razak Dungariya,
Sessions Case No.69/2009[26] Abdulrazak Yakub Ismail Wala@Moto, A52, Sessions Case
No.69 of 2009.
[27] Mohd. Sayed Abdul Salam Badam, A53, Sessions Case
No.69 of 2009.
[28] Ishak Mohd. Ghanchi Mamdu, A54, Sessions Case No.69 of
2009.
[29] Shabbir @Bhupat no Bhrio Abdul Rahim Badam, A1,
Sessions Case No.70 of 2009.
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[30] Mohd. Hanif @Moto Chamro Abdulrahim Bhatuk, A71,
Sessions Case No.71 of 2009.
[31] Muzafar Usman Hayat, A6, Sessions Case No.71 of 2009.
[32] Idris Ibrahim Charkha @Saka, A1, Sessions Case No.72 of
2009.
[33] Idris Yusuf Ismail Mafat Idris Ravan, A2, Sessions Case
No.73 of 2009.
[34] Habib @Badshah Binyamin Bahera, A2, Sessions Case
No.75 of 2009.
[35] Rafik Ahmed Alam @New Muslim, A3, Sessions Case
No.75 of 2009.
[36] Roll @Ruhul Amin Hussein Hathila, A4, Sessions Case
No.75 of 2009.
[37] Yakub Abdul Sattar Shakla, A1, Sessions Case No.76 of
2009.
[38] Abdul Karim Haji Husen Badam, A2, Sessions Case No.76
of 2009.
[39] Usmangani Mohd. Ibrahim Coffeewala, A4, Sessions Case
No.78 of 2009.
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[40] Rafiq Mohd. S/o. Abdulmajjid Umar Kalander @Rafiq
Bhopo, A2, Sessions Case No.79 of 2009.
[41] Siddiq Abdulrahman Abdulsattar Bakkar, A1, Sessions Case
No.80 of 2009.
[42] Rais Hussain Ismail Mitha, A1, Sessions Case No.81 of
2009.
[43] Idris @Thus Abdulgani Abdulmajid Ranta, A1, Sessions
Case No.86 of 2009.
[44] Siddik Ibrahim Umar Hathila, A1, Sessions Case No.80 of
2009.
[45] Ibrahim Adam Dhantiya, A1, Sessions Case No.204 of
2009.
2 Mr. Vijay Patel, learned counsel, appearing appellants
victims and complainants against the order of acquittal passed by the
trial court also relied on same set of evidence as relied on by Mr.
J.M.Panchal, learned Special Public Prosecutor.
3 In all these appeals against acquittal 61 accused came to
be acquitted for which the state of Gujarat has preferred appeal
against acquittal of 45 accused under Section 378 of the Code, 1973
and criminal appeals filed by the Victim of incident.
4 At this stage, reliance is placed by learned Special Public
Prosecutor on the evidence of arrest of the accused with stick, iron rods,
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iron pipes and some of them were identified in Test Identification
Parade and also in their testimonies before the trial court. Eye witnesses
are PW199 Prabhatbhai, GRP constable; PW173 Karansinh Yadav, PRF
constable; PW152 Mahendrasinh Mahida, GRP constable; PW164
Shrimohan Yadav RPF constable, PW171 Ambishkumar Sanke, PRF
constable, who are almost common in naming accused A18, A17, A21,
A22, A23, A24, A27, A28 of Sessions Case No.69 of 2009. A32, A
31, were named by PW151 Dipakkumar N. Soni, local resident and A
31 was identified by PW175 Gayatri Panchal, an injured passenger.
That PW151 Dipakkumar N. Soni also named and identified A32 and
A33 of Sessions Case No.69 of 2009. A34 was again identified by local
resident PW159 Rajesh Darji. A35 was identified by PW208
Murlidhar Mulchand, local resident. A36 and A37 again were
identified by local resident PW154 Chandrashankar Sheniya; PW172
Nitinkumar H. Pathak; PW139 Jashvant Baria GTP constable, PW173
Karansinh Yadav, RPF constable.
A39, A41 and A42 were seen in the mob and identified by
PW155 Manoj Hiralal Advani, local resident; PW208 Murlidhar
Mulchandani, local resident and other panchas of GTP constables.
Likewise, PW167 Harsukh Advani, local resident, named and identified
A43, A44 and A45. A47 is identified by PW208 Murlidhar
Mulchandani, local resident, A52 by PW168 Mandakani Bhatiya,
injured passenger, PW148 Hemendra R. Das, GRP constable and PW
230 Mohhabatsinh Jhala, PSI GRP. A53 and A54 are identified by
injured passengers and GRP constables PW150 and 146 and PW139
and PW143. All the above accused belong to Sessions Case No.69 of
2009.
A1 of Sessions Case No.70 of 2009 was identified by
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injured passenger PW124 and PW160 and local resident PW203.
A5 and A6 of Sessions Case No.71 of 2009 were identified
by local resident PW149 and passenger PW109 and PW161, ASI, GRP.
A1 of Sessions Case No.72 of 2009 was named in
deposition by PW233.
A2 of Sessions Case No.73 of 2009 named and identified
by local resident PW149.
A1, A2 and A3 of Sessions Case No.75 of 2009 were
identified by local residents and also identified other accused viz. PW
159, PW175, injured passenger, PW208 and PW172 respectively.
A1 and A2 of Sessions Case No.76 of 2009 were identified
by PW149, PW208, local resident.
A4 of Sessions Case No.78 of 2009 was identified by local
resident PW172 and injured passenger PW168.
A2 of Sessions Case No.79 of 2009 was identified by PW
149 local resident.
A1 of Sessions Case No.80 of 2009 was identified b y PW
163 PW236 and PW199.
A1 of Sessions Case No.81 of 2009 was identified by local
resident and injured passenger PW149 and PW150.
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A1 of Sessions Case No.83 of 2009 was identified by PW
146 GRPO constable.
A1 of Sessions Case No.86 of 2009 was identified by two
injured passengers viz. PW168 and PW170 and local resident PW172.
A1 of Sessions Case No.204 of 2009 was identified by PW
172 local resident.
In the form of documentary evidence in cases of all the
above accused of different sessions cases, various panchnamas were
relied on to which detailed reference is made by Mr. J.M.Panchal,
learned Special Public Prosecutor.
PART VIIIB
Set of Evidence in brief relied on by Mr. J.M.Panchal, learned
Special Public Prosecutor is as under:
CONFIRMATION CASE No.1/2011 TO 10/2011
NAMES OF THE NAME OF THE ACCUSED Page
WITNESSES no./vol.no./REMARKS
ACUTTING OF
VESTIBULES
Pw.236 Ex.1231 Ajay Baria 1. Mehboob Latiko 12782/38
PW. 237 Ex.1252 Sikander 1. Mehboob Latiko 12845/39
Shaikh
Confession Statement of 1. Mehboob Latiko 13335/39
Ex.1469
BFORCIBLE OPENING OF
SLLIDING DOOR
Pw. 236 Ex.1231 Ajay Baria 1. Mehboob Latiko 12782/38
Confession Statement of 1. Mehboob Latiko 13335/39
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Ex.1469
CACCUSED WHO
ENTERED S6 BY
SLIDING DOOR
Pw.236 Ex.1231 Ajay Baria 1. Mehboob Latiko 12782/38
2. Jabi bin Yamin
3. Shaukat Ahmed Charkha
@ lalu (Absconding)
Pw.237 Ex. 1252 Sikander 1. Mehboob Latiko 12845/38
Shaikh 2. Jabi bin Yamin
3. Shaukat Ahmed Charkha
@ lalu (Absconding)
Confession Statement of 1. Mehboob Latiko 13335/39
Jabir Ex.1469 2. Jabi bin Yamin
3. Shaukat Ahmed Charkha
@ lalu (Absconding)
DACCUSED PERSON
WHO WENT INSIDE S6
BY SLIDING DOOR WITH
CARBOYS
Pw. 237 Ex.1231 Ajay Baria 1. Mehboob Latiko 12782/38
2. Jabi bin Yamin
3. Shaukat Ahmed Charkha
@ lalu (Absconding)
Pw.237 Ex. 1252 Sikander 1. Mehboob Latiko 12845/38
Shaikh 2. Jabi bin Yamin
3. Shaukat Ahmed Charkha
@ lalu (Absconding)
Confession Statement of 1. Mehboob Latiko 13335/39
Jabir Ex.1469 2. Jabi bin Yamin No reference to carboy
3. Shaukat Ahmed Charkha
@ lalu (Absconding)
EACCUSED PERSON
WHO OPENED THE
DOOR OF ONSIDE OF S6
Pw. 237 Ex.1231 Ajay Baria 1. Shaukat Ahmed Charkha 12782/38
@ lalu (Absconding)
Confession Statement of 1. Shaukat Ahmed Charkha 13335/39
Jabir Ex.1469 @ lalu (Absconding)
Pw.237 Ex. 1252 Sikander Deposed that after they 12845/38 does not name
Shaikh went inside onside door
opened
FACCUSED PERSONS
WHO WENT INSIDE S6
THROUGH THE DOOR OF
ONSIDE
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Pw.236 Ex.1231 Ajay Baria 1. Rafik Bhatuk 12782/38
2. Irfan Bhobho
3. Imran Sheru
(Absconding)
Pw.237 Ex.1252 Sikander 1. Rafik Bhatuk 12845/38
Shaikh 2. Irfan Bhobho
3. Imran Sheru
(Absconding)
Confession Statement of 1. Rafik Bhatuk 13335/39
Jabir Ex.1469 2. Irfan Bhobho
3. Imran Sheru
(Absconding)
GACCUSED WHO USED
INFLAMMABLE FROM
OUTSIDE
Pw.236 Ex.1231 Ajay Baria 1. Hassan Ahmed Charkha 12782/38
@ Lalu
2. Irfan Pataliya
3. Ramzani bin Yamin
Pw.237 Ex.1252 Sikander 1. Hassan Ahmed Charkha 12845/38
Shaikh @ Lalu
2. Irfan Pataliya
3. Ramzani bin Yamin
Confession Statement of 1. Hassan Ahmed Charkha 13335/39
Jabir Ex.1469 @ Lalu
2. Irfan Pataliya
3. Ramzani bin Yamin
HACCUSED POURING
INFLAMMABLE IN S6
FROM ONSIDE WINDOW
ON VADODARA SIDE
Pw.236 Ex.1231 Ajay Baria 1. Razak Kurkur 12782/38
2. Salim Panwala Supporting by lifting carbo
(Abscond)
Pw.237 Ex.1252 Sikander 1. Razak Kurkur 12782/38
Shaikh 2. Salim Panwala Supporting by lifting carbo
(Abscond)
IACCUSED THROWING
BURNING RAG IN S6
Pw.236 Ex.1231 Ajay Baria 1. Hassan Ahmed Charkha 12782/38
@ Lalu
Pw.237 Ex.1252 Sikander 1. Hassan Ahmed Charkha 12845/38
Shaikh @ Lalu
Confession Statement of 1. Hassan Ahmed Charkha 13335/39
Jabir Ex.1469 @ Lalu
JACCUSED PERSONS
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ENGAGED IN THE ACT
OF VIOLENCE ON S6
COACH
Pw.236 Ex.1231 Ajay Baria 1. Yakub Pataliya 12782/38
2. Aiyub Pataliya
3. Mehboob Popa
4. Shoeb Kalandar
5. Anwar Bala
6. Ibrahim
7. Babu Pataliya
Pw.237 Ex.1252 Sikander 1. Yakub Pataliya 12782/38
Shaikh 2. Aiyub Pataliya
3. Razak Kurkur
4. Billal Badam
5. Hani Badam
6. Sddik Badam
7. Kadar Pataliya
8. Irfan Pataliya
9. Rauf Kamli
10. Farukh (Razak no
Banvevi)
Pw.206 Ex.1060 Ajay Baria 1. Hasan Lalu 12308/38
2. Shaukat Lalu
3. Mohd. Lalu
4. Kadar Pataliya
5. Babu Patalia (Juvenile)
6. Shoeb Kalandar
7. Yunus Ghadiyali
8. Mehboob Popa
9. Salim Panwalo (abscond)
10. Shaukat Bibino
11. Shaukat Bhano
12. Ramzani Bibino
Pw. 233 Ex. 1219 Dilip 1. Abdul Razak (Kurur) 12724/37
Gaimal Chelani 2. Haji Billal
3. Billal Badam
4. Shaukat Badam
5. Siddik Badam
6. Irfan Bhopo
7. Sattar Gaddi
8. Shaukat Ahmed Lalu
9. Kasam bhamir
10. Tiger
CONFIRMATION CASE NO.1/2011 TO 10/2011
Evidence for the Conspiracy and corroboration:
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1. Confessional Statement of Jabir: Ex:1649 Page No:13339/vol;39
Corroborating evidences:
1. Purchase of Petrol in large quantity on 26.2.2002 night
Corroboration
a) PW 224 Ranjit Jodha Patel Ex:1139 Page No.12488/vol 37
b) PW 231 Prabhat Gulab Patel Ex:1206 Page No.12684/vol 37
2. Loading of Carboys in the Tempy on 27.2.2002 and taking to Ali Masjid near
ACabinCorroboration
a) PW 236 Ajay Kanu Bariya Ex:1231 Page No.12782/vol 38
3. Cutting of Vestibule
Corroboration
a) PW 236 Ajay Kanu Bariya Ex:1231 Page No.12782/vol 38
b) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
4. Forcibly opening of the Sliding Door
Corroboration
a) PW 236 Ajay Kanu Bariya Ex:1231 Page No.12782/vol 38
b) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
c) PW 88 Shantibhai Patel Ex:642 Page No.11143/vol 33
d) PW 93 Shardaben Patel Ex:657 Page No.11161/vol 33
e) PW 99 Prakash Taili Ex:674 Page No.11209/vol 33
f) PW 102 Rampal Jigilal Ex:680 Page No.11224/vol 33
g) PW 114 Subhash Mishra Ex:719 Page No.11304/vol 33
h) Panchnama of the Sliding Door Ex:220 Page No.10040/vol 28
i) Rough Notes dt 11.7.02 of FSL of Site Visit Ex:1160 (Not in P.B.)
j) Report dt. 20.7.02 of the FSL Ex:1159 Page No.12544/vol 37
k) 15photos by FSL Ex:796 (Not in P.B.)
5. Accused Entering with carboys S6 Coach through sliding Door
Corroboration
a) PW 236 Ajay Kanu Bariya Ex:1231 Page No.12782/vol 38
b) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
6. OnSide Door of S6 of opened and Accused enter S6 with carboys
Corroboration
a) PW 236 Ajay Kanu Bariya Ex:1231 Page No.12782/vol 38
b) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
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7. Inflammable Liquid thrown inside the coach S6
Corroboration
a) PW 236 Ajay Kanu Bariya Ex:1231 Page No.12782/vol 38
b) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
c) PW 79 Amar Tiwari Ex:619 Page No.111070/vol 32
Fire back side
d) PW 80 Gyanprasad Ex:621 Page No.11078/vol 32
Fire back side
e) PW 81 Puja Kushwaha Ex:625 Page No.11084/vol 32
f) PW 85 Rakesh Patel Ex Page No.11118/vol 32
g) PW 86 Hariparasad Joshi Ex:638 Page No.11130/vol 33
h) PW 94 Bachu Ladva Ex:662 Page No.11167 /vol 33
Fire back side
i) PW 113 Radhesham Mishra Ex:715 Page No.11297 /vol 33
j) PW 114 Shubash Mishra Ex:719 Page No.11304 /vol 33
k) PW 119 Punam Kumari Ex:729 Page No.11837 /vol 33
l) PW 118 Ashwin Ggovind Ex:727 Page No.11327 /vol 33
m) PW 107 Pursottam Patel Ex:690 Page No.11253 /vol 33
n) PW 110 Bhupat Dave Ex:696 Page No.11275 /vol 33
o) PW 123 Rambhai Patel Ex:734 Page No.11358 /vol 33
Fire back side
p) PW 124 Dilip J Patel Ex:738 Page No.11362 /vol 33
q) PW 149 Janak Dave Ex:810 Page No.11644 /vol 34
r) PW 151 Dipak Ex:814 Page No.11665 /vol 34
s) PW 154 Chandrashankar Soniya Ex:823 Page No.11743 /vol 34
t) PW 155 Manoj Advani Ex:825 Page No.11757 /vol 34
u) PW 157 Savitaben Sadhu Ex:828 Page No.11801 /vol 35
v) PW 159 Rajesh Darji Ex:834 Page No.11813 /vol 35
w) PW 167 Harsukh Advani Ex:862 Page No.11934 /vol 35
x) PW 168 Mandakiniben Ex:867 Page No.11955 /vol 35
Fire back side
y) PW 170 Pravin Amtha Patel Ex:873 Page No.11999 /vol 35
z) PW 172 Nitin Pathak Ex:878 Page No.12026 /vol 35
aa) PW 208 Murli Mulchandani Ex:1067 Page No.12335 /vol 36
bb) Panchnama of scene of offence Ex:85 Page No.9785 /vol 27
cc) Panchnama of Coach S6 Ex:86 Page No.97909/vol 27
dd) FSL report dt. 20.3.02 Ex:1173 Page No.12571/vol 37
ee) PW 240 M. S. Dahiya FSL Expert Ex:1347 Page No.12982 /vol 38
ff) Rough Notes of Site visit of PW:240 Ex:1348 (Not in P.B.)
gg) 18 Photos by Pw.240 of S6 Ex:18281845 (Not in P.B.)
hh) Reply to queries of SIT Ex:1354 Page No.13012 /vol 38
8. Throwing of Burning Rag in S2
Corroboration
a) PW 216 Mohd. Imad Ex:1115 Page No.12428/vol 37
9. Assault on passenger and snatching of golden chain and rings
Corroboration
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a) PW 170 Pravin Amtha Ex:873 Page No.11999/vol 35
10. One passenger surrounded by accused and he replies to be an army man and
shows paper disclosing his name as GovindsinghCorroboration
a) PW 202 Govind Ratan Panda Ex:1024 Page No.12248/vol 36
EVIDENCE OF PW.236 AJAY BARIYA EX:1231 PAGE NO.12782/VOL 38.
1. Carboys taken to Ali masjid nr. Acabin Tempy on 27.2.02
Corroboration
a) Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
b) Panchnama of Seizure of Tempy Ex:377 Page No.10350 /vol 29
c) Panchnama of Identification of Tempy Ex:228 Page No.10058 /vol 28
d) Rehearsal of the Tempy Ex:1014 Page No.12239 /vol 36
2. Cutting of Vestibule between coaches S6 and S7
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b)Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
3. Forcible opening of the Sliding Door between coaches S6 and S7 and entering S6
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b)Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
4. Onside door of S6 opened and accused entering S6
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b)Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
5. Accused throwing Petrol from outside in S6 Coach
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b)Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
c) PW 79 Amar Tiwari Ex:619 Page No.111070/vol 32
Fire back side
d) PW 80 Gyanprasad Ex:621 Page No.11078/vol 32
Fire back side
e) PW 81 Puja Kushwaha Ex:625 Page No.11084/vol 32
f) PW 85 Rakesh Patel Ex Page No.11118/vol 32
g) PW 86 Hariparasad Joshi Ex:638 Page No.11130/vol 33
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h) PW 94 Bachu Ladva Ex:662 Page No.11167 /vol 33
Fire back side
i) PW 113 Radhesham Mishra Ex:715 Page No.11297 /vol 33
j) PW 114 Shubash Mishra Ex:719 Page No.11304 /vol 33
k) PW 119 Punam Kumari Ex:729 Page No.11837 /vol 33
l) PW 118 Ashwin govind Ex:727 Page No.11327 /vol 33
m) PW 107 Pursottam Patel Ex:690 Page No.11253 /vol 33
n) PW 110 Bhupat Dave Ex:696 Page No.11275 /vol 33
o) PW 123 Rambhai Patel Ex:734 Page No.11358 /vol 33
Fire back side
p) PW 124 Dilip J Patel Ex:738 Page No.11362 /vol 33
q) PW 149 Janak Dave Ex:810 Page No.11644 /vol 34
r) PW 151 Dipak Ex:814 Page No.11665 /vol 34
s) PW 154 Chandrashankar Soniya Ex:823 Page No.11743 /vol 34
t) PW 155 Manoj Advani Ex:825 Page No.11757 /vol 34
u) PW 157 Savitaben Sadhu Ex:828 Page No.11801 /vol 35
v) PW 159 Rajesh Darji Ex:834 Page No.11813 /vol 35
w) PW 167 Harsukh Advani Ex:862 Page No.11934 /vol 35
x) PW 168 Mandakiniben Ex:867 Page No.11955 /vol 35
Fire back side
y) PW 170 Pravin Amtha Patel Ex:873 Page No.11999 /vol 35
z) PW 172 Nitin Pathak Ex:878 Page No.12026 /vol 35
aa) PW 208 Murli Mulchandani Ex:1067 Page No.12335 /vol 36
bb) Panchnama of scene of offence Ex:85 Page No.9785 /vol 27
cc) Panchnama of Coach S6 Ex:86 Page No.97909/vol 27
dd) FSL report dt. 20.3.02 Ex:1173 Page No.12571/vol 37
ee) PW 240 M. S. Dahiya FSL Expert Ex:1347 Page No.12982 /vol 38
ff) Rough Notes of Site visit of PW:240 Ex:1348 (Not in P.B.)
gg) 18 Photos by Pw.240 of S6 Ex:18281845 (Not in P.B.)
hh) Reply to queries of SIT Ex:1354 Page No.13012 /vol 38
6. Inflammable liquid being poured in S6 on Vadodara side by standing on the
Steps of S6.
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b) PW 81 Puja Kushwaha Ex:625 Page No.11084/vol 32
7. Throwing of burning Rags in S6 Coach
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b) General Corroboration by the 50 passengers who are eye witnesses to the incident.
8. Pelting of Stones on the Train near Acabin
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b) General Corroboration by the 50 passengers who are eye witnesses to the incident.
c) PW 233 Dilip Gaimal Chelani Ex.1219 Page No.12724/vol 37
d) PW 127 R.P. Meena ASM ACabin Ex.744 Page No.11391/vol 33
e) PW 128 Akhil Sharma Ex.748 Page No.11399/vol 33
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f) PW 131 Mukesh Pachori CoDriver Ex.760 Page No.11442/vol 33
g) PW 135 S.N. Verma Ex.777 Page No.11475/vol 34
h) PW 136 Sajjan Ranival TTE Ex.780 Page No.11488/vol 34
i) PW 228 Rajendra Rao Driver Ex.1189 Page No.12612/vol 37
j) PW 171 Ambishkumar RPF Ex.876 Page No.12017/vol 35
k) PW 173 Karansinh RPF Ex.885 Page No.12050/vol 35
l) PW 140 Punja Bavji GRP Ex.786 Page No.11532/vol 34
m) PW144 Manish Vasava GRP Ex.793 Page No.11581/vol 34
n) PW 146 Laxman Nansinh GRP Ex.799 Page No.11605/vol 34
o) PW 148 Hemendra Das GRP Ex.802 Page No.11625/vol 34
p) PW 161 Indrasinh GRP Ex.841 Page No.11849/vol 35
q) PW 166 Dalabhai GRP Ex.852 Page No.11918/vol 35
r) PW 199 Prabahat Bhoi GRP Ex.986 Page No.12194/vol 36
s) PW 230 M.J. Jhala GRP Psi Ex.1196 Page No.12634/vol 37
9. Breaking of Windows of S6 Coach
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b) General Corroboration by the 50 passengers who are eye witnesses to the incident.
c) PW 233 Dilip Gaimal Chelani Ex.1219 Page No.12724/vol 37
d) PW 127 R.P. Meena ASM ACabin Ex.744 Page No.11391/vol 33
e) PW 128 Akhil Sharma Ex.748 Page No.11399/vol 33
f) PW 131 Mukesh Pachori CoDriver Ex.760 Page No.11442/vol 33
g) PW 135 S.N. Verma Ex.777 Page No.11475/vol 34
h) PW 136 Sajjan Ranival TTE Ex.780 Page No.11488/vol 34
i) PW 228 Rajendra Rao Driver Ex.1189 Page No.12612/vol 37
j) PW 171 Ambishkumar RPF Ex.876 Page No.12017/vol 35
k) PW 173 Karansinh RPF Ex.885 Page No.12050/vol 35
l) PW 140 Punja Bavji GRP Ex.786 Page No.11532/vol 34
m) PW144 Manish Vasava GRP Ex.793 Page No.11581/vol 34
n) PW 146 Laxman Nansinh GRP Ex.799 Page No.11605/vol 34
o) PW 148 Hemendra Das GRP Ex.802 Page No.11625/vol 34
p) PW 161 Indrasinh GRP Ex.841 Page No.11849/vol 35
q) PW 166 Dalabhai GRP Ex.852 Page No.11918/vol 35
r) PW 199 Prabahat Bhoi GRP Ex.986 Page No.12194/vol 36
s) PW 230 M.J. Jhala GRP Psi Ex.1196 Page No.12634/vol 37
t) Panchnama of Coach S6 Ex. 86 Page No.7909/vol 27
u) PW 162 Gangaram Railway Ex. 845 Page No.11867/vol 35
EVIDENCE OF PW.237 SIKANDER MOHD. SHAIKH EX.1252 PAGE NO.12782/VOL38.
1. Cutting of Canvas vestibule between S6 and S7 coaches
Corroboration
a) PW 236 Ajay Kanu Baria Ex:1231 Page No.12782/ vol38
b)Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
2. Pouring of the Inflammable inside S6 by climbing on Steps of Coach
a) PW 236 Ajay Kanu Baria Ex:1231 Page No.12782/ vol38
b)PW 81 Puja Kushwaha Ex:625 Page No.11084/vol 32
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3. Onside Door of S6 opened and accused entering S6 with carboys
Corroboration
a) PW 236 Ajay Kanu Baria Ex:1231 Page No.12782/ vol38
b)Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
4. Accused persons pouring/throwing Inflammable from windows
Corroboration
a) PW 237 Sikandar Mohd. Shaikh Ex:1252 Page No.12845/vol 38
b)Confession Statement of Jabir Ex.1469 Page No.13335/vol 39
c) PW 79 Amar Tiwari Ex:619 Page No.111070/vol 32
Fire back side
d) PW 80 Gyanprasad Ex:621 Page No.11078/vol 32
Fire back side
e) PW 81 Puja Kushwaha Ex:625 Page No.11084/vol 32
f) PW 85 Rakesh Patel Ex Page No.11118/vol 32
g) PW 86 Hariparasad Joshi Ex:638 Page No.11130/vol 33
h) PW 94 Bachu Ladva Ex:662 Page No.11167 /vol 33
Fire back side
i) PW 113 Radhesham Mishra Ex:715 Page No.11297 /vol 33
j) PW 114 Shubash Mishra Ex:719 Page No.11304 /vol 33
k) PW 119 Punam Kumari Ex:729 Page No.11837 /vol 33
l) PW 118 Ashwin govind Ex:727 Page No.11327 /vol 33
m) PW 107 Pursottam Patel Ex:690 Page No.11253 /vol 33
n) PW 110 Bhupat Dave Ex:696 Page No.11275 /vol 33
o) PW 123 Rambhai Patel Ex:734 Page No.11358 /vol 33
Fire back side
p) PW 124 Dilip J Patel Ex:738 Page No.11362 /vol 33
q) PW 149 Janak Dave Ex:810 Page No.11644 /vol 34
r) PW 151 Dipak Soni Ex:814 Page No.11665 /vol 34
s) PW 154 Chandrashankar Soniya Ex:823 Page No.11743 /vol 34
t) PW 155 Manoj Advani Ex:825 Page No.11757 /vol 34
u) PW 157 Savitaben Sadhu Ex:828 Page No.11801 /vol 35
v) PW 159 Rajesh Darji Ex:834 Page No.11813 /vol 35
w) PW 167 Harsukh Advani Ex:862 Page No.11934 /vol 35
x) PW 168 Mandakiniben Ex:867 Page No.11955 /vol 35
Fire back side
y) PW 170 Pravin Amtha Patel Ex:873 Page No.11999 /vol 35
z) PW 172 Nitin Pathak Ex:878 Page No.12026 /vol 35
aa) PW 208 Murli Mulchandani Ex:1067 Page No.12335 /vol 36
bb) Panchnama of scene of offence Ex:85 Page No.9785 /vol 27
cc) Panchnama of Coach S6 Ex:86 Page No.97909/vol 27
dd) FSL report dt. 20.3.02 Ex:1173 Page No.12571/vol 37
ee) PW 240 M. S. Dahiya FSL Expert Ex:1347 Page No.12982 /vol 38
ff) Rough Notes of Site visit of PW:240 Ex:1348 (Not in P.B.)
gg) 18 Photos by Pw.240 of S6 Ex:18281845 (Not in P.B.)
hh) Reply to queries of SIT Ex:1354 Page No.13012 /vol 38
5. Throwing of burning Rags in S6 Coach
Corroboration
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a) PW 236 Ajay Kanu Baria Ex:1231 Page No.12782/ vol38
b) General Corroboration by the 50 passengers who are eye witnesses to the incident.
PART VIIIC
LIST OF CITATIONS RELIED ON BY MR JM PANCHAL,
LEARNED SPECIAL PUBLIC PROSECUTOR ARE AS UNDER:
Sr. Parties Citation Issue
No.
1 Vinod Kumar vs. (2015)3 SCC 138 Minor discrepancies to
State of Haryana [para 24] 1637 be ignored and also
against principles to be
born in mind in a case
under Sections 378
and 386 of the Code of
Criminal Procedure
Code – acquittal.
2 State of Karnataka (2015)1 SCC 323 Appreciation of
vs. Suvarnamma [Para 12.4] Evidence
3 Om Prakash vs. (2014)5 SCC 753 Sections 302/149 and
State of Haryana 148 - Vicarious
liability - common
object to murder.
4 Chandra Prakash v. 2014 AIR SCW 3055 Section 120B -
State of Rajasthan [paras 69, 70 & 73] criminal conspiracy –
as conspiracy is never
hatched in open –
evaluation of proved
circumstances play a
vital role in
establishing the
criminal conspiracy.
5 Gulam Sarbar vs. (2014)3 SCC 401 Sec.134 - Number of
State of Bihar (now [paras 11 to 24] witnesses - Test is
Jharkhand) [para 19 more imp.] whether the evidence
has a ring of truth, is
cogent, credible and
trustworthy or
otherwise - conviction
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can even be based on
testimony of a sole
witness, if same
inspires confidence.
6 Gurmail Singh vs. (2013)4 SCC 228 Unlawful assembly -
State of Punjab [para49] Common object -
vicarious /
constructive liability -
applicability of
provisions of Sec.149
will come into play
and cover every
member of unlawful
assembly when; firstly
there must be in
existence an unlawful
assembly within the
meaning of S.141;
secondly an offence
must have been
committed by a
member of unlawful
assembly; thirdly the
office committed must
be in prosecution of a
common object of
unlawful assembly or
must be such as the
members of unlawful
assembly knew to be
likely to be committed
in prosecution that
object.
7 Thoti Manohar vs. (2012)7 SCC 723 Minor discrepancies
State of Andhra [para 38] not touching the core
Pradesh. of the matter are not
relevant & prosecution
case cannot be
discarded on the basis
of such discrepancies,
inconsistencies,
contradictions, etc
8 Mano Dutt vs. State (2012)4 SCC 79 for credibility of
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of U.P. [paras 30 & 31] injured witnesses
9 Santosh Kumar (2010) 9 SCC 747
Singh vs. State [para 68] do
through CBI
10 Baij Nath Sah v. (2010)6 SCC 736 Sec.164 statement is
State of Bihar not substantive
evidence and can be
utilised only in
corroborate or
contradict the witness
visavis statement
made in court.
11 Akhtar vs. State of (2009)13 SCC 722 With regard to Section
Uttaranchal 294(3) of Code, 1973.
12 Vishnu & Ors. vs. (2009)10 SCC 477 When a person
State of Rajasthan [para34] receives injuries in
course of occurrence,
there can be hardly
any doubt regarding
his presence at spot of
incident - Injured
witnesses would not
spare real assailants
and falsely involve
innocent persons.
13 Ravi vs. State (2009)3 SCC (Cri.) Section 134 of
Represented by 736 Evidence Act.
Inspector of Police [paras 18 to 20]
14 Kunju Alias (2008)1 SCC (Cri.) Sole testimony of PW2
Balachandran vs. 331 was not liable to be
State of Tamilnadu interfered with - Sec.
134 of Evidence Act.
15 Sheo Prasad Bhor (2007)2 SCC (Cri.) Section 149 - unlawful
Alias Sri Prasad vs. 45 assembly - Joint
State of Assam liability - Held not
nec736essary that each
person of the assembly
should be assigned
independent part in
the commission of
crime.
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16 Sunil Kumar vs. 2005 SCC [Cr.] 1230 Prosecution need not
State of Rajasthan . [paras 7, 8, 9 & 17] establish over act done
by each accused –
unlawful assembly.
17 Ram Bali v. State of (2004)10 SCC 598 Record of proceedings
U.P. - happenings in court -
what transpired at the
hearing in court -
statement recorded in
the judgment in respect
held, is conclusive
and cannot be
contradicted on
affidavit or by other
evidence.
18 State of Madhya (2004)10 SCC 570] That opinion and
Pradesh v. Sanjay [para 17] books on the subject
Rai have no evidentiary
value unless put to
expert / witness
19 Devender Pal Singh 2002(5) SCC 234 Criminal conspiracy -
vs. State (NCT of [paras 43 and 44] Section 120A and 120
Delhi) B - essential ingredient
is agreement to commit
an offence - it can also
be inferred from
conduct of the parties -
overt act in furtherance
of, by all the
conspirators not
necessary.
20 Ramanbhai 2000 SCC (Cri.LJ) for identification in
Naranbhai Patel & 113 court is sufficient and
Ors. vs. State of not holding Test
Gujarat Identification Parade
would not be fatal for
prosecution and there
is no dishonesty nor
any malafide by
prosecution
21 Mehbub Samsuddin 1996 SCC(Cri) 1353 Section 120A and 120
Malek v. State of [para37] B – criminal conspiracy
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Gujarat – communal riot.
22 Shamshul Kanwar 1995(4) SCC 430 Case diary – Section
vs. State of U.P. [para10] 172 of Code, 1973.
23 Ajay Agarwal v. AIR 1993 SC 1637 Conspiracy –
Union of India [paras 9, 11, 12, 13, continuing offence.
16, 22, 24 & 25]
24 Malkiat Singh vs. (1991)4 SCC 341 About importance of
State of Punjab [para 11] case diary of
investigation visavis
section 172 of Code
25 Madi Ganga v. State AIR 1981 SC 1165 Confession made to
of Orissa Magistrate –
Evidentiary value.
26 Yash Pal Mittal v. AIR 1977 SC 2433 Section 120A –
State of Punjab [paras 9 & 10] Criminal conspiracy
ingredients
27 Piara Singh vs. [AIR 1977 SC 2274] When there are two
State of Punjab [para 7] conflicting medical
opinions, the opinion
of that expert which
supports the direct
evidence must be
accepted.
28 Ram Kishan Singh (1972)3 SCC 280 A statement under
v. Harmit Kaur Section 164 of the
Code is not sustainable
evidence. It can be
used to corroborate the
statement of a witness
and to contradict a
witness.
29 The State of U.P. v. AIR 1971 SC 708 In case of on the spot
Rajju & Ors.. arrest of the accused,
no Test Identification
parade is required
unless requested by
accused.
30 Bhagwan Das vs. [AIR 1957 SC 589] On Sections 45 and 46
State of Rajasthan [para 13] of the Evidence Act.
31 State of NCT of Special Leave to Sting Operation
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Delhi v. Mukesh Appeal [Cr.]
No.2637 of 2013
32 Pargan Singh v. Criminal Appeal Identification before
State of Punjab No.47 of 2014 the Court
[paras 14 to 19]
33 Anup Lal Yadav v. Criminal Appeal Overt Act - Section
State of Bihar No.775 of 2007 149
[paras 15, 16, 19 &
20]
PART VIIID
SUBMISSIONS OF MR RS JAMUAR, LEARNED COUNSEL FOR SIT
1 Mr. Jamuar, learned counsel for SIT by and large adopted
submissions of Mr. J.M.Panchal, learned Special Public Prosecutor and
produces on record orders dated 26.03.2008 and 01.05.2009 of the Apex
Court in the case of National Human Rights Commission v. State of
Gujarat reported in AIR 2009 SC Supp. 318 about constitution of SIT,
object behind that and directions contained therein and finally
satisfaction expressed by the Apex Court about investigation carried out
by SIT for the subject matter.
2 Section 391 of the Code application is not available to the
accused – convicts as they had not availed remedy under Section 311 of
the Code before the trial Court and sting operation cannot be taken into
consideration. Reliance is placed on decision in the case of Ashok
Bhutia vs. State of Sikkim dated 25.02.2011 of Apex Court.
PART VIIIE
LIST OF CITATIONS RELIED ON BY MR RS JAMUAR, LEARNED
SENIOR COUNSEL FOR THE SIT ARE AS UNDER:
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Sr. Parties Citation Issue
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1 Krishna Mochi vs. 2002 SCC [Cri.] For imposition of death
State of Bihar 1220 sentence upon
conviction under
Section 302 of the IPC,
when conspiracy is
proved
2 Kunal Majumdar v. 2012 Cri. LJ 4635 Upon death reference,
State of Rajasthan special and onerous
responsibility is caste
upon the High Court
while deciding the
death reference.
3 Jinnappa Subbappa 1961(2) Cri LJ 250 That failure of the
Gabannayar [Vol.63, C.N.76] Magistrate to append
certificate, as required
under Subsection (3)
of Section 164 of the
Code is only an
irregularity and
curable under Section
537 of the Code and
the duty cast upon the
Magistrate while
commencing recording
of the statement that
the accused was in the
free atmosphere on a
Magistrate court is not
a rule of law, but a
rule of caution.
4 Ashok Tshering Criminal Appeal That an additional
Bhutia v. State of No.945 of 2003 evidence can be taken
Sikkim at the appellate stage
in exceptional
circumstances to
remove irregularity,
where the
circumstances so
warrant in public
interest.
5 Mohd. Maniar v. 1994(2) BLJR 1433 About Section 164 of
State of Bihar the Code, 1973 to
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apply judicial mind by
the Magistrate.
6 State of Kerala v. AIR 1985 SC 823 About reflection time
Ammini to be given under
Section 164 of the
Code, 1973.
PART VIIIF
SUBMISSIONS OF MR. BHARAT NAIK FOR VICTIMS
1 Mr. B.B.Naik, learned Senior Advocate appearing with Mr.
H.M.Prachchhak, Mr. Harnish V. Darji, Mr. Pravin Gondalia, Mr. Jayesh
A. Dave, Mr. Samir J. Dave, Mr. Bharat K. Dave, Mr. Sudhanshu S. Patel,
Mr. Suresh B. Bhatt, Mr. Yatin Soni and Mr. Nirav C. Thakkar for victims
fully supported the case of the prosecution and adopted the submissions
made by Mr. J.M.Panchal, learned Special Public Prosecutor.
2 Mr. Naik, learned Senior Counsel relied on a chart prepared
containing list of evidence against acquitted accused which was not
properly appreciated by the trial court and, therefore, acquittal order is
passed which deserves to be interfered with. That contents of the above
chart containing evidence are almost similar to that of the evidence
relied on by Shri J.M.Panchal, learned Special Public Prosecutor
appearing for the State of Gujarat in Criminal Appeal No.743 of 2011
filed against acquittal of accused to which detailed reference is made in
Part VIIA of this judgment and, therefore, we do not propose to
reproduce the same.
3 About persons joining conspiracy subsequently are equally
liable for the offence as held by the Apex Court in the case of
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439 and on the submission that procedural lacuna or defect in recording
statement under Section 164 of the Code can be cured in view of
provisions of Section 463(1) of the Code in the case of Ram Singh vs.
Sonia [(2007)3 SCC 1]. Another decision relied on the line is 2000(6)
SCC 269, para17, in which the statement under Section 164 was
recorded after about one month.
4 That custody of Jabir accused was authorized and legal for
the period between 29th January to 3rd February, 2002 as per order
passed by the Chief Judicial Magistrate, Godhra and his testimonies.
Further reliance is placed in the case of R. Shaji vs. State of Kerala
(2013)14 SCC 266 [paras 26 to 29] for Section 164 of the Code.
5 Reverting to conspiracy, decision in the case of State of
Kerala vs. Ammini AIR 1985 SC 823 paras 54 and 55 is relied on; and
also (2010)6 SCC 1, Siddharth Vasisth Alias Manu Sharma vs. State
[NCTG of Delhi] [paras 97 and 295].
6 Thus, overall evidence and conjoint reading establish
conspiracy execution thereof, violent unlawful assembly and order of
conviction is not to be disturbed while acquittal to be reversed and
compensation under Section 357 of the Code to be accorded to the
victims.
7 Learned counsel Mr. Vijay Patel appearing for Mr. Suresh
Bhatt submitted a written note emphasizing complaint lodged by driver
of the trail which reveal assailants were apprehended by police, but not
knowing their names and acquitting such accused by the trial court as
per the reasoning at page 424 and 425 of the judgment is illegal.
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PART VIIIG
LIST OF CITATIONS RELIED ON BY MR BB NAIK, LEARNED SENIOR
COUNSEL FOR VICTIMS ARE AS UNDER:
Sr. Parties Citation Issue
No.
1 Mohd. Jamiludin (2014)7 SCC 443
Nasir v. State of
West Bengal
2 R. Shaji vs. State of (2013)14 SCC 266 Sec.120B -
Kerala [paras 26 to 29, circumstantial evidence
33 to 37, 54 to 56] – motive – relevance of
– held existence of
motive is important in
a conviction based on
circumstantial evidence
though in a case where
there are direct
eyewitnesses, absence
or inadequacy of
motive cannot stand in
the way of conviction.
3 Vyas Ram Alias Vyas (2013)12 SCC 349 Sec. 149 - Unlawful
Kahar v. State of assembly - constructive
Bihar or vicarious liability -
common object.
4 Ganga Singh Vs. (2013)7 SCC 278 Reiterated, when
State of Madhya [para17] prosecution proves its
Pradesh case beyond
reasonable doubt,
acquittal of accused on
ground of defective
investigation is
impermissible. It only
if defects in
investigation cast
serious doubt on
prosecution case,
would accused be
entitled to acquittal
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due to such doubt.
5 Dayal Singh and (2012)8 SCC 263 Defective or illegal
others Vs. State of investigation -
Uttaranchal investigation and
doctor's report
coloured with
motivation - power of
trial court to issue
directions for
disciplinary and other
actions against them.
Role of the Trial court
is to achieve the object
of `fair trial'.
6 Ranjit Singh v. State (2011)4 SCC 336 In a fit case court may
of Madhya Pradesh [para27] believe a reliable sole
eyewitness if in his
testimony he makes
specific reference to
identity of individual
and his specific overt
acts in the incident -
section 302/149 and
148 - Sole eye witness
- injured eye witness -
due weightage to be
given to that
testimony.
7 Rabhindra Kumar (2011)2 SCC 490 Sectin 164 of the Code,
Pal Alias Dara Singh [paras 51 & 52] 1973. Principles
v. Republic of India enumerated.
8 Siddharth Vasisth (2010)6 SCC 1 Delayed examination
Alias Manu Sharma [paras 97 and 295]. of witnesses does not
vs. State [NCTG of necessarily discredit
Delhi] their testimonies.
9 State of Punjab vs. (2009)16 SCC 91 Confessional Statement
Harjadev Singh [para13 including under Section 164 –
para 16] procedural lapse can
be cured.
10 Mohd. Amin v. CBI (2008)15 SCC 49 Confession under -
Evidentiary value /
admissibility /
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applicability to co
accused / co
conspirator / abettors -
S.15 confession is
admissible not only
against the maker but
also against coaccused
/ coconspirators /
abettors provided such
person has been tried
together with the
maker of confession
and safeguards against
misuse of S.15 are
complied with.
11 Ram Singh vs. Sonia [(2007)3 SCC 1 Circumstances to
paras 18 to 25, 27 to award death penalty.
33 12 Ramesh Singh Alias (2004)11 SCC 305 Sec.164 - Evidence of Photti v. State of [para6] witness whose A.P. statements are recorded by Magistrate - held that by itself would not discredit the said evidence. 13 Madan Singh v. 2004(4) SCC 622 Section 149 - State of Bihar "Common object" - meaning - distinguished from "common intention" - words and phrases - "common", "object", "common object, "common intention". 14 Krishna Mochi & 2002 SCC [Cri.] Ors. v. State of 1220 Bihar 15 Ramprasad vs. State (1999)5 SCC 30 A statement recorded of Maharashtra [para15] by a Magistrate under Sec. 164 becomes usable to corroborate the witnesses as Page 400 of 988 Uploaded by P. SUBRAHMANYAM(HC00165) on Fri Oct 13 2017 Downloaded on : Thu Jan 30 16:49:56 IST 2025 NEUTRAL CITATION R/CC/1/2011 CAV JUDGMENT undefined provided in Sec.157 of the Evidence Act or to contradict him as provided in Sec.155 thereof. 16 State of (2006)6 SCC 269 Sec. 164 of the Code,
Maharashtra v. [17 to 25, 42 to 46] 1973. Even if accused
Damu s/o. Gopinath is produced from police
Shide custody, such
confession cannot be
discriminated.
17 State of U.P. v. (1998)4 SCC 302 Witnesses – public
Krishna Gopal servant – investigating
officer – testimony of
should not be rejected
merely on ground of
being interested in
success of the
prosecution case.
18 Ajay Agarwal v. AIR 1993 SC 1637 Section 120A of the
Union of India [paras 9, 11,l12, 13, IPC
16, 22 & 24]
19 Henry Westmuller AIR 1985 SC 823 Section 164 of the
Roberts etc. v. State paras 54 and 55 Code, 1973.
of Assam
20 Bhe Ram V. State of AIR 1980 SC 957 In case of rioting under
Haryana S.149 it is not
necessary that any
specific act falsus in
uno falsus is not
applicable to criminal
trials - witnesses have
recognized appellants
rightly no ground to
distrust their evidence.
21 Shivanarayan AIR 1980 SC 439 A conspiracy is always
Laxminarayan Joshi [para14] hatched in secrecy and
v. State of it is impossible to
Maharashtra adduce direct evidence
of the same. The
offences can be only
proved largely from the
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inference drawn from
acts or illegal omission
committed by the
conspirators in
pursuance of a
common design.
22 Badri vs. State of (1976)1 SCC 442 Recording of statement
Rajasthan of a witness by
Magistrate during
police investigation -
held by itself does not
affect the credibility of
the witness.
23 Momin vs. The State AIR 1971 SC 885 U/s. 120B mere
of Maharashtra para7 agreement is sufficient
- conspiracy need not
be proved by direct
evidence.
24 Ram Charan vs. The AIR 1968 SC 1270 A statement of a
State of U.P para8 witness is previously
recorded under Section
164, it leads to an
inference that there
was a time when the
police thought the
witness may change
but if the witness sticks
to the statement made
by him throughout, the
mere fact that his
statement was
previously recorded
under Section 164 will
not be sufficient to
discard it. The court,
however, ought to
receive it with caution
and if there are other
circumstances on
record which lend
support to the truth of
the evidence of such
witnesses it can be
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acted upon.
25 Bhagwan Swarup AIR 1965 SC 682 Section 120A of IPC –
Lal Bishan Lal v. para8 proof of criminal
State of conspiracy - scope and
Maharashtra applicability of Section
10 of Evidence Act.
26 Major E.G.Barsay v. AIR 1961 SC 1761 Sections 120B & 34 of
State of Bombay [para78] the IPC
27 State vs. Shankar AIR 1957 Bom. 226 Section 120A IPC and
Sakharam Jadhav Section 20 of Evidence
Act.
28 Nanak Chand v. AIR 1955 SC 274 Section 149 creates
State of Punjab specified offence but
Section 34 does not -
distinction between
Sections 149 and 34
pointed out.
VOLUMEII
PART IX
SUMMARY OF THE TRIAL COURT JUDGMENT
In para [24] [page 14715] of the impugned judgment, the learned
Sessions Judge under the head Prosecutorial Proposition and
Perception and Defence of the Accused, has recorded factual
aspects and submissions made on law under subheads [A] and
[B] in brief are reproduced herein below:
“PROSECUTORIAL PROPOSIOTNS AND PERCEPTIONS &
DEFENCE OF THE ACCUSEDD [Sec.234 & 314 Cr.P.C.][A] Mr.J.M.Panchal Ld. Special Public Prosecutor, while
arguing on factual aspects and on the law points, has made
submission, mainly on the following points:
“The occurrence of incident is clearly established by the
prosecution.
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The FIR came to be lodged by the Engine Driver without
any undue delay.
Looking to the facts situation, delay of one hour in lodging
FIR cannot be said to be intentional.
Even otherwise, no serious prejudice is caused to the
accused because of delay in lodging FIR.
Copy of the FIR was sent to the Ld. Magistrate (Railway),
on the same day, by the PSO.
No undue advantage has been taken by prosecution, either
of delay in lodging FIR or sending copy thereof, to the Ld.
Magistrate.
The Panchnama of place of occurrence and Inquest
panchnama, both, were drawn simultaneously on the same
day, in presence of panchas by different officers.
Seized articles were also sent to FSL by special messenger
without any undue delay and the same were received intact.
As the incident was of mass casualty, autopsy on dead
bodies, came to be done, by team of different Medical
Officers of the District, in the open space of Railway Yard.
Dead bodies then, sent to Civil Hospital Sola, Ahmedabad
for DNA Test.
Injured persons, first took the treatment at Civil Hospital
Godhra and then, most of them, at Civil Hospital,
Ahmedabad.
P.M. Notes and injury certificates duly proved.
Injured passengers and Karsevaks have supported the
prosecution case.
After receipt of intimation, the police officials immediately
rushed to the spot, and made all efforts to disperse the mob.
15 assailants came to be apprehended armed with deadly
weapons, from the spot by the police.
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The police officials who were serving in Railway Police
Station knew some of the assailants by name and by face.
Remaining were arrested subsequently.
Discovery panchnamas duly proved, by evidence of
panchas and police officials.
T.I. Parade panchnamas are also duly proved.
Panchnama of the Coach S6 was drawn on 2822002, and
seized articles were sent to FSL.
Residues of petrol (Hydro carbons) were noticed on articles
seized from place and coach, in scientific examination by
FSL.
FSL Reports, correspondence etc. duly proved.
There is no reason to disbelieve the Expert’s opinions.
Even in muddamal articles Carboys, seized from accused,
presence of petrol noticed.
To ascertain source of petrol, samples of nearby Petrol
Diesel pumps, were taken and sent to FSL.
Revealing of facts of conspiracy hutched by some of the
accused persons, on the previous night, provisions of POTA
came to be invoked.
However, after repealing of the POTA, the Committee
constituted therein, opined that the incident does not fall
within the provisions of the POTA.
Even the POTA Committee has not denied occurrence of
incident, in the report.
The opinion given by the Review Committee and the
decision of the Hon’ble High Court thereon, have been
challenged by the prosecution, before the Hon’ble Supreme
Court by way of Special Leave Petition and the said
proceedings is still pending.
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To ascertain possibility of pouring inflammable liquid, from
inside the Coach, officers of the FSL were invited for spot
and Coach inspection/examination. After visit and
inspection, as per their suggestion, experiments also came
to be made by placing similar kind of Coach, on the track,
on the same place and throwing water from outside and,
then pouring approximately 60 litres water from inside the
Coach.
The experts opinions support the prosecution case of
conspiracy.
Confessional Statements made by the accused and
witnesses also duly proved.
Confessional Statements of coaccused persons recorded
under Section32 of the POTA, should also be taken into
consideration while appreciating evidence.
Presence of employees of Fire Fighter not denied /
challenged therefore, their evidence about preventing of
tanker by accused from reaching to the spot in time and
damages caused to tanker, by pelting stones should not be
ignored.
Theory of having evidence of minimum two or three
witnesses, in riots cases, cannot be made applicable, since
this is not a riot case at all, and accused should be held
guilty even on the basis of evidence of solitary reliable
witness.
Forming of unlawful assembly, knowledge of assault,
injuries etc. can be said to be duly established by the
prosecution.
In such type of case, overt act by any particular member of
unlawful assembly, is not the requirement of law.
There may be some defects, or lapses in investigation, but
merely on this ground alone, the prosecution case should
not be thrown overboard.
Mr. Panchal, in support of the above submission has also
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placed
reliance on the decisions of the Hon’ble Supreme Court and
the Hon’ble High Court and cited more than 80 reported
judgments, which will be taken into consideration, in the
later part of the judgment, while dealing with particular
subject.
[B] Mr. A.A.Hasan, Mr. A.D.Shah, Mr. Y.A. Charkha, Mr.
L.R. Pathan, Mr. I.M. Munshi and Mr. S.M.Dadi, Ld.
Advocates appearing for the accused persons, on the other
hand, in defence of the accused, have argued the matter at
length individually and then, Mr.A.D.Shah, Mr.I.M.Munshi
and Mr.Y.A.Charkha, have also submitted notes of their
respective arguments at Exh.1576.
Exh. 1587 and 1663.
Their arguments / contentions in defence, may be
summarized as under:
There was delay in lodging FIR, though the Railway Police
Station is hardly 1 k.m. away from the place of incident and
the police officers had already reached to the spot.
In fact the FIR came to be lodged after 12.30 noon, but the
time of lodging FIR as 9.30 a.m. is wrongly noted in the
FIR.
There is manipulation and some facts with regard to arrest
of assailants from the spot have been added subsequently.
In the same way, timings of Inquest panchnama and
autopsy on dead bodies are also found to be in correct.
In the Inquest panchnama, details with regard to articles,
which were found on the dead bodies have not been noted
with perfection.
There is no mention, in the Inquest panchnama, either in
positive or in negative, about presence of any inflammable
liquid like petrol, diesel, kerosene, acid etc on the dead
bodies or articles thereon.
Autopsy on dead bodies came to be conducted in very
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hazardous manner without any sufficient equipments and
then, PM Notes came to be prepared on similar lines, mostly
showing the external and internal parts of all the bodies as
“charred/roasted”, all the injuries as “antemortem” and
cause of death as “Shock due to extensive burn injuries”.
Injured persons though sustained very simple injuries,
without any further requirement, unnecessarily transferred
to Civil Hospital, Ahmedabad for further treatments.
Almost all the Karsevaks were traveling in the train
unauthorizedly and that too, sitting in reserved Coaches.
Karsevaks themselves, misbehaved with Teahawkers and
Muslim girls at Godhra Railway Station on platform No.1
and beaten Teahawkers.
Gathering of crowd was spontaneous and not as a part of
conspiracy as alleged.
Theory of conspiracy, purchase of petrol, its storage etc. is
table story concocted subsequently.
Story of presence of VHP workers of Godhra at Railway
Station for welcoming and offering teabreakfast etc. is also
created other thought.
In the same way story of preventing of Fire Fighter and
attack on it, by stone pelting is also concocted later on, only
with a view to ruin the political career of the accused
Mohmad Kalota and Bilal Haji.
The evidence of nine VHP workers is not reliable and
trustworthy.
Not a single person was apprehended from the spot, but
during a joint combing operation, innocent persons came to
be arrested by Railway police and Godhra Town Police and
then, shown them as accused in both the cases.
The accused persons have been falsely implicated, because
of political or business rivalry.
Employees of petrol pump and witnesses Ajay Kanubhai
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Bariya and Sikandar Shaikh are the planted witnesses.
Confessional statements of accused persons came to be
recorded under threats and the same were retracted, at the
earliest opportunity.
Confessional statements recorded under the POTA, cannot
be taken into consideration, in the present regular trial
proceedings.
T.I. Parades came to be conducted, in complete breach of
established procedure and the provisions of law.
Signatures of panchas were taken on ready
recovery/discovery panchnamas subsequently.
Most of the panch witnesses of Godhra, belong to Sindhi
Community.
Witnesses of nearby area, though available, have not been
examined.
Even statements of passengers and karsevaks, under
Section 161 CrPC were recorded, after much delay.
No attempt was made, by the Investigating Officer, to get
verified the place of occurrence and Coach S6, through FSL
officers on the same day or on the next day.
Subsequently, suitable reports of the FSL officers, came to
obtained in form of expert opinion.
The prosecution has changed their own story of throwing
inflammable liquid, on Coach from out side and then,
created a new story of pouring 140 liters petrol entering
into coach from sliding door, after cutting vestibule of
corridor.
Investigation, at different stage, by different Investigating
Officers, came to be made hazardously, in a routine
manner, as per the instructions, given to them by their
Superior Officers and other political persons.
Principle of identification of accused by minimum three
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witnesses, as applicable to riots cases should be applied as a
rule of caution.
There are material contradictionsomissions etc. in the
prosecution evidence.
As there is no sufficient material on record, to hold guilty
to any of the accused, all of them, should be acquitted, from
all the charges.
Ld. Advocates appearing for the accused persons, have also
drawn attention of this Court, to more than 100 decisions of
the Apex Court which will be dealt with, at appropriate
stages, in the later part of this judgment”.
In para [25] of the impugned judgment, the learned Sessions
Judge, framed 11 points for determination, which reads as under:
“[25] POINTS FOR DETERMINATION:
From the facts and evidence on record, the following points
have been arisen, for just determination.
1. Whether the prosecution proves beyond reasonable doubt
that the alleged incident was occurred on 2722002 at
about 7.45 a.m.?
2. Whether the prosecution further proves beyond
reasonable doubt that the alleged incident was occurred at
Godhra Railway Station, near ‘A’ Cabin (towards Vadodara),
at about 1 k.m. away from the platform?
3. Whether the prosecution further proves beyond
reasonable doubt that in all 59 persons, including females
and children died, out of which 58 expired on the spot, in
the Coach S6 itself, and more than 48 others, sustained
simple/grievous burn/other injuries during the alleged
incident?
4. Whether the prosecution further proves beyond
reasonable doubt that a mob consisting of more than 900
persons of Muslim community, attacked on the passengers
and karsevaks, with deadly weapons, like Ironpipes, Iron
bars, Swords, Dhariyas, Sticks, Guptis, Stones and thereby,
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passengers, to escape from the coaches, more particularly
from Coach S6, to save their lives?
5. Whether the prosecution further proves beyond
reasonable doubt that the members of the mob, by pelting
stones, acid bottles, bulbs, burning rags etc. caused injuries
to the passengers of Coach S6, S5, S7, S2 etc. and then,
throwing inflammable liquid like petrol etc. from the out
side and pouring petrol inside, set on fire the entire Coach
S6?
6. Whether the prosecution further proves beyond
reasonable doubt that the members of the mob, by
committing such illegal acts, caused damage to the tune of
Rs. 17,31,250/ to the Railway Properties and also to the
luggage of the passengers?
7. Whether the prosecution further proves beyond
reasonable doubt that for commission of such illegal acts,
conspiracy came to be hatched on the previous night on
26th February, 2002, amongst the conspirators as alleged?
8. Whether the prosecution further proves beyond
reasonable doubt that for commission of that illegal act, an
unlawful assembly came to be formed by the members of
the mob?
9. Whether the prosecution further proves beyond
reasonable doubt that the accused persons having with
deadly weapons with them, in public place, committed
breach of the Notification published under Section37(1) of
the Bombay Police Act?
10. Whether the prosecution further proves beyond
reasonable doubt that by committing such illegal acts, the
accused persons have made them liable for punishment, for
the offences punishable under Sections 143, 147, 148, 149,
302, 307, 323, 324, 325, 326, 332, 395, 397, 435, 186 and
188 read with 120B, 153A, 212 of the I.P. Code, Sections
141, 150, 151 and 152 of the Indian Railways Act, Sections
3 and 4 of the Prevention of Damages to Public Property
Act, and Section135(1) of the Bombay Police Act?
11. What order?”
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The findings on the above points are enumerated in para [26] of
the impugned judgment, which read as under:
“[26] FIJNDINGS :
My findings, on the above points, are
Point Relevant
No. Answer Para Page1. In the affirmative 43 91
2. In the affirmative 43 91
3. In the affirmative 47, 48 100, 115
4. In the affirmative 61 to 64 218 to 225
5. In the affirmative 62 to 83 221 to 317
6. In the affirmative 50 141
7. In the affirmative 84 319
8. In the affirmative 91 393
9. In the affirmative partly 93 420
10. In the affirmative partly 94 421 to 764
11. As per Final Order. 98 to 100 779 onwards
The learned trial Judge addressed himself to settled principles for
appreciation of evidence by considering 35 different decisions of
the Apex Court and the High Court of Gujarat and also considered
jurisdiction visited in the Court and inspection of the scene of
offence and surrounding area, as required.
Pursuant to National Level Programme for Ram Yagna at Ayodhya
organized by different Hindu organizations, thousands of Kar
Sevaks were visiting Ayodhya from various parts of the country
and even hundreds of Kar Sevaks and believers had gone to
Ayodhya and returned to their native places and in one of such
incidents, Kar Sevaks were returning by Sabarmati Express
running between Muzaffarnagar and Ahmedabad being Train
No.9166DN. By taking note of scheduled timings of arrival of
above train at Godhra Railway Station on the day of incident as it
was running late than the scheduled time, which was 2:55 a.m. on
27.02.2002 arrived at 7:45 a.m at Godhra Railway Station, the
learned Sessions Judge in paras 32, 33, 34 and 35 in detail
described engines, coaches, guard coach and drivers, guards,
Ticket Examiners, topography of railway station, platforms, tracks,
bridges and surrounding areas, including buildings and offices in
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the railway premises and other places of importance and named in
FIR and charge sheets and have bearing on crime investigated viz.
Signal Falia, Aman Guest House, Petrol Pump, Garage, A Cabin,
Ali Masjid, Ali ni Chawl, Fakiro ni Chawl, etc. That on the day of
incident railway staff on duty including Gujarat Railway Police
[GRP] and Railway Police Force [RPF] were taken note of along
with staff of fire brigade of Godhra Municipality reached at the
scene of incident with fire fighter and other administrative and
police officers including the District Collector and District
Superintendent of Police, Panchmahals at Godhra and visit of the
Hon’ble Chief Minister and Hon’ble Home Minister of the State of
Gujarat. In para [42] of the judgment noted about arrival timing
of Sabramati Train, etc., which reads as under:
“[42] ARRIVAL TIME ETC. OF SABARMATI EXPRESS
TRAIN:
As per schedule, the usual regular arrival time of Sabarmati
Express Train 9166DN from Ayodhya side to Ahmedabad,
at Godhra Railway Station was 2.55 a.m. in early morning
hours(mid night). However, on the date of incident,
admittedly, the said train was behind the schedule and had
come to Godhra Railway Station from Dahod side at about
7.40 a.m. As per the evidence of prosecution witnesses,
particularly Railway staff witnesses, the details about arrival
and departure timings of this train is as under;
7.40 a.m Arrival at Godhra Railway Station on platform
No.17.45 a.m. Departure for Vadodara
7.47 a.m. First chain pulling in Coach Nos: 83101, 5343,
51263 and 88238, when the train was on platform and just
started.
7.55 a.m. Stopped near “A” Cabin (Vadodara side),
approximately one k.m. away, from Godhra Railway Station
platform No.1, because of automatic break system, on
account of dropping of vacuum.”
Para [44] of the judgment refers to First Information Report under
Section 154 of Cr.P.C. and in the context of arguments advances
and various decisions with regard to delay in lodging FIR and its
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effect are discussed.
Para [46] is about Inquest Pachnama under Section 174 of the
Cr.P.C., total 58 persons died on the spot and shifted from
Railway Coaches to Railway Yard and to the hospital for autopsy
etc. and law in this regard laid down by the Apex Court with
regard to evidentiary value of inquest panchnama, decisions of the
Apex Court were relied on.
Para [47] is about injuries and cause of death, viz. 58 persons
expired on the spot in coach S/6 itself and more than 48 others
sustained simple and/or grievous burn and other injuries due to
the alleged incident and considering medical certificates in this
regard and testimonies of 16 doctors and identification of dead
bodies of 59 passengers, cause of death was shock due to
excessive burns as emerged from the record about receiving burn
injuries, 14 doctors / medical officers were examined and about
60 injured passengers / travelers whose injury certificates were
considered in the above context and evidentiary value of medical
opinion in the context of medical certificates and other papers of
medical treatment, reliance was placed on 8 decisions of the Apex
Court as well as Gujarat High Court. In addition to the above,
DNA profile reports, FSL reports were also considered including
29 queries raised by the Superintendent of Police and
investigating officer of SIT, Gandhinagar constituted by the Apex
Court and damages to coaches as assessed by the technicians of
Railways and another important aspect about Alarm Chain Pulling
System, in para 51it is observed as under:
“[51] ALARM CHAIN PULLING SYSTEM:
In the letter dtd; 1792005 (Exh. 1008) written by Section
Engineer
(C and W) Ahmedabad to the Dy.SP (WR), Vadodara, it has
been clearly mentioned that at the relevant time, in the
following numbers of Coaches of that train, there were two
type systems of chain pulling i.e. for pulling the chain from
inside the Coach, and to turn ACP Disk from out side of the
Coach, for stopping of the train, in case of emergency.
No. Coach No. No. Coach No.
1 4147/GS/WR 10 91217/CN/WR
2 88103/SLR/WR 11 92333/CN/WR
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3 91204/CN/WR 12 86253/CN/WR
4 91229/CN/WR 13 92297/GS/WR
5 91464/CN/WR 14 88238/GS/WR
6 89226/CN/WR 15 90238CN/WR
7 89465/CN/WR 16 91263/GS/WR
8 93498/CN/WR 17 5343/GS/WR
9 87206/CN/WR 18 83101/SLR/WR
In the context of celebrated principles of appreciation of evidence
in criminal cases, the learned Trial Judge considered 25 decisions
of the Apex Court and Gujarat High Court relied on by the learned
Special Public Prosecutor, 18 decisions relied on by various
defence counsels and even reference was also made to other 73
decisions of the Apex Court and Gujarat High Court.
The learned Trial Judge has also taken into consideration police
petrol party on duty on previous night deployed for security of
Sabarmati Express Train from Godhra to Dahod and back, canteen
hawkers and vendors at tea stalls on platforms at Godhra, slogans
shouted, tea breakfast by Kar Sevaks and quarrel which took place
with hawkers on the platforms and muslim ladies with whom Kar
Sevaks have misbehaved and their testimonies. Further, about
First Chain Pulling, stone pelting, members of unlawful assembly,
weapons, slogans shouted by them, etc. were considered and for
the sake of convenience para 59 of First Chain Pulling and para 62
Second Chain Pulling whereby the train had stopped near A Cabin
are reproduced herein below:
“[59] FIRST CHAIN PULLING
The ComplainantEngine Driver Rajendra Rao Jadav (PW
228), in his complaint (Exh.1190) and in his deposition
(Exh.1189) has clearly stated that after receiving signal, he
started the train at 7.45 a.m., but hardly it proceeded two
or three coaches further, from the platform, it stopped
because of chain pulling. Then, he immediately informed
the Guard.
PW126 H.F.Meena, Asst. Station Master, PW127
Rajendraprasad M.Meena, Asst. Station Master ‘A’ Cabin,
PW128 A.G.Shrma Asst. Station Master ‘A’ Cabin, PW131
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M.R.Panchori, Asst. Driver, PW135 S.P.Varma Guard, and
PW136 S.M.Raniwal, Ticket Examiner have also deposed
about this first chain pulling.
Most of the passengers and karsevaks have also deposed in
their depositions about this first chain pulling.
Thus, from oral and documentary evidence, it is crystal
clear that on the day of incident, the first chain pulling, in
this train came to be made at 7.47 a.m. in the Coach Nos.
83101, 5343, 51263 and 88238.
Undisputedly, after the chain pulling, the Guard Mr.Varma
and Asst. Driver Mr. Panchori reached near those coaches
and ACP came to be reset by them immediately.
[62] SECOND CHAIN PULLINGSTOPPAGE NEAR `A’
CABIN
Admittedly, the train in question was an express train and
after reset of first chain pulling near platform No.1, the
Asst. Station Master who was on duty at ‘A’ Cabin, again
gave signal and the train restarted for Vadodara.
Undisputedly, there was no stoppage near ‘A’ Cabin nor any
reason for Driver to stop the train near ‘A’ Cabin. Therefore,
the questions are:
1: Whether this train was stopped near ‘A’ Cabin or not?
2: Whether it was stopped by Driver or Guard?
3: Whether it was, stopped due to any mechanical defect in
engine?
4: Whether it was stopped because of non availability of power
supply?
5: Whether it was stopped because of chain pulling from inside
of any coaches?
6: Whether it was stopped because of turning of Disk kept
outside the coaches?
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7: Whether it was stopped because of leakage of HosePipe and
dropping of vacuum?
ld. Advocates for the defence, in the crossexamination of
Engine Driver and Guard, have not asked question about
any mechanical defect in engine, non availability of power,
etc. Thus, from the oral and documentary evidence, as well
as damage found on the hosepipe, it can be said that
there was no stoppage near ‘A’ Cabin, lines to proceed
towards Vadodara were O.K., the Driver themselves did not
stop the train, there was no mechanical defect in engine,
pulling of chain was not made by any passengers from
inside of any coaches, but the said train stopped because
of dropping of vacuum, as some one turned outside
Vacuum Disk or cut the HosePipe.
Paras [63] and [64] are about stone pelting near A cabin and
presence of members of violent mob with weapons near railway
tracks.
Para [65] is about panchnama of place of incident.
In Para [66] Panchnama of coach S/6, which was drawn on
28.02.2002 during 17:45 to 19:35 hours at Railway Track in
Carriage and Wagon Yard, Godhra, details about doors, windows,
compartments, toilets, damages to the coach as a whole and
description of seized articles was made, which was subsequently
dispatched to FSL by special messenger on 02.03.2002 and
received FLS on the same day, which was examined by Mr. D.P.
Talati [PW. 227], Assistant Director, FSL, Ahmedabad and report
of FSL was received on 20.03.2002 [Exh.1173].
Para [67] is with regard to Structure Materials of Coach for
which reliance was placed on communication between
investigating officer and the then Director General / Carriage so as
to focus on the fire properties of different materials used at
various places of the coach. That rescue operation undertaken by
the fire fighters by the employees of fire brigade, Godhra and
other such things find place in para [68].
Para [69] is with regard to cause of fire as to how and why
the fire had taken place and also possibility of short circuit or any
accidental fire in the coach as submitted by the learned counsel
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for the defence. Reliance is placed on the decision in the case of
Union of India Vs. Nilkanth Tulshidas Bhatiya and ors. reported in
2006(2) GLR 952 and record available with the Railways so
produced during the trial to show the entries in official records
maintained by the guard, testimonies of passengers, Kar Sevaks,
engine driver, ticket examiner and guard, messages conveyed by
police personnel on duty, FSL report of articles seized from S/6
coach as well as from adjoining place and emitting smoke towards
rear end of the coach i.e. Godhra sideseat No.72.
In paras [70] to [72] upon considering Vestibule of Coaches
S5, S6 & S7 and their condition, it was concluded that
vestibules of both the sides of Coach S/6 were of rubber material
and after cutting the canvas vestibule situated between coach S6
and S7 by sharp cutting instrument. It was also established that
the cause of fire was not due to short circuit or any accident.
In para [73] the learned trial Judge has placed heavy
reliance on injury sustained by the accused – Jabir Binyamin
Behra accused No.2 in Sessions Case No.72/2009 and deposition
of Juber Mohmad Yusuf Mamji PW180 about medical treatment
given to the above accused at 9:30 a.m on 27.02.2002 along with
another circumstance viz. loot of ornaments para [74] of the
judgment is supported by Pravinbhai Amthalal Patel PW
170/Exh.873 and other panch witnesses viz. Rajubhai
Shankarbhai Thakor PW45/Exh.380, Visandas Tarachand
Samiyani PW38/Exh.290, etc. Likewise, other panchas about
recovery of the above gold chain and finally conviction statement
of the above accused along with evidence of Pannda PW202 and
Suleman PW193 about alleged loot of articles.
Para [75] is with regard to Kalabhai Petrol Pump
Employees. Ranjitsinh Jodhabhai Patel PW224 and Prabhatsinh
Gulabsinh Patel PW231/Exh.1206 about purchase of 140 liters of
lose petrol by accused persons as a part of conspiracy is
considered in detail and reasons for accepting the case of
prosecution are summarized as under:
Kalabhai (Hakimiya) petrol pump and Patel petrol pump
which are in Signal Faliya area, were sealed by the Supply
Department immediately after the incident.
Owners of both the petrol pumps belong to Muslim
Ghanchi Community.
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Statement dtd; 1042002, under Section161 of
Cri.Pro.Code came to be recorded at the instance of owner
of the petrol pump.
In the articles seized from place of occurrence and Coach S
6, presence of petrol residues were noticed by the FSL.
As per FSL Reports, inflammable liquid in huge quantity
came to be used to set on fire the Coach.
In nearby area, persons of other community are not
residing.
No allegations have been made by the prosecution, against
owner or employees of Patel petrol pump which was also
owned by Muslim Ghanchi Community person.
Both these witnesses had no enmity either with owner of
Petrol Pump or any of the accused persons.
Story of payment of Rs. 50,000/ to each of this witness
and that too, by an Investigating Officer is highly
improbable.
No prudent man would dare to take such a great risk of
giving false evidence, against huge number of accused
belong to muslim community without thinking about his
entire future life.
Nothing on record to show that any relatives of witness
Ranjit Jodhabhai Patel were earlier arrested in any
communal cases.
There are no material contradictions in the evidence of
these two witnesses.
Prevailing practice/system of selling loose petrol/diesel
which is still continued, can be inferred from the
photographs (Exh.1865 and 1867) produced by the defence
themselves wherein, it can be seen that deliveryman of this
petrol pump is selling the petrol in loose(white carboy). The
date and time of these photographs are – 1.3.2010
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Under the above circumstances, the evidence on oath given
by these prosecution witnesses in such serious matter,
cannot be discarded solely on the ground that they are
planted witnesses, as they agreed to depose against the
accused persons accepting Rs.50,000/ by each of them
from the Investigating Officer Mr. Noel Parmar. [Kalabhai
Petrol Pump]Para [76] is about Three Wheelers Tempo GJQ8074 used
for purchasing petrol in carboys from Kalabhai Petrol Pump and
was taken to Aman Guest House and thereafter on the next day at
the scene of offence and and demonstration panchnama drawn to
show the method of usage of above Three Wheelers Tempo in
carrying 7 carboys of 20 liters each on the day of incident.
In para [77] Testimonial Appraisal of Ajay Kanubhai
Bariya, eye witness of the main part of incident and the above
witness is considered as key eye witness of the prosecution. Para
[77] reads as under:
“[77] TESTIMONIAL APPRAISAL OF AJAY KANUBHAI
BARIYA[I] As per prosecution case, Ajay Kanubhai Bariya is the eye
witness of the main part of the incident. This witness has
been crossexamined at length by five different senior Ld.
Advocates for defence and his deposition which runs into
103 pages was recorded on 3132010, 142010, 542010
and 642010.
As the line of defence was not clear, the questions and
suggestions asked by different Ld. Advocates in cross
examinations are totally contradictory to each other, in
respect of one and the same fact. For example, about his
presence, the following suggestions were asked:
“He was not present at the Railway Station, because he had
gone up to Piplod from Godhra in the Daheradoon Train for
selling tea.
He was at home, and he could not wake up early on that
day, as he had come late on previous night i.e. on 26th after
attending a marriage.
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He was busy on that day i.e. 27th in the early morning
between 9.00 a.m. to 11.00 a.m., in repairing the roof of
neighbor Dhantiya Kaka.
He was at Railway Station on platform No.1, at particular
place, at the time of quarrel took place between Hawkers
and Karsevaks.
He had seen one Sikander Shaikh of FakiroNiChawl, at the
time of incident and gave his name as assailant.”
[II] This Court is of the opinion that this witness as per say
of prosecution is one of the key eyewitnesses and
appreciation of his evidence by the Court, is very much
important for both, prosecution as well as defence
therefore, much care is required for scrutiny of the evidence
of this key eyewitness. As per settled principles, while
appreciating evidence of this witness, the following points
are required to be kept in mind:
(i) Who is this key eyewitness Ajay Kanubhai
Bariya?
(ii) What he was doing at the relevant time?
(iii) Whether he was present on the platform?
(iv) Whether he had opportunity to witness the
incident?
(v) Whether he was in a position to identify the
assailants?
(vi) Whether he has any enmity with any of the
assailants?
(vii) Whether he has any other reason, to depose
falsely on oath, against any of the accused in such
serious crime?
(viii) Why he has stuck to his version since 2002 to
2010?
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(ix) Whether any procedural defects i.e. delay in
recording statement under Section161 seriously
damages to his version on oath?
(x) What are the contradictions which may be
termed as major or minor?
(xi) Whether the story put forward by the defence,
for giving false evidence, against accused by this
witness, can be accepted by the Court of law, in such
serious matter, as ‘probable’?
[III] Having gone through the entire deposition (which runs
into 103 pages) carefully, it can be said that the following
facts are not in much disputes:
(1) Ajay Kanubhai Bariya is by Caste Hindu.
(2) At the time of deposition in the year 2010, his
age was 26, means in the year 2002, he was hardly
the age of 18 years.
(3) He was residing with his family in the house of
one Malabhai, in Bhathiji Mohalla, situated in Signal
Faliya, Godhra.
(4) Hardly four or five Hindu Families were there,
in Bhathiji Mohalla and rest of the Signal Faliya was
of Muslim Community.
(5) He has studied up to standard 8th.
(6) He was doing labour work, by selling tea as
hawker to passengers on platform or in running train,
on commission basis i.e. 50 paisa per cup of tea.
(7) At the relevant time, he was working with one
Mehboob Popa whose TeaCabin was situated outside
the Railway premises.
(8) As he was doing this type of work for long
back, and was residing in Signal Faliya, was well
aware about the position of Railway platforms, Tea
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Masjid, Railway Garnala (under bridge), Compound
wall, Fencing, ‘A’ Cabin and the surrounding area
thereof.
(9) He had no enmity either with Malabhai, owner
of their house, or Mehboob Popa, with whom he was
working, or any of the accused persons.
(10) No injury was caused to him or his family
members/relatives or damage to their house/property
by the accused during the incident.
(11) He is not connected with any political party,
even at local level.
(12) After incident dtd; 2722002, he himself had
not made any efforts to lodge complain or to disclose
information which he was possessing to any police
officials till 272002.
(13) He and his family members had left Signal
Faliya after the incident and ultimately, vacated the
rented house in the year 2006. The owner Malabhai
paid Rs. 10,000/ to his family for vacating this
rented house.
(14) For the first time, he was called by police to
Godhra Railway Station on 272002.
(15) Then, he was also called on the next day i.e. on
372002.
(16) Inquiry was made by Investigating Officer and
two other Senior Officers on both these days asking
him about the incident and his own involvement
therein.
(17) No statement under Section161 was recorded
either on 272002 or 372002, but as per say of this
witness, only rough note was being made by police.
(18) On 472002 his first statement under Section
161 came to be recorded at Godhra Railway Police
Station.
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(19) On 572002, his further statement was
recorded at Godhra Railway Police Station.
(20) In the first statement dtd; 472002, the name
of assailants which were given by him were short,
incomplete or nicknames.
(21) In the Further Statement dtd; 572002, he had
furnished full names of assailants.
(22) On 972002, his statement under Section164
of the Cr.Pro.Code came to be recorded by Railway
Magistrate, Camp at Anand.
(23) Then, on 382002, 692002 and 25112002
his father statements under Section161 came to be
recorded.
(24) Thereafter, he had gone to the office of
Executive Magistrate for T.I. Parade held on the
following dates: 25112002, 332003, 772003, 31
72004, 1682004, 192004, 19112004, 2412
2004,372005, 182005, 2022006,
(25) On 3132010, during his examinationinchief,
he has identified in all 18 accused persons as
assailants.
(26) He has admitted that there is compound wall,
in some part between Railway premises and Signal
Faliya Road and then, iron fencing up to Garnala
(under bridge).
(27) He has admitted that there is slope behind “A’
Cabin and a dirty water drainage (Neek) after that
slope.
(28) Police protection of two police guards has been
provided to this witness since July, 2002.
[IV] Now, the submissions have been made by the Ld.
Advocates appearing for the defence, to discard the entire
evidence of this witness mainly on the following grounds:
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(i) No attempt was made by this witness
voluntarily to lodge complain or disclose the facts to
any police officials up to 272002.
(ii) There is delay in recording his statement under
Section161 Cr.PC.
(iii) Though, this witness was called on 272002
and 372002, no statement under Section161 Cr.PC
came to be recorded during those two days period.
(iv) Statement under Section164 Cr.PC came to be
recorded, at the instance of the Investigating Agency.
(v) In the first statement dt; 472002, only short
and incomplete names of assailants were given and
on the next day i.e. on 572002, full names were
given after the details furnished by police to him.
(vi) He has intentionally avoided to identify the
assailant Sikander Shaikh during T.I. Parade.
(vii) There are material contradictions in his
evidence.
(viii) Financial supports have been provided to this
witness by the Investigating Officer Mr. Noel Parmar,
in form of cash, two wheeler vehicle, service in a
private company etc.[V] Therefore, the question is as to whether there is any
substance in the aforesaid grounds and if yes, then the said
grounds can be said to be sufficient to discard the evidence
of this witness in its entirety.
As regards the first ground of non discloser of facts up to 2
72002, it is the prosecution case that threats were given to
this witness by the accused persons and as per say of
defence, the witness himself had apprehension of his arrest
by police for involvement in this offence. Admittedly, the
witness was hardly 18 years old, he was residing in entirely
muslim area and also doing labour at Godhra Railway
Station where most of hawkers belonged to muslim
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community, he was well aware about the attack on train
and how and in which manner passengers killed. In the
circumstances, when there was no personal injury or
damage to the property of this witness, one cannot expect
from him immediate discloser of facts. The defence raised
by the accused, if accepted that he himself had an
apprehension of his arrest, it also goes against the accused,
because impliedly, they accept the presence of witness near
Aman Guest House and ‘A’ Cabin.
So far as delay in recording statement under Section 161
Cr.PC is concerned, it is well settled proposition of law that
this ground alone, can never be said sufficient to discard the
evidence of witness in its entirety, but at the most, the
Court should scrutinize such evidence more carefully. As
regards statement under Section164, assuming for the sake
of argument that the statement of this witness under
Section164 Cr.PC came to be recorded at the instance of
the Investigating Agency, in my view, it would make no
difference. On the contrary, it is clear that while recording
statement of witness under Section164, the Magistrate is
required to inquire as to whether his statement under
Section161 was earlier recorded or not, more particularly
when the witness concerned, directly approached the
Magistrate. In the circumstances, even if the Investigation
Agency had taken interest in recording of statement under
Section164 in my view, it would not be beneficial in any
way to the accused. Further, in the case of N. Somashekar
(Dead) by LRS Vs. State of Karnataka reported in AIR 2005
SC 1510, the Hon’ble Supreme Court has held that; ” Merely
because the statement of witnesses is recorded under
Section164 of the CrPC, that does not automatically dilute
the worth of his evidence.”
As regards incomplete names in first statement dtd; 47
2002 and then, giving of full names, addresses in second
statement dtd; 572002 also, in my view, this fact also goes
against the accused. If this witness had been planted/got up
witness and the Investigating Agency itself, well aware
about the full names and role played by each one, who
prevented the Investigating Officer in mentioning full
names, address with details in the first statement dtd; 47
2002 more particularly when this witness was interrogated
for two days i.e. in 272002 and 372002. Further, this
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witness even after his statement dtd; 572002, again had
given short names in his statement dtd; 972002 before the
Ld. Magistrate. Not only that even in his examinationin
chief though he was well aware about the full name of his
owner, has made reference by short name as “Malabhai”.
Usually, it is our practice to make reference in normal
course by short name or, nickname. Even otherwise,
assuming that he was not aware about full names, even
though this point looses its importance, as he had identified
the assailants in TI Parade and before the Court also.
So far as identification of assailant Sikander Shaikh is
concerned, it may be noted that no where in the first two
statements dtd; 472002 and 57 2002 and even in
statement dtd; 972002 before Ld. Magistrate, there was
any mention of this Sikander Shaikh about his presence on
platform, near Aman Guest House or near ‘A’ Cabin or train,
nor any mention about role played by this Sikander Shaikh.
Under the circumstances, the explanation furnished by this
witness that he had seen him from his back only and he was
not sure and therefore, could not identify him, cannot be
said to be improbable or false explanation.
With regard to financial help to this witness by the
Investigating Officer Mr. Noel Parmar in form of Cash, two
wheeler vehicle or service in private company, nothing has
been produced to substantiate these allegations therefore,
such vague allegations cannot be accepted as sufficient to
throw overboard the evidence of witness.
So far as contradictions are concerned, I have minutely
perused the entire deposition and statement dtd; 972002
(Exh.1233) recorded under Section164 Cr.PC, and I am of
the opinion that there are no contradictions particularly
about material fact like his presence on platform, near
Aman Guest House and Cycle Store, in three wheeler
Tempo and near ‘A’ Cabin and also about the role played by
the assailants in commission of crime. So far as other minor
contradictions, it bound to be in such lengthy 103 pages
deposition and cross made by different advocates on
different points by forming questions in different manner
and mode.
However, in any case, no prudent man, after careful reading
of his entire evidence, would be in a position to say that this
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witness was not present at all and he did not witness the
incident as alleged.”
In para [78] evidence of another key witness [hawker] Sikander
Mohmmad Siddiq Shaikh is analyzed. In para [79] Evaluation of
Evidence of Prosecution Witnesses HawkerBhikhabhai
Harmanbhai Bariya PW206/Exh.1060 is made.
“[78] ANALYSIS OF EVIDENCE OF KEY WITNESS
[HAWKER] SIKANDER MOHMMAD SIDDIQ SHAIKH[I] The prosecution to establish the facts of alleged attack
on the train by the members of the mob and set on fire the
Coach S6, has also examined one another eyewitness
Sikander Mohmmad Shaikh (PW237/ Exh.1252) who was
residing just near the place of incident.
Admittedly, this witness Sikander Shaikh originally
belonged to Indore, Rajasthan, but his family was shifted to
Godhra, when he was 10 years of age.
Undisputedly, this witness, his mother, brother and sister, at
the relevant time were residing in FakiroNiChawl, which is
just near the Ali Masjid and ‘A’ Cabin.
This witness has deposed on oath that prior to the incident,
he was doing labour as hawker with one Bilal Badam at
Godhra Railway Station. This fact has not been seriously
challenged, on the contrary, some questions/ suggestions
were asked in his crossexamination about the quarrel in
pantrycar of the train and registration of offence against
him, which has been denied by the witness. Thus, from the
evidence, it appears that prior to the incident, this witness
was working as hawker with Bilal Badam at Godhra
Railway Station.
As regards his presence, it is not the case of defence that at
the time of incident, this witness was not at his home. As
discussed earlier, a mob of more than 1000 persons
gathered near ‘A’ Cabin, they were shouting slogans,
announcement was being made on loud speaker about the
attack etc. from Ali Masjid also. Under these circumstances,
can it be believed that despite of such situation, he could
not awake or did not come out of his home? Thus, from thePage 428 of 988
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evidence and circumstances, the presence of this witness at
the time of incident, near ‘A’ Cabin is also clearly
established.
[II] Now, the question is as to whether this PW237 Mr.
Shaikh was in fact, witness of the incident or he was
assailant. It may be noted that none of the prosecution
witnesses except Ajay Kanubhai Bariya, in their statements
disclosed name of Sikander. Even Ajay K. Bariya had also
not stated name of ‘Sikander’ in his first two statements dtd;
472002 and 572002 and also in statement dtd; 972002
recorded by the Magistrate under Section164 Cr.P.Code.
Thus, it can be said that even Ajay Kanubhai Bariya was also
not sure about assailant ‘Sikander’. In the T.I. Parade also,
this witness Ajay Kanubhai Bariya did not identify this
witness Sikander Shaikh, as the same ‘Sikander’. Thus, in
absence of any other corroborative evidence, it would not
be safe to believe that this witness PW237 Sikander Shaikh
is the same person whose reference has been made by the
witness Ajay Kanubhai Bariya in his statement dtd; 38
2002 as assailant. In other wards, presence of this PW237
Mr. Shaikh as witness, at the place of incident is clearly
established.
[III] Then, the next question is, as to whether he had an
opportunity to witness the incident and to identify any of
the assailants or not. Now, the crossexamination of this
witness itself, suggests that FakiroNiChawl where he was
residing with his family, is just behind the ‘A’ Cabin and
near the Ali Masjid. It may be mentioned that as per timings
disclosed by the Railway staff, this train started from
platform, after first chain pulling at 7.55 a.m. It means, it
must be reached near ‘A’ Cabin at about 7.58 or 7.59 a.m.
Therefore, the time approximately 8.00 a.m. mentioned in
the statement by this witness cannot be said to be incorrect.
This witness has clarified that hearing shouts, he firstly
rushed towards Ali Masjid, instead of going directly towards
Railway track. In my view, this explanation cannot be said
to be improbable.
[IV] In the, crossexamination of this witness, much has
been asked by the defence, about financial help provided by
Mr. Noel Parmar and the State Government to this witness
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Godhra till the date. If that was the position, his statement
could have been recorded much earlier by the police. Except
the vague allegations, nothing has been brought on record
to substantiate these allegations of financial help to this
witness by the Investigating Officer Mr. Noel Parmar.
[V] As regards reference made by this witness about Maulvi
Yakub Punjabi in his statements before police and Ld.
Magistrate, it may be noted that as per his say, he heard the
announcement from loud speaker and the said voice was of
Maulvi Yakub Panjabi and when he was returning from ‘A’
Cabin, he saw one person on the terrace of the Ali Masjid
and as per his say, he was Maulvi Yakub Panjabi. That
means, this witness had no opportunity to see that person
closely. In the circumstances, mistake might have been
occurred or on the basis of his earlier knowledge and
experience, he might have believed that the person who was
standing on the terrace was Maulvi Yakub Pinjabi. However,
in any case, merely on this ground alone, his evidence on
oath, cannot be discarded in its entirety, but at the most
careful scrutiny is required.
[VI] So far as whereabouts of this witness, in paragraph31
of the crossexamination, it has been asked by the
Ld.Advocate for the defence that on the day of ‘Raksha
Babdhan’ Police Officer Karim Polra and Police Informer
Kalu Ahmad, came Surat and brought this witness, in a Jeep
from Surat to Vadodara, which suggestion has been denied
by the witness. Thus, how the Investigating Officer could
trace out this witness could be inferred from this
suggestion.
[VII] Nothing on record to show that this witness had any
enmity with any of the accused persons or any other valid
reason to depose against them. The contradiction or
omissions are not in material aspect. Mentioning of age ’19’
years or ’25’ years or address of Godhra in statements,
makes no deference in accepting substantial part of his
evidence on oath. In view of settled legal position, the delay
in recording statement under Section161 Cr.P.C. cannot be
said to be valid ground to discard the evidence of this
witness, more particularly, when the delay was not
intentional and the Investigating Agency was not aware
about the whereabouts of this witness.
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Further, there is difference between, to search out a
genuine/truthful witness, and to create a bogus witness. In
any case, as mentioned earlier, where the presence of this
witness is clearly established, it can never be accepted that
this witness is a bogus witness, created by the Investigating
Agency subsequently”.
Collectively it is concluded that court was not in a position
to discard their evidence and they were found as reliable, credible
and trustworthy.
In para [81] confession by Jabir Binyamin Behra under
Section 164 of the Cr.P.C. is considered in the context of
contention raised by learned counsel for the defence about its
truthfulness, etc. and by relying on provisions of Section 164 of
the Cr.P.C., paras 34, 35 and 36 of Criminal Manual and various
decisions of the Apex Court, summary of judgments was made in
Clause [XI] and in the context of grounds raised by learned
counsel appearing for the defence in Clause [XII] it was held that
the confessional statement looking to the contents there was
voluntarily, true and they are reliable. Clauses [XI] and [XII]
reads as under:
“[XI] Thus, the law relating to confessional statement may
be summarized as under:
Under the general law of the land as reflected in the Indian
Evidence Act, no confession made to police officer can be
proved against an accused.
”Confessions” which is terminology used in criminal law is
a species of “admissions” as defined in Section17 of the
Indian Evidence Act.
An admission is a statement “oral or documentary”, which
enables the Court to draw an inference as to any fact in
issue or relevant fact.
Every confession must necessarily be an admission, but
every admission does not necessarily amount to a
confession.
While Sections17 to 23 deal with admissions, the law as to
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confessions, is embodied in Sections24 to 30 of the
Evidence Act.
Section25 bars proof of a confession made to a police
officer.
Section26 goes a step further and prohibits proof of
confession made by any person while he is in the custody of
a police officer, unless it be made in the immediate presence
of a magistrate.
Section24 lays down the obvious rule that a confession
made under any inducement, threat or promise becomes
irrelevant in a Criminal Proceedings.
Such inducement, threat or promise need not be proved to
the hilt.
If it appears to the Court that the making of the confession
was caused by any inducement, threat or promise
proceeding from a person in authorities, the confession is
liable to be excluded from evidence.
The expression ‘appears’ connotes that the Court need not
go to the extent of holding that the treat etc has fact been
proved.
If the facts and circumstances emerging from the evidence
adduced make it reasonably probable that the confession
could be the result of threat, inducement or pressure, the
Court will refrain from acting on such confession, even if, it
be a confession made to a Magistrate or a person other than
police officer.
Confessions leading to discovery of fact which is dealt with
under Section27, is an exception to the rule of exclusion of
confession made by an accused in the custody of a police
officer.
Consideration of a proved confession, against the person
making it, as well as the Coaccused is provided for by
Section30.
Confessions are considered highly reliable because no
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rational person would make admission against his interest
unless prompted by his conscience to tell the truth.
Deliberate and voluntary confessions of guilt, if clearly
proved are among the most effectual proofs in law.
However, before relying upon a confession, the Court must
be satisfied that it was freely and voluntarily made.
A confession by hope or promise of advantage, reward or
immunity or by force or by fear induced by violence or
threats of violence cannot constitute evidence against the
maker of confession.
The Confession should have been made with full
knowledge of the nature and consequences of the
confession.
If any reasonable doubt is entertained by the Court that
these ingredients are not satisfied, the Court should eschew
the confession from consideration.
So also, the authority regarding the confession, be it a
Magistrate or some other statutory functionary at the Pre
trial stage, must address himself to the issue whether the
accused has come forward to make the confession in an
atmosphere free from fear, duress or hope of some
advantage or reward induced by the person in authority.
Recognizing the stark reality of the accused being
enveloped in a state of fear and panic, anxiety and despair
while in police custody, the Indian Evidence Act has
excluded the admissibility of a confession make to the
police officer.
Section164 of Cri.Pro.Code, is a salutary provision which
lays dawn certain precautionary rules to be fallowed by the
Magistrate recording a confession so as to ensure the
volunteers of the confession and the accused being placed in
a situation free from threat or influence of the police.
[XII] Ld. Advocates appearing for the accused have raised
mainly the following six grounds:
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[1] On 422003, when the accused was produced before
the Ld. Chief Judicial Magistrate Godhra, he was not
informed by the Ld. Magistrate that he was ‘chief Judicial
Magistrate.’[2] On 422003, the Ld. Judicial Magistrate had not asked
the accused as to since how long, he was in police custody.
[3] on 422003, the Ld. Chief Judicial Magistrate had not
informed the accused that he was not bound to make
confessional statement.
[4] On 422003, the Ld. Chief Judicial Magistrate had also
not inquired as to whether any confessional statement was
made before the police or as to whether any videography of
the same during police custody was done.
[5] On 422003, the Ld. Chief Judicial Magistrate while
sending back the accused in judicial custody, wrote a letter
(Yadi) to central Jail, Vadodara instructing to hand over the
custody of the accused to Mr. S.B.Patel, Police Inspector,
Railway to produce him before the Court on 522003 at
11.00 a.m. Not only that copy of that letter (Yadi) was also
forwarded to the Dy.SP, (WR), Vadodara for information.
[6] On 522003, during 5.00 a.m. to 6.00 p.m., copy of the
confessional statement was obtained by the Investigation
Officer.
First Ground: As regards the first ground, it may be noted
that the accused Jabir Binyamin Behra is a habitual offender
and in past, he was involved in many theft/loot cases, his
name was already disclosed in the First chargesheet but he
was remained absconding for a period of about one year,
after arrest he was on police remand, produced before Ld.
Magistrate, Railway, Dahod Camp and then produced in
open Court of Ld. Chief Judicial Magistrate on 42 2003 and
522003 with full police protection and the Court
compound was full of not only by the persons belonged to
muslim community, and advocates, but the media persons
and other general public . Not only that both times, at the
time of preliminary inquiry, and recording of statement, the
entire procedure came to be conducted in open Court by the
Ld.Chief Judicial Magistrate sitting on Dais wearing
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Uniform prescribed in the Manual therefore, how it can be
believed or accepted by this Court of Session that the
accused was not aware about the position or status of the
person who recorded his statement. Further, the accused
himself has not raised such dispute in his Further Statement
or he has not stated that he believed the person who
recorded his statement to be a Priest of a Church or a
Maulvi of a Masjid. Therefore, in my view there is no
substance in this contention. Even otherwise, the position of
law is very much clear in this regard and for that reference
may be made to the decision in the case of State of Tamil
Nadu Vs.Kutty@ Laxmi Narsinhan reported in AIR 2001 SC
2778, wherein the Hon’ble Supreme Court has held that:
“A very frail point has been raised that the Magistrate
did not inform the accused at the initial stage that he
was a Magistrate. Record shows that the accused was
well aware that he was in the Court of Magistrate. On
perusal of record, there is no scope for any contention
that accused was unaware that the person who
recorded the confession was a Magistrate.”
Second Ground: So far as the second ground, question does
arise to ask such question, as the accused was not in police
custody when he was produced first time on 422003
before the Ld. Chief Judicial Magistrate, because he was in
judicial custody since 291 2003.
Third Ground: As regards third ground, there is specific
mention in the endorsement made below the confessional
statement that:
“it was explained to the accused that he was not
bound to make confession.”
Even otherwise, questions with regard to voluntariness were
asked on both the days, i.e. 422003 and 522003, not
only that but time of 24 hours was also given for reflection
which shows that it was clearly conveyed to the accused
before recording his confessional statement that it was not
compulsory for him to make confession and he was free in
this regard, either to make confession or not. Therefore, this
Court is of the firm opinion that this ground is not available
to the accused.
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Fourth Ground: Admittedly, no such question with regard to
confession before police or videography was asked by the
Ld. Chief Judicial Magistrate, but looking to the facts
situation prevailing at the time of year2003, and relevant
provisions of Evidence Act and the Criminal Manual, asking
of such question was not mandatory and in any case, it
cannot be termed as ‘fatal’ to the confessional statement
which is otherwise legal and valid.
Fifth Ground: Undisputedly, the accused Jabir Binyamin
Behra was in Judicial custody since 2912003, authorised
by Railway Magistrate and kept in Central Jail, Vadodara.
Admittedly, an application for getting recorded statement
under Section164 Cr.P.C. was given by the Investigating
Officer. It is not in dispute that 24 hours time for reflection
was given to the accused and during this period, he was in
judicial custody i.e. in Central Jail, Vadodara. In the
circumstance, merely because he was produced by jail
authority through P.I.Mr. S.B.Patel, Western Railway,
Vadodara, as per the Yadi of the Court, it can never be
presumed that the confessional statement was not
voluntary. It may be noted that no complain was made on
522003, before Ld. Chief Judicial Magistrate in this
regard. Further, neither on 432002 nor on 522003, Mr.
S.B.Patel was allowed to remain present in the Court room
at the time of inquiry or recording statement. One another
important aspect is that the matter was sensitive and for
maintaining law and order, not only Mr. S.B.Patel was
possessing custody, but many other police officials were
there during the travelling and production before the Court.
Therefore, in absence of any material, it cannot be
presumed that the accused was pressurised by Mr. S.B. Patel
for confessional statement.
Sixth Ground: As regards obtaining copy of the confessional
statement by the Investigating Officer, in my view, no
discussion is required at all in this regard, more particularly
at the time of dealing with the genuineness of confessional
statement, because it has no relevancy at all, as the copy
came to be obtained after completion of entire procedure of
recording confession in open Court.
Under there circumstance, this Court is of the firm opinion
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that none of the above mentioned grounds are available to
the accused persons and it is crystal clear that no breach
was committed of any mandatory provisions or guidelines
by the Ld. Chief Judicial Magistrate, Godhra at the time of
either preliminary inquiry or recording confessional
statement. In other wards, the confessional statement,
looking to the contents therein, can definitely said to be
voluntary and true.
In para [84], theory of conspiracy was considered
threadbare by learned trial Judge by adverting to the law of
conspiracy, its definition, essential feature and prove by taking
recourse to the decision by relying on the learned Special Public
Prosecutor as well as learned counsel for the defence in clause [V]
following points were taken into consideration :
“[V] Under the above circumstances, to make the issue of
conspiracy narrow, the following points, are required to be
taken into consideration:
Point1 Whether First chain pulling was done? If yes, by
whom?
Point2 Whether stone pelting came to be done? If yes, by
whom?
Point3 Whether Second chain pulling came to be done? If
yes, by whom?
Point4 Whether there was any mob? If yes, of which
community?
Point5 Whether Second time, stone pelting near ‘A’ Cabin
came to be done? If yes, by whom?
Point6 Whether the members of mob had any weapons? If
yes, the same were used or not?
Point7 Whether the members of the mob were shouting
slogans or not?
Point8 Whether announcement from Ali Masjid on loud
speaker
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not?
Point9 Whether window shutters etc. came to be broken? If
yes, by whom?
Point10 Whether damaged to almost all the Coaches more
particularly window glasses, frames and shutters came to be
done? If yes, by whom?
Point11 Whether acid bottlesbulbs, burningrags etc. were
thrown from outside? If yes, by whom?
Point12 Whether vestibule of between two Coaches S6
and S7
came to be cut? If yes, by whom?
Point13 Whether sliding door of Coach S6, (eastern side
towards Godhra) came to be opened? If yes, by whom?
Point14 Whether the EastSouth corner door of Coach S6
(Southern side door towards Godhra) came to be opened? If
yes, by whom?
Point15 Whether any of the assailants came from onside to
offside of the train? If yes, how and when?
Point16 Whether the cause of fire was short circuit or in
any way, it was an accidental?
Point17 Whether there was any damage due to fire in
Coach No.S2 and it was also accidental or due to short
circuit?
Point18 Whether the fire originated in Coach S6 on front
side (near Seat No 1 to 10), in middle portion (Seat No. 31
to 40) or on rear side (Seat No. 61 to 72)?
Point19 Whether any inflammable liquid came to be used
for setting on fire Coach No. S6? If yes, whether it was
petrol, diesel or kerosene? And, in how much quantity, half
litre, litre or more?
Point20 Whether residues of petrol was found in the
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passengers, seized from off side of the train? If yes, how
why?
Point21 Whether the petrol in loose form came to be
purchased? If yes, by whom from where, in how much
quantity, and where the same was stored or kept?
Point22 Whether the petrol pump situated in Signal Faliya
came to be sealed on the next day by Supply Department? If
yes, why?
Point23 Whether statements of employees of Kalabhai
petrol pump were recorded on 1042002? If yes, why and
at whose instance?
Point24 Whether the statement of the employees of Day
Shift of that pump were recorded? If no, why?
Point25 Whether there was any possibility or chances for
passengers of Coach S6 for easy escape from the Coach,
during short span of time, because of stone pelting and
sudden fire?
Point26 Whether gathering of crowd was spontaneous and
the subsequent part of incident was a simple reaction of
quarrel took place on platform?
Point27 Whether such small quarrels are not being
occurred, day in and day out, in the Country, more
particularly in overcrowed area, like Railway Stations, Bus
Stations, Markets, Heavy Traffic areas etc?
Point28 Whether there are any incidents of such serious
reactions of such small quarrel and that too, of train
travelling?
Point29 Whether any such quarrel took place earlier at
Rudroli or Dahod Railway Stations between karsevaks and
muslims?
Point30 Whether there was any such serious reactions of
those small quarrels? If no, why?
Point31 Whether any such attack was made at Godhra
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Railway
Station on that day on any other train passengers? If no,
why?
Point32 What is the past Communal history of Godhra?
Point33 Whether some muslim Ghanchi of Godhra are
communal minded persons?
Point34 Whether earlier the incident of similar kind of fire
and death of many persons took place in Sofiya Madresha
School?
Point35 Whether the subsequent conduct of members of
mob, other muslims and leaders of Godhra, abscondance of
accused, providing of help to under trial prisoners and their
families etc can be taken into consideration or not?
(Instructions issued by the Government at the relevant time
are on record.)Point36 What is the meaning of ” Preplanned’? Whether
storing of Petrol in huge quantity, in a nearby place, can be
termed as “PrePlan” ?
In the earlier part of the judgment, the answers with regard
to all the above referred to questions, have been given with
reasons, discussing all the relevant available material on
record therefore, now at this stage, it is suffice to say that it
would not have been possible for the assailants to gather
near the place of incident, to make assault with deadly
weapons, to set the Coach S6 on fire and to kill 59 persons
and to cause burn injuries to 48 others, within a short span
of 20 minutes time, stopping the train at a lonely place and
pouring the petrol approximately 140 liters inside the said
Coach, if there was no preplanned at all and no conspiracy
amongst the assailants.”
Thus, conspiracy was believed to have been established by
the prosecution.
Para [85] is about T.I.Parade in the context of Section 9 of
Evidence Act and again it is discussed with the law laid down by
Apex Court in various decisions.
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In para [86] Recovery / Discovery of Muddamal Articles etc.
under Section 27 of the Evidence Act and was discussed in detail
along with law laid down by the Apex Court in various decisions.
Para [89] is about Reliability-Credibility of 9 VHP workers,
Godhra, which was not believed.
In para [90] Principles on Solitary Witness under Section
134 of the Evidence Act were discussed in detail in context of
Section 134 of the Evidence Act with the aid of decisions of the
Apex Court and this Court and it was held that instances for
minimum three or four witnesses to prove assailant’s guilt was
found not justifiable.
Para [91] is about Unlawful Assembly under Section 149 of
the IPC was considered as per provisions contained Cr.P.C. and
decision of the Apex Court relied on by the learned Special Public
Prosecutor as well as defence and it was held common object of
the members of the mob was to attach on the train passengers
particularly on the Kar Sevaks and to fulfill common object, the
mob had attached with deadly weapons caused simple as well as
grievous injuries, burn injuries to the passengers and set the coach
on fire.
“[95] SUMMARY OF MATERIAL MATRIX & CONCLUSION:
P.10 Whether the prosecution further proves beyond
reasonable doubt that by committing such illegal acts, the
accused persons have made them liable for punishment, for
the offences punishable under Sections 143, 147, 148, 149,
302, 307, 323, 324, 325, 326, 332, 395, 397, 435, 186 and
188 read with 120 B, 153A, 212 of the I.P. Code, Sections
141, 150, 151 and 152 of the Indian Railways Act, Sections
3 and 4 of the Prevention of Damages to Public Property
Act, and Section 135(1) of the Bombay Police Act?
ANS: In the affirmative partly [Para95]
[1] As discussed earlier, it is crystal clear that in the year
2002, a National level programme “Ram Yanga” was
organized by different Hindu Organizations VHP, RSS,
Bajrang Dal etc. at Ayodhya and for that karsevaks were
invited from different parts of the Country. From Gujarat
also, hundreds of Hindus (karsevaks) had gone to Ayodhya
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to attend this Yagna.
[2] At the relevant time, “Sabarmati Express Train” was
running between Ahmedabad and Mujaffarnagar, the
Godhra Railway Station is a junction and it was declared as
“Official stoppage” for this train. The regular arrival time of
this Sabarmati Express Train 9166 DN, from Mujaffarnagar
to Ahmedabad, on platform No.1 of Godhra Railway
Station, was 2.55 a.m. (midnight).
[3] Mr. Rajendra Rao R. Jadav was Driver, Mr. Mukesh
Panchori, Mr. Vora were Asst. Drivers, whereas Mr.
S.P.Varma was Guard and Mr. S.M.Raniwal was as Ticket
Examiner in this train.
[4] Mr. Khatija was as Station Superintendent, Mr.
Saiyed and Mr. Sujala were as Dy. Station Superintendent
whereas, Mr. Harimohan Meena was the Asst. Station
Master, Mr. Rajandra Meena and Mr. Akhilkumar Meena
both were Asst. Station Master and at the relevant time
their duty was at “A’ Cabin.
[5] Mr. Raju Bhargav was DSP, Smt. Jayanthi Ravi was a
Collector, whereas, Mr. Mohmad Husen Kalota (Accused)
was a President of Godhra Nagar Palika.
[6] On the date of incident, i.e. on 2722002, this train
was behind the schedule and came late at Godhra Railway
Station, on platform No.1 at 7.40 a.m.
[7] This train was overcrowded by passengers and
karsevaks. On the platform, when the passengers and
karsevaks got down for teabreakfast etc, they were
shouting slogans “Jai Shri Ram” and some quarrel took
place on platform between karsevaks and Hawkers in
respect of payment of price of teabreakfast and compelling
for speaking of slogan “Jai Shri Ram”.
[8] Not only that some karsevaks had also misbehaved
with the muslim girls Sofiya etc on the platform.
[9] When the train departed for Vadodara at 7.45 a.m.,
first chain pulling came to be done in Coach No. 83101,
5343, 51263 and 88238.
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[10] At that time, stone pelting started by the members of
the mob of muslim community, from behind Parcel Office
i.e. Signal Faliya and on the other hand, some karsevaks
had also thrown metals towards that mob.
[11] After resetting the system, when the train again
started, second chain pulling came to be done by turning
the outside Disk of ACP of the coaches and the train was
stopped again, near “A’Cabin, a lonely area.
[12] Immediately, a mob consisting of more than 900
muslim persons of nearby area, attacked on the train with
weapons like Sticks, Ironpipes, Ironrods, Dhariyas, Guptis,
shouting slogans and also started pelting stones, acid bulbs
bottles, burning rags etc on the train coaches. At the same
time, crowed was instigated by making announcements on
loud speaker from nearby Ali Masjid. By creating such a
tense atmosphere, passengers of the train were
restrained/prevented from escaping from the coaches, even
on “offside of the train”.
[13] Because of such heavy stone pelting, the window
glasses of almost, all the coaches, and some window frames
were also broken, through which stones etc started coming
into coaches also.
[14] As the assailants could not succeed in setting on fire
the coach by throwing burning rags etc, some assailants
found out another way and after cutting canvas vestibule of
Coach S7, succeeded in opening eastern side sliding door
of Coach S6 forcibly and after entering into the coach, the
EastSouth corner door of Coach S6 came to be opened,
from which some others entered with Carboys containing
petrol and poured petrol sufficient enough in the coach and
then by a burning rag, the entire Coach S6 set on fire.
[15] In all 58 passengers/karsevaks died on the spot in the
coach itself and one injured succumbed to the injury on 34
2002. Amongst these 59 deceased, 29 were males, 22
females, whereas 8 were children. Not only that other 48
persons sustained burn and other injuries during the course
of incident.
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[16] Inquest Panchnama and Autopsy on dead bodies,
came to done in open space of Railway Yard, Godhra. As
opined, the cause of death was extensive burn injuries.
[17] Injured persons immediately shifted to Godhra Civil
Hospital and then, to Civil Hospital, Ahmedabad for further
treatment.
[18] Panchnama of place of occurrence was drawn on the
same day during the period between 1.00 p.m. to 3.00 p.m.
and certain articles were seized from the spot and sealed in
presence of panchas. The said articles were sent to FSL on
232002 by special messenger and as per FSL Report dt;
2032002 (Exh.1173), petrol residues were noticed in
many articles like Under wear, Lungi, Slipper, Metals,
Aluminium strips, Safety bars, Pieces of dry colour parts of
the coach, Saree, Petticoat, Scraf, Clothe pieces and also in
Carboys. Even acid was noticed in one Plastic bottle.
[19] On the next day i.e. on 2822002 panchnama of
Coach S6 was also drawn and certain materials were seized
from all the nine compartments, as also from two toilets,
sealed in presence of panchas and then, sent to FSL on 23
2002 by special messenger. As per FSL Report dt; 2032002
(Exh.1173), in these materials also petrol residues were
noticed.
[20] All the four doors, locks, some safety bars etc were
also came to be removed/detached from the Coach S6,
sealed in presence of panchas and then, sent to FSL for
examination. As per FSL Report dt; 1752002 (Exh.1154),
out of four doors, only one door i.e. WestSouth corner of
Coach S6 must be closed whereas the remaining three
doors must be opened during the course of incident. Many
hit marks of stone pelting were also noticed on the outer
part of the doors. [21] The cause of fire which took place in
Coach S6 was not short circuit or accidental because of any
leakage of kerosene from stove of any passenger, but
definitely petrol in huge quantity came to be poured inside
the coach on the rear portion, after entering into coach and
then using burning rag it was ignited.
[22] Damage to the tune of Rs. 17,21,250/ to coach No.
S6, Rs. 5,000/ to coach No.7, Rs. 5,000/ to coach No.5
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and Rs. 31,225/ to the remaining coaches came to be
caused by the assailants. Not only that valuables and
luggages of the passengers of coach S6 were also almost
destroyed in the fire.
[23] Fire Fighter passing through Signal Faliya area, came
to be prevented from immediate reaching to the spot.
[24] Abdul Rajak Kurkur (Accused No.2 of S.C.No.70/09)
was the owner and occupant of Aman Guest House, situated
just behind (Southern side) of the Railway Station, Godhra.
[25] Kalabhai Petrol Pump (Kalumiya) is also situated just
behind the Railway Station, on the entrance road of Signal
Faliya. Prosecution witnesses Ranjitsinh Jodhabhai Patel
and Prabhatsinh Gulabbhai Patel were on duty on this
Petrol Pump on 2622002 in the night shift i.e. from 6.00
p.m. onwards to next day early morning i.e. upto 9.00 a.m.
on 2722002.
[26] Conspiracy came to be hatched on the previous day
i.e. 2622002 during the meeting held in Aman Guest
House between the conspirators Haji Bilal, Faruk Bhana,
Abdul Rajak and Salim Panwala.
[27] As per the plan, Abdul Rajak Kurkur and Salim
Panwala both had gone to Kalabhai Petrol Pump on moped
scooty on 2622002 at about 10.00 p.m. taking with them
other conspirators Salim Jarda, Shaukat Ahmed Charkha @
Lalu, Imran Ahmed Bhatuk @ Sheru, Hasan Ahmed
Charkha, Mehbub Khalid Chanda and Jabir Binyamin Behra
in a Three Wheelers Tempo No, GJ6 U 8074, and
purchased 140 litres loose petrol in different 7 Carboys and
then, stored it behind Aman Guest House, in the house of
Abdul Rajak Kurkur. Thereafter, a meeting of these
conspirators again held in the Room No.8 of the said Aman
Guest House.
[28] Taking advantage of quarrel took place on platform
and misbehaviour by karsevaks with muslim girls, the
absconding accused coconspirator Salim Panwala and the
accused Mehbub Ahmed @ Latiko raised shouts, called
muslim people from nearby area of Signal Faliya etc., by
misleading that karsevaks were abducting muslim girl inside
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the train, and also instructed to stop the train by chain
pulling.
[29] As per the said instruction the assailants by turning
disk of ACP situated on the outside of the Coaches, stopped
the train near `A’Cabin.
[30] Then immediately, Abdul Rajak Kurkur and
absconding accused Salim Panwala taking with them a
Carboy containing petrol proceeded towards `A’Cabin on a
Red coloured M80 Bajaj moped scooty.
[31] At the same time, Saukat Ahmed Charkha @ Lalu,
Hasan Ahmed Charkha @ Lalu, Mehbub Ahmed Hasan @
Latiko, Imran Ahmed Bhatuk @ Sheru, Jabir Binyamin
Bahera, Irfan Abdul Majid Kalander @ Irfan Bhobha, Irfan
Hanif @ Hani Panwala, Rafik Husen Bhatuk and Ramjani
Binyamin Behra rushed behind the Aman Guest House,
picked up the Carboys containing petrol, placed in the three
wheelers tempo and then proceeded towards `A’Cabin via
rough road of Ali Masjid.
[32] Mehbub Yakub Mitha @ Popa, Mehbub Khalid
Chanda, Ayub Abdulgani Patliya, Yunus Abdulhaq Ghadiyali
etc. went near Coach S2 with weapons and started
breaking window glasses ect. and also thrown a burning rag
inside the said Coach S2.
[33] Abdul Rajak Kurkur and absconding accused Salim
Panwala went near Coach S6 and poured petrol from the
broken window, just near the closed door (towards
engine/front side) of the Coach S6.
[34] Mehbub Ahmed Yusuf Hasan @ Latiko who had with
him a big knife (Chharo for cutting meat) first made holes
on the upper part of the Carboys and then, cut the canvas
vestibule of Coach S7, situated between the Coaches S6
and S7 (corridor).
[35] Mehbub Ahmed Hasan and Jabir Binyamin Behra
climbed up the said corridor place and by use of force with
kicks etc, opened the eastern side sliding door of Coach S6.
[36] Mehbub Ahmed Hasan @ Latiko, Jabir Binyamin
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Behra and Saukat Ahmed Charkha @ Lalu then entered into
Coach S6 from the said sliding door with Carboys
containing petrol.
[37] Absconding accused Saukat Lalu opened the East
South corner door of the Coach S6, from where the
remaining three i.e. Imran Sheru, Irfan Bhobha, Rafiq
Bhatuk entered in the Coach with Carboys and poured
petrol.
[38] Ramjani Binyamin Behra and Hasan Lalu were
throwing petrol from the outside of the Coach, towards
windows.
[39] Hasan Ahmed Charkha @ Hasan Lalu put on fire
coach S6 by through burning rag (kakdo).
[40] Then all the above accused persons who were in the
Coach got down from the Coach on “Off side”.
[41] Jabir Binyamin Behra, Siddiq Mohmad Moriya,
Saukat Faruq Abdulsattar Pataliya @ Bhano and Saukat
Yusuf Mohan @ Bibino caught hold of one Govindsinh
Panda (PW202) and caused him grievous injury inflicting
ironrod blow on his head. However, these accused persons
at the request of prosecution witness Suleman M. Bhatuk
(PW193) allowed to go this injured Mr. Panda. Thereafter,
all these four accused persons had also caught hold of PW
170 Pravinbhai Amthabhai Patel, karsevak, on off side of
the said train, caused injuries on his back, chest both hands
and legs by iron pipe, iron bar etc and also snatched away
cash Rs. 3,000/ as well as gold ornaments, one chain and
two rings, from him.
[42] If there was no plan at all, it would have not been
possible to gather muslim persons with deadly weapons
within five to six minutes and to reach near “A’Cabin on the
railway tracks.
[43] If the petrol was not kept ready in loose form in
Carboys on previous night near Aman Guest House, it
would not have been possible to reach with Carboys
containing petrol in huge quantity immediately i.e. within 5
to 10 minutes near the coach S6.
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[44] The target of the assailants was not all the passengers
of this train or any other train or any other Hindus, but
definitely the karsevaks who were traveling in this train
were only the target of the assailants.
[45] Shouting of slogans by assailants and announcement
on loud speaker from nearby mosque also clearly suggest
about motive and preplan.
[46] The quarrel took place on platform or misbehaviour
with muslim girls by karsevaks were only the causes for
spontaneous reactions can never be accepted because as per
the evidence on record, such quarrel had also took place
earlier at Rudroli Station and the Dahod Station. However,
it was not resulted into such serious reactions.
[47] Godhra is known for its past history of communal
riots.
[48] For Godhra, this is not the first incident of burning
alive innocent persons belonged to Hindu community.
[49] The offence of criminal conspiracy is a technical
nature and the essential ingredient of the offence is the
agreement to commit an offence. The gist of the offence
under Section 120A of I.P.Code is that the agreement
between two or more persons to do or cause to be done an
illegal act or a legal act by illegal means.
The offence of criminal conspiracy is complete as soon as
two or more persons agree to do or cause to be done an
illegal act, or an act which is not illegal by illegal means. It
is immaterial whether the illegal act was the ultimate object
of such an agreement or was merely, incidental to that
object. The agreement in itself is enough to constitute the
offence.
The entire agreement must be viewed as a whole and it has
to be ascertained as to what infact the conspirators intended
to do or the object they wanted to achieve.
The offence of conspiracy is continuing offence. It is
committed not only when the agreement is first reached but
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continues as long as the agreement to effect the unlawful
object continues.
In the case of law Roy Jrey Vs.Supt. Director Jail reported in
AIR 1958 SC 119, the Hon’ble Supreme Court has held that:
“The conspiracy to commit crime and the crime itself are
two different offences. Conspiracy precedes the commission
of crime and is complete before the crime is attempted or
completed.”
In the case of Yespal Metal Vs. State of Punjab reported in
AIR 1977 SC 2433 the Hon’ble Supreme Court has held
that:
“The offence of conspiracy under Section120A is a
distinct offence. The very agreement, concert or
league is the ingredient of the offence. It is not
necessary that all the conspirators must know each
and every detail of the conspiracy as long as they are
coconspirators in the main object of the conspiracy.
There must be unity of object or purpose but there
may be plurality of means sometimes even unknown
to one another. The only relevant factor is that all
means adopted and illegal acts done must be and
purported to be in furtherance of the object of
conspiracy.”
In the case of state of Himachal Pradesh Vs. Krishanlal
reported in AIR 1987 SC 773 the Hon’ble Supreme Court
has held that:
“the offence of conspiracy consists in a meeting of
minds of two or more persons for agreeing to do or
causing to be done an illegal act or an act by illegal
means, and the performance of an act in terms
thereof. If pursuant to the criminal conspiracy, the
conspirators commit several offences, then all of them
will be liable for the offences, even if, some of them
had not actively participated in the commission of the
offences.”
In the case of Raghuvir Sinh Vs. State of Bihar reported in
AIR 1987 SC 149, the Hon’ble Supreme Court has held that:
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“It is not necessary that a person should be a
participant in conspiracy from start to finish
Conspirators may appear and disappear from stage to
stage in course of conspiracy.” The fact that some
members of a conspiracy are not members from the
beginning but join the conspiracy only later, does not
absolve him from the liability of conviction.”
In the case of Narayanan Vs. State of Kerala, reported in
1995 (1) SCC 142 the Hon’ble Supreme Court has held that:
“Any person associating himself with the conspirator shall
be held liable as coconspirator accused.”
In the case of R.Vasu Nair Vs. State of Trav.Cochin, reported
in AIR 1955 TC 33 the Hon’ble High Court has held that:
“Where in pursuance of the criminal conspiracy, the
accused and their friends found together into an
unlawful assembly, having the common object of
assaulting and murdering, a Police Inspector and the
Police Constables who had come to their place, and in
prosecution of the common object of the unlawful
assembly, they all ambushed the police party
springing upon them from both sides of lane as they
were proceeding through it and throwing stones at
them, and also cutting and stabbing and beating the
Inspector and the Police Inspector and the Police
Constables, with deadly weapons such as Choppers,
Knives, Daggers, Stones, Slings and Sticks as the
result of which, the Inspector and a Constable died on
the spot and other persons died in the Hospital. The
accused are guilty of the offences punishable under
Section 120B of IPC also.
In the case of S.C.Baheri Vs. State of Bihar reported in 1994
CrLJ 3271, the Hon’ble Supreme Court has held that:
“Where the charge of conspiracy fails, the individual
accused could still be convicted for the offences
committed by them and sentenced accordingly.”
In the case of Bahu Singh Vs. State of Punjab reported in
1996 (8) SCC 699 the Hon’ble Supreme Court has held that:
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“Merely because the charge of conspiracy has failed,
the prosecution case, in so far as, actual assault by
the accused is concerned, cannot be thrown away.”
[50] To determine the charge of “Conspiracy or pre
planned’, all the testimonial and documentary evidence as
well as surrounding circumstance are required to be taken
into consideration. Considering the confessional statement
of coaccused Jabir Binyamin Behra, injury sustained by
him, evidence of eyewitnesses Pravinbhai A. Patel,
Govindsinh Panda, evidence of other eyewitnesses Ajay
Kanubhai Bariya, Sikander Shaikh, Bhikhabhai Harmanbhai
Bariya, Dilipbhai Gaimal Sindhi, other prosecution
witnesses, FSL Reports, place and time period of incident,
and other surrounding circumstances, it can definitely be
said that the alleged incident was not a simple reaction of a
small quarrel took place on the platform, but it was a pre
planned attack on the karsevaks, as a part of conspiracy
hatched by the conspirators on the previous day i.e. on 26th
February 2002, at Aman Guest House, Godhra.
[51] As regards forming of unlawful assembly and
common object thereof, the decision in the case of State of
U.P. Vs. Dan Singh and ors. Reported in AIR 1997 SC 1654,
is very much helpful as the facts therein, is almost similar to
the case on hand. In that case 14 scheduled caste persons
were killed and 7 sustained injuries, as to save them selves
the door of house bolted from inside, the assailants bolted if
from outside, and after making hole in the roof, they put in
dried grass, sprinkled kerosene oil and put in on fire. 32
accused persons charged for offences under Sections 302,
149 etc. the trial Court acquitted all. However, the Hon’ble
High Court, convicted only 10 for the offences under
Section325 r/w 34 of IPC. The Hon’ble Supreme Court
ultimately held that there was an unlawful assembly which
attacked the marriage partly and which had the common
object of killing them, and they succeeded in their
endeavour a large extent.
Thus, in the case on hand also, in view of the above
decision and as discussed earlier in this judgment, it is
crystal clear that unlawful assembly came to be formed, the
accused persons were the member of the said assembly and
well aware about its ultimate object.
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[52] As discussed in detail in para94 of this judgment,
while dealing with the case accused wise and role played by
each of them in alleged incident the prosecution could
succeed to establish the charges against only 31 accused
persons and failed to prove the allegations against the
remaining 63 accused facing the present trial proceedings.
In earlier part of this judgment, while dealing with the
issue, relating to forming of unlawful assembly, after taking
into consideration the motive common object and other
surrounding circumstance, it has been clearly held that
gathering of the mob was not only spontaneous, but
unlawful assembly came to be formed with a view to fulfill
the common object by the assailants.
[53] Thus, the charges for the offences punishable under
Sections 143, 147, 148, 302, 307, 323, 324, 325, 326, 332,
395, 397, 435, 186 and 188 read with 120B, 149,153A, of
the I.P. Code, Sections 141, 150, 151 and 152 of the Indian
Railways Act, Sections3 and 4 of the Prevention of
Damages to Public Property Act, and Section135(1) of the
Bombay Police Act, are clearly established against the 31
accused persons. The accused No. 42 of S.C.No.69/2009,
accused No.54 of S.C. No.69/2009, accused No.3 of S.C.
No.70/2009, accused No.1 of S.C.No.72/2009, accused
No.1 of S.C.No.74/2009, accused No.2 of S.C.No.79/2009
and accused No.1 of S.C.No.83/2009 (in all seven) are
entitled to get benefit of doubt whereas, the remaining
(fifty six) are entitled for acquittal”
PART X
Before we proceed to appreciate the evidence produced on
record, relevant and necessary provisions of The Indian Evidence Act,
1872, Indian Penal Code, 1860, and Code of Criminal Procedure, 1973,
are reproduced hereinbelow:
Relevant Sections of The Indian Penal Code, 1860
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Sec. 120 Concealing design to commit offence punishable
with imprisonment Whoever, intending to facilitate or
knowing it to be likely that he will thereby facilitate the
commission of an offence punishable with imprisonment,voluntarily conceals, by any act or illegal omission, the
existence of a design to commit such offence, or makes any
representation which he knows to be false respecting such
design.
If offence be committed – if offence be not committed –
shall, if the offence be committed, be punished with
imprisonment of the description provided for the offence, for a
term which may extend to onefourth, and, if the offence be
not committed, to oneeight, of the longest term of such
imprisonment, or with such fine as is provided for the offence,
or with both.
Sec. 120A Definition of criminal conspiracy When two or
more persons agree to do, or cause to be done,(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
Sec.120B Punishment of criminal conspiracy [1) Whoever is
a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, shall, where
no express provision is made in this Code for the punishment
of such a conspiracy, be punished in the same manner as if he
had abetted such offence.
[2] Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine or
with both.
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Sec.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 isFirst To overawe by criminal force, or show of criminal force,
a [the 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; orSecond To resist the execution of any law, or of any legal
process; orThird To commit any mischief or criminal trespass, or other
offence; orFourth 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; orFifth 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.
Sec.142 Being member of unlawful assembly Whoever,
being aware of facts which render any assembly an unlawful
assembly, intentionally joins that assembly, or continues in it,
is said to be a member of an unlawful assembly.
Sec.143 Punishment Whoever is a member of an
unlawful assembly, shall be punished with imprisonment of
either description for a term which may extend to six months,
or with fine, or with both.
Sec.144 Joining unlawful assembly armed with deadly
weapon Whoever, being armed with any deadly weapon, or
with anything which, used as a weapon of offence, is likely to
cause death, is a member of an unlawful assembly, shall be
punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
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Sec.145 Joining or continuing in unlawful assembly,
knowing it has been commanded to disperse Whoever joins
or continues in an unlawful assembly, knowing that such
unlawful assembly has been commanded in the manner
prescribed by law to disperse, shall be punished with
imprisonment of either description for a term which may
extent to two years, or with fine, or with both.
Sec.146 Rioting Whenever force or violence is used by an
unlawful assembly, or by any member thereof, in prosecution
of the common object of such assembly, every member of such
assembly is guilty of the offence of rioting.
Sec.147 Punishment for rioting Whoever is guilty of
rioting, shall be punished with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both.
Sec.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.
Sec.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.
Relevant Sections of The Code of Criminal Procedure, 1973
Sec. 28 Sentences which High Courts and Sessions
Judges may pass.[1] A High Court may pass any sentence authorized by law.
[2] A Sessions Judge or Additional Sessions Judge may pass
any sentence authorized by law; but any sentence of death
passed by any such Judge shall be subject to confirmation by
the High Court.
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[3] An Assistant Sessions Judge may pass any sentence
authorized by law except a sentence of death or of
imprisonment for life or of imprisonment for a term exceeding
ten years.
Sec. 164 Recording of confessions and statements [1]
Any Metropolitan Magistrate or Judicial Magistrate may,
whether or not he has jurisdiction in the case, record any
confession or statement made to him in the course of an
investigation under this Chapter or under any other law for the
time being in force, or at any time afterwards before the
commencement of the inquiry or trial.
Provided that any confession or statement made under this
subsection may also be recorded by audiovideo electronic
means in the presence of the advocate of the person accused of
an offence:
Provided further that no confession shall be recorded by a
police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force.
[2] The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it may be
used as evidence against him; and the Magistrate shall not
record any such confession unless, upon questioning the
person making it, he has reason to believe that it is being made
voluntarily.
[3] If at any time before the confession is recorded, the
person appearing before the Magistrate states that he is not
willing to make the confession, the Magistrate shall not
authorize the detention of such person in police custody.
[4] Any such confession shall be recorded in the manner
provided in section 281 for recording the examination of an
accused person and shall be signed by the person making the
confession; and the Magistrate shall make a memorandum at
the foot of such record to the following effect“I have explained to (name) that he is not bound to make a
confession and that, if he does so, any confession he may make
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confession was voluntarily made. It was taken in my presence
and hearing, and was read over to the person making it and
admitted by him to be correct, and it contains a full and true
account of the statement made by him.
(Signed) A. B.
Magistrate,”
[5] Any statement (other than a confession) made under
subsection (1) shall be recorded in such manner hereinafter
provided for the recording of evidence as is, in the opinion of
the Magistrate, best fitted to the circumstances of the case, and
the Magistrate shall have power to administer oath to the
person whose statement is so recorded.
[(5A)(a) In cases punishable under Section 354, Section 354A,
Section 354B, Section 354C, Section 354D, subsection (1) or
subsection (2) of Section 376, Section 376A, Section 376B,
Section 376C, Section 376D, Section 376E or Section 509 of
the Indian Penal Code [45 of 1860], the Judicial Magistrate
shall record the statement of the person against whom such
offence has been committed in the manner prescribed in sub
section (5), as soon as the commission of the offence is
brought to the notice of the police:
Provided that if the person making the statement is
temporarily or permanently mentally or physically disabled,
the Magistrate shall take the assistance of an interpreter or a
special educator in recording the statement:
Provided further that if the person making the statement is
temporarily or permanently mentally or physically disabled,
the statement made by the person, with the assistance of an
interpreter or a special educator, shall be videographed.
(b) A statement recorded under Clause (a) of a person, who is
temporarily or permanently mentally or physically disabled,
shall be considered a statement in lieu of examinationinchief,
as specified in Section 137 of the Indian Evidence Act, 1872 [1
of 1872] such that the maker of the statement can be cross
examined on such statement, without the need for recording
the same at the time of trial.
[6] The Magistrate recording a confession or statement under
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this section shall forward it to the Magistrate by whom the case
is to be inquired into or tried.
Sec. 172 Diary of proceedings in investigation (1) Every
police officer making an investigation under this Chapter shall
day by day enter his proceedings in the investigation in a diary,
setting forth the time at which the information reached him,
the time at which he began and closed his investigation, the
place or places visited by him, and a statement of the
circumstances ascertained through his investigation.
[1A] The statements of witnesses recorded during the course
of investigation under section 161 shall be inserted in the case
diary.
[1B] The diary referred to in subsection (1) shall be a volume
and duly paginated.
[2] Any Criminal Court may send for the police diaries of a
case under inquiry or trial in such Court, and may use such
diaries, not as evidence in the case, but to aid it in such inquiry
or trial.
[3] Neither the accused nor his agents shall be entitled to call
for such diaries, nor shall he or they be entitled to see them
merely because they are referred to by the Court; but, if they
are used by the police officer who made them to refresh his
memory, or if the Court uses them for the purpose of
contradicting such police officer, the provisions of section 161
or section 145, as the case may be, of the Indian Evidence Act,
1872, shall apply.
Sec.281 Record of examination of accused. [1] Whenever
the accused is examined by a Metropolitan Magistrate, the
Magistrate shall make a memorandum of the substance of the
examination of the accused in the language of the Court and
such memorandum shall be signed by the Magistrate and shall
form part of the record.
[2] Whenever, the accused is examined by any Magistrate
other than a Metropolitan Magistrate, or by a Court of Session,
the whole of such examination, including every question put to
him and every answer given by him, shall be recorded in full
by the presiding Judge or Magistrate himself or where he is
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unable to do so owing to a physical or other incapacity, under
his direction and superintendence by an officer of the Court
appointed by him in this behalf.
[3] The record shall, if practicable, be in the language in
which the accused is examined or, if that is not practicable, in
the language of the Court.
[4] The record shall be shown or read to the accused, or, if
he does not understand the language in which it is written,
shall be interpreted to him in a language which he
understands, and he shall be at liberty to explain or add to his
answers.
[5] It shall thereafter be signed by the accused and by the
Magistrate or presiding Judge, who shall certify under his own
hand that the examination was taken in his presence and
hearing and that the record contains a full and true account of
the statement made by the accused.
[6] Nothing in this section shall be deemed to apply to the
examination of an accused person in the course of a summary
trial”.
Sec.294 No formal proof of certain documents. [1] Where
any document is filed before any Court by the prosecution or
the accused, the particulars of every such document shall be
included in a list and the prosecution or the accused, as the
case may be, or the pleader for the prosecution or the accused,
if any, shall be called upon to admit or deny the genuineness of
each such document.
[2] The list of documents shall be in such form as may be
prescribed by the State Government.
[3] Where the genuineness of any document is not disputed,
such document may be read in evidence in any inquiry, trial or
other proceeding under this Code without proof of the
signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such
signature to be proved.
Sec.366 Sentence of death to be submitted by Court of
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Session for confirmation. [1] When the Court of Session
passes a sentence of death, the proceedings shall be submitted
to the High Court, and the sentence shall not be executed
unless it is confirmed by the High Court.
[2] The Court passing the sentence shall commit the
convicted person to jail custody under a warrant.
Sec. 367.Power to direct further inquiry to be made or
additional evidence to be taken. [1] If, when such
proceedings are submitted, the High Court thinks that a further
inquiry should be made into, or additional evidence taken
upon, any point bearing upon the guilt or innocence of the
convicted person, it may make such inquiry or take such
evidence itself, or direct it to be made or taken by the Court of
Session.
[2] Unless the High Court otherwise directs, the presence of
the convicted person may be dispensed with when such inquiry
is made or such evidence is taken.
[3] When the inquiry or evidence (if any) is not made or
taken by the High Court, the result of such inquiry or evidence
shall be certified to such Court.
368.Power of High Court to confirm sentence or annul
conviction. In any case submitted under section 366, the High
Court[a] may confirm the sentence, or pass any other sentence
warranted by law, or[b] may annul the conviction, and convict the accused of
any offence of which the Court of Session might have
convicted him, or order a new trial on the same or an amended
charge, or[c] may acquit the accused person:
Provided that no order of confirmation shall be made under
this section until the period allowed for preferring an appeal
has expired, or, if an appeal is presented within such period,
until such appeal is disposed of.
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The Criminal Manual
CONFESSION
Pare 33 Accused person willing to make a confession or a
person willing to make statement under section 164, Code of
Criminal Procedure, 1973, should be taken for the purpose
before the Chief Metropolitan Magistrate, Chief Judicial
Magistrate or the Judicial Magistrate, as the case may be and
as far as possible, before the Magistrate who will not
eventually try the case. The Chief Metropolitan Magistrate or
the Chief Judicial Magistrate may record the confession or
statement, himself or would assign for the purpose a
Metropolitan Magistrate or Judicial Magistrate at district head
quarters, as the case may be, who would not eventually try the
case. The Judicial Magistrates in taluka towns or outside
district headquarters should not record confession or statement
under section 164, Code of Criminal Procedure, in cases arising
within their respective jurisdiction and in such cases the police
should be directed to approach the Judicial Magistrate of the
nearby Court.
Para 34 The following instructions are issued for the guidance
of the Magistrates recording confession and statement under
section 164, Code of Criminal Procedure, 1973. They are not
intended to fetter the discretion given by the law of
Magistrates. The only object with which they are issued is to
indicate generally the manner in which the discretion may be
exercised :
(i) In the absence of exceptional reasons, confession should
ordinarily be recorded in open Court and during Court hours.
(ii) The examination of the accused person immediately after
the Police bring him into Court, is deprecated. When the
accused is produced before the Magistrate, the Police Officers
should be removed from the Courtroom unless in the opinion
of the Magistrate, the duty of ensuring their safe custody
cannot safely be left to other attendants. In that case only the
minimum number of Police Officers necessary to secure the
safe custody of the accused person should be allowed to
remain in the Courtroom.
(iii) It should be impressed upon the accused person that he is
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no longer in police custody.
(iv) The Magistrate should then question the accused person
whether he has any complaint to make of illtreatment against
the police or others responsible for his arrest or custody, and
shall place on record the questions put and the answers given.
(v) If the accused person makes an allegation of illtreatment,
the Magistrate shall follow the same procedure as is laid down
in paragraph 14(1) above.
(vi) If the accused does not complain of any illtreatment or
improper conduct or inducement on the part of the Police, or
if inspite of the alleged illtreatment, misconduct or
inducement, he adheres t his intention of making a
confessional statement, the Magistrate should give the accused
a warning that he is not bound to make the confession and
that, if he does so , it will be taken down and may thereafter be
used as evidence against him. A note of the warning given to
the accused should be kept on record.
(vii) Thereafter the Magistrate should give the accused a
reasonable time, which should ordinarily no to be less than 24
hours, for reflection in circumstances in which he would be
free from the influence of the Police and any other person
interested in having the confession recorded. The accused
should be told that he is no longer in police custody and he is
being sent to Magisterial custody.
(viii) After the accused is produced before the Magistrate
again, it should be ascertained from him whether he is willing
to make a confession. If he expresses his desire to confess, all
Police Officers should be removed from the Courtroom, unless
in the opinion of the Magistrate the duty of ensuring his safe
custody cannot safely be entrusted to other attendants. In that
case only the minimum number of Police Officers necessary to
secure the safe custody of the accused person should be
allowed to remain in the courtroom. In any case, it is not
desirable that the police Officer making the investigation
should be present.
(ix) The Magistrate should then question the accused person
as to the length of time during which he has been in the
custody of the Police. It is not sufficient to note the date andPage 462 of 988
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hour mentioned in the police papers, at which the accused
person is said to have been formally arrested.
(x) The provisions of Section 163 and 164 of the Code of
Criminal Procedure, 1973, should be carefully adhered to.
The first clause of Section 163 read with Section 24 of the
Indian Evidence Act, provides that if a confession is caused by
any inducement, threat or promise, offered or made, or caused
to be offered or made by any Police Officer or person, then, if
in the opinion of the Court the inducement, threat or promise
was sufficient to give the accused person grounds, which
would appear to him reasonable, for supposing that by making
the confession he would gain any advantage or avoid any evil
of a temporal nature in reference to the proceedings against
him and unless in the opinion of the Court the impression
caused by any sch inducement, threat or promise, has been
fully removed, such confession is irrelevant, that is, it can not
be used as evidence in any criminal proceeding.
(xi) Under clause (2) of Section 163, for a confession of an
accused person made in the course of a police investigation to
have any value, it must be one which the accused person was
disposed to make of his own free will. Before recording any
such confession, the Magistrate is bound to question the
accused person, and unless upon that questioning he has
reason to believe that the confession is voluntary, he should
not make the memorandum at the foot of the record. He
cannot make the memorandum, “I believe that this confession
was voluntarily made” unless he has questioned the accused
person, and from that questioning has formed the belief not a
doubtful attitude of mind, but a positive belief, that the
confession is a statement which the accused person, and from
that questioning has formed the belief not a doubtful attitude
of mind, but a positive belief, that the confession is a statement
which the accused person was disposed to make of his own
free will.
(xii) Before recording a confession, the Magistrate should
question the accused with a view to ascertain the exact
circumstances in which his confession is being made and the
connection of Police with it, under clauses (iv), (vi), (x) and
(xi) above. In particular, where more than one accused is
involved in the case, he should question the accused whether
he has been induced to make a confession by promises to make
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him an approver in the case. Anything in the nature of cross
examination of the accused is to be deprecated. It should,
however, be the endeavour of the Magistrate, without having
recourse to heckling or attempts to entrap the accused, to
record the statement with as much details as possible regarding
the circumstances under which the confession was being made,
the extent to which the police had anything to do with the
accused prior to this offer to make a confession, as well as the
fullest possible particulars of the incidents to which the
confession relates. These details are important as they furnish
the material on which the value of the confession is to be
estimated, and the greater the detail, the greater the chances of
a correct estimate. The confession should be recorded in the
manner provided in section 281, Code of Criminal Procedure,
1973, for recording the examination of the accused person.
Every answer given by the accused should be recorded as far as
possible in his own language, and if that is not practicable, in
the language of the Court.
(xiii) The Magistrate should add to the certificate required by
Section 164, Code of Criminal Procedure, a statement in his
own hand, of the grounds on which he believes that the
confession is genuine, the precautions which he took to remove
the accused from the influence of the police, and the time, if
any, given to the accused for reflection.
(xiv) The confession should be recorded in Form No. 35.
The Indian Evidence Act, 1872
Sec.8 Motive, preparation and previous or subsequent
conduct Any fact is relevant which shows or constitutes a
motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any
suit or proceeding, in reference to such suit or proceeding, or
in reference to any fact in issue therein or relevant thereto, and
the conduct of any person an offence against whom is subject
of any proceeding, is relevant, if such conduct influences or is
influenced by any fact ins issue or relevant fact, and whether it
was previous or subsequent thereto.
Explanation 1 The word “conduct” in this section does not
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include statements, unless those statements accompany and
explain acts other than statements, but this explanation is not
to affect the relevancy of statements under any other section of
this Act.
Explanation 2–When the conduct of any person is relevant,
any statement made to him or in his presence and hearing,
which affects such conduct is relevant.
Sec. 9. Facts necessary to explain or introduce relevant facts
Facts necessary to explain or introduce a fact in issue or
relevant fact, or which support or rebut an inference suggested
by a fact in issue or relevant fact, or which establish the
identity of any thing or person whose identity is relevant, or fix
the time or place at which any fact issue or relevant fact
happened, or which show the relation of parties by whom any
such fact was transacted, are relevant in so far as they are
necessary for that purpose.
Sec.10 Things said or done by conspirator in reference to
common design Where there is reasonable ground to believe
that two or more persons have conspired together to commit
an offence or an actionable wrong, anything said, done or
written by any one of such persons in reference to their
common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against
each of the persons believed to so conspiring, as well for the
purpose of providing the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.
Sec. 24 Confession caused by inducement, threat or promise
when irrelevant in criminal proceedings A confession made
by an accused person is irrelevant in a criminal proceeding, if
the making of the confession appears to the Court to have been
caused by any inducement, threat for promise, having
reference to the charge against the accused person, proceeding
from a person in authority and sufficient, in the opinion of the
Court, to give the accused person grounds, which would
appear to him reasonable, for supposing that by making it he
would gain any advantage or avoid any evil of a temporal
nature in reference to the proceedings against him.
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Sec. 25 Confession to police officer not to be proved No
confession made to a police officer shall be proved as against a
person accused of any offence.
Sec. 26 Confession by accused while inProvided also that this
section shall not authorize any Judge to compel any witness to
answer any question or to produce any document which such
witness would be entitled to refuse to answer or produce under
sections 121 to 131, both inclusive, if the question were asked
or the document were called for by the adverse party; nor shall
the Judge.
Provided also that this section shall not authorize any Judge to
compel any witness to answer any question or to produce any
document which such witness would be entitled to refuse to
answer or produce under sections 121 to 131, both inclusive, if
the question were asked or the document were called for by
the adverse party; nor shall the Judge ask any question which
it would be improper for any other person to ask under section
148 or 149; nor shall he dispense with primary evidence of any
document, except in the cases herein before excepted. ask any
question which it would be improper for any other person to
ask under section 148 or 149; nor shall he dispense with
primary evidence of any document, except in the cases herein
before excepted. custody of police not to be proved against
him No confession made by any person whilst he is in the
custody of a police officer, unless it be made in the immediate
presence of a Magistrate,17 shall be proved as against such
person.
[ Explanation In this section “Magistrate” does not include the
head of a village discharging magisterial functions in the
Presidency of Fort St. George or else where, unless such
headman is a Magistrate exercising the power of a Magistrate
under the Code of Criminal Procedure, 1882 (10 of 1882).
Sec.27 How much of information received from accused may
be proved Provided that, when any fact is deposed to as
discovered in consequences of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether if amounts to a
confessions or not, as relates distinctly to the fact thereby
discovered, may be proved.
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Sec.30 Consideration of proved confession affecting person
making it and others jointly under trial for same offence –
When more persons than one or being tried jointly for the same
offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved, the
Court may take into consideration such confession as against
such other person as well as against the person who makes
such confession.
Explanation “Offence”, as used in this section, includes the
abetment of, or attempt to commit the offence]
Sec.45 Opinions of experts – When the Court has to form an
opinion upon a point of foreign law or of science or art, or as
to identity of handwriting or finger impressions, the opinions
upon that point of persons specially skilled in such foreign law,
science or art, or in questions as to identity of handwriting or
finger impressions are relevant facts.
Sec.135 Order of production and examination of witnesses
The order in which witnesses are produced and examined shall
be regulated by the law and practice for the time being relating
to civil and criminal procedure respectively, and, in the
absence of any such law, by the discretion of the Court.
Sec.145 Crossexamination as to previous statements in
writing A witness may be crossexamined as to previous
statements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing being
shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the
writing can be proved, be called to those parts of it which are
to be used for the purpose of contradicting him.
Sec.146 Questions lawful in crossexamination When a
witness is crossexamined, he may, in addition to the questions
herein before referred to, be asked any questions which tend
[1] to test his veracity,
[2] to discover who he is and what is his position in life, or
[3] to shake his credit, by injuring his character, although
the answer to such questions might tend directly or indirectly
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to criminate him or might expose or tend directly or indirectly
to expose him to a penalty or forfeiture.
Sec.147 When witness to be compelled to answer If any
such question relates to a matter relevant to the suit or
proceeding, the provisions of section 132 shall apply thereto.
Sec.148 Court to decide when question shall be asked and
when witness compelled to answer If any such question
relates to a matter not relevant to the suit or proceeding,
except in so far as it affects the credit of the witnesses by
injuring his character, the Court shall decide whether or not
the witness shall be compelled to answer it, and may, if it
thinks fit, warn the witnesses that he is not obliged to answer
it. In exercising its discretion, the Court shall have regard to
the following considerations:
[1] Such questions are proper if they are of such a nature
that the truth of the imputation conveyed by them would
seriously affect the opinion of the Court as to the credibility of
the witness on the matter to which he testifies :
[2] Such questions are improper if the imputation which they
convey relates to matters so remote in time, or of such a
character, that the truth of the imputation would not affect, or
would affect in a slight degree, the opinion of the Court as to
the credibility of the witness on the matter to which he
testifies:
[3] Such questions are improper if there is a great
disproportion between the importance of the imputation made
against the witness’s character and the importance of his
evidence:
[4] The court may, if it sees fit, draw, from the witness’s
refusal to answer, the inference that the answer if given would
be unfavourable.
Sec.149 Question not to be asked without reasonable
grounds No such question as is referred to in section 148
ought to be asked, unless the person asking it has reasonable
grounds for thinking that the imputation which it conveys is
wellfounded.
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Sec. 150 Procedure of Court in case of question being
asked without reasonable grounds If the Court is of opinion
that any such question was asked without reasonable grounds,
it may, if it was asked by any barrister, pleader, vakil or
attorney, report the circumstances of the case to the High
Court or other authority to which such barrister, pleader, vakil
or attorney is the subject in the exercise of his profession.
Sec.151 Indecent and scandalous questions The Court may
forbid any questions or inquiries which it regards as indent or
scandalous, although such questions or inquiries may have
some bearing on the questions before the Court unless they
relate to facts in issue, or to matters necessary to be known in
order to determine whether or not the facts in issue existed.
Sec. 152 Questions intended to insult or annoy The
Court shall forbid any question which appears to it to be
intended to insult or annoy, or which, though proper in itself,
appears to the Court needlessly offensive in form.
Sec. 153 Exclusion of evidence to contradict answers to
questions testing veracity When a witness has been asked
and has answered any question which is relevant to the inquiry
only in so far as it tends to shake his credit by injuring his
character, no evidence shall be given to contradict him, but, if
he answers falsely, he may afterwards be charged with giving
false evidence.
Sec.154 Question by party to his own witness [(1)] The
Court may, in its discretion, permit the person who calls a
witness to put any question to him which might be put in
crossexamination by the adverse party.
[(2) Nothing in this section shall disentitle the person so
permitted under subsection (1), to rely on any part of the
evidence of such witness.]Sec.155 Impeaching the credit of witness The credit of a
witness may be impeached in the following ways by the
adverse party, or with the permission of the Court, by the party
who calls him[1] by the evidence of persons who testify that they, from their
knowledge of the witness believe him to be unworthy of credit;
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[2] By proof that the witnesses has been bribed, or has
accepted the offer of a bribe, or has received any other corrupt
inducement to give his evidence;
[3] By proof of former statements inconsistent with any part
of his evidence which is liable to be contradicted.
Sec.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
component to investigate the fact, may be proved.
Sec. 165. Judge’s power to put questions or order production
The Judge may, in order to discover or to obtain proper proof
of relevant facts, ask any question he pleases, in any form, at
any time, of any witness, or of the parties about any fact
relevant of irrelevant; and may order the production of any
document or thing; and neither the parties nor their agents
shall be entitled to make any objection to any such question or
order, nor, without the leave of the Court, to crossexamine
any witness upon any answer give in reply to any such
question:
Provided that the judgment must be based upon facts declared
by this Act to be relevant, and duly proved.
Provided also that this section shall not authorize any Judge to
compel any witness to answer any question or to produce any
document which such witness would be entitled to refuse to
answer or produce under sections 121 to 131, both inclusive, if
the question were asked or the document were called for by
the adverse party; nor shall the Judge ask any question which
it would be improper for any other person to ask under section
148 or 149; nor shall he dispense with primary evidence of any
document, except in the cases herein before excepted.
PART XIA
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1 The following decisions [i] Tahsildar Singh [supra], [ii]
Masalti [supra], [iii] Rabindra Kumar Pal @Dara Singh [supra], and
[iv] Yakub Abdul Razak Memon [Bombay Blasts, 1993][supra] are
heavily relied on by learned counsels appearing for the defence as well
as learned Special Public Prosecutor and learned Senior Advocate
appearing for the victims.
1.1 The case of Tahsildar Singh [supra] is about object of
Section 162 and proviso of Section 162 of Code, 1973 primarily to serve
interest of accused visavis Section 145 of the Evidence Act. Section
162 of Code, 1973 enacts an absolute bar against the statement made
before a police officer being used for any purpose whatsoever, it enables
the accused to rely upon it for a limited purpose of contradicting a
witness in the manner provided by Section 145 of the Evidence Act by
drawing his attention to parts of the statement intended for
contradiction. It cannot be used for corroboration of a prosecution or a
defence witness or even a Court witness. Nor can it be used for
contradicting a defence or a Court witness. Shortly stated, there is a
general bar against its use subject to a limited exception in the interest
of the accused, and the exception cannot obviously be used to cross the
bar, so stated in paras 11 and 17 of the above judgment. The above
paragraphs and other paragraphs 13, 19 and 22 are about procedure
indicated in Section 145 of the Evidence Act for contradicting witness by
confronting him with his previous statement under Section 162 of the
Code, 1973. The majority view, which reflected under paras 13, 19 and
22 [head notes]. Paras 13, 19 and 22 [head notes], read as under:
“Per Majority (Sinha, Kapur, Sarkar and Subba Rao JJ.) The
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procedure prescribed for contradicting a witness by his
previous statement made during investigation, is that, if it is
intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him. The proviso to S. 162 only enables the
accused to make use of such statement to contradict a
witness in the manner provided by S. 145 of the Evidence
Act. It would be doing violence to the language of the
proviso if the said statement be allowed to be used for the
purpose of crossexamining a witness within the meaning of
the first part of S. 145 of the Evidence Act. The argument
that it would not be possible to invoke the second part of S.
145 of the Evidence Act without putting relevant questions
under the first part thereof cannot be accepted. The second
part of S. 145 of the Evidence Act clearly indicates the
simple procedure to be followed. To illustrate: A says in the
witnessbox that B stabbed C; before the police he had
stated that D stabbed C. His attention can be drawn to that
part of the statement made before the police which
contradicts his statement in the witnessbox. If he admits
his previous statement, no further proof is necessary; if he
does not admit, the practice generally followed is to admit it
subject to proof by the police officer. On the other hand, if
the witness is asked “did you say before the policeofficer
that you saw a gas light ? ” and he answers “yes”, and then
the statement which does not contain such recital is put to
him as contradiction, the procedure involves two fallacies:
one is, it enables the accused to elicit by a process of cross
examination what the witness stated before the police
officer. If a policeofficer did not make a record of a
witness’s statement, his entire statement could be brought
on record. This procedure, therefore, contravenes the
express provision of S. 162 of the Code. The second fallacy
is that there is no selfcontradiction of the primary
statement made in the witnessbox for the witness has yet
not made on the stand any assertion at all which can serve
as the basis. The contradiction, under the section, should be
between what a witness asserted in the witnessbox and
what he stated before the policeofficer, and not between
what he said he had stated before the policeofficer and
what he actually made before him. In such a case the
question could not be put at all: only questions to contradict
can be put and the question here posed does not contradict;
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it leads to an answer which is contradicted by the police
statement,
(Para 13)Section 145 of the Evidence Act indicates the manner in
which contradiction is brought out. The crossexamining
Counsel shall put the part or parts of the statement which
affirms the contrary to what is stated in evidence. This
indicates that there is something in writing which can be set
against another statement made in evidence. If the
statement before the policeofficer and the statement in the
evidence before the Court are so inconsistent or
irreconcilable with each other that both of them cannot co
exist, it may be said that one contradicts the other.
(Para 19)
The word “crossexamination” in the last line of the first
proviso to S. 162 cannot be understood to mean the entire
gamut of crossexamination without reference to the limited
scope of the proviso, but should be confined only to the
crossexamination by contradiction allowed by the said
proviso.
(Para 22)”
However, according to minority view, the reference to section
145 of the Evidence Act brings in the whole of the manner and
machinery of Section 145 and not merely the second part. In this
process, of course, the accused cannot go beyond Section 162 or
ignore what the section prohibits but crossexamination to establish
a contradiction between one statement and another is certainly
permissible.
According to majority view, Section 162 and the proviso of
Code, 1973 “statement in writing”, includes what is implied therein
and does not include incidents, which are expected to be included in
the statement but not included. Paras 18, 20 and 25 of head note
read as under:
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“Per Majority (Sinha, Kapur, Sarkar and Subba Rao JJ.)
Looking at the express words used in S. 162, two sets of
words stand out prominently which afford the key to the
intention of the legislature. They are: “statement in writing”,
and “to contradict”. “Statement” in its dictionary meaning is
the act of stating or reciting. Prima facie a statement cannot
take in an omission. A statement cannot include that which
is not stated. But very often to make a statement sensible or
selfconsistent, it becomes necessary to imply words which
are not actually in the statement. Though something is not
expressly stated, it is necessarily implied from what is
directly or expressly stated.
(Para 18)
It cannot be broadly contended that a statement includes all
omissions which are material and are such as a witness is
expected to say in the normal course. Unrecorded statement
is completely excluded. But recorded one is used for a
specified purpose.
(Para 20)
Omissions unless by necessary implication be deemed to be
part of the statement, cannot be used to contradict the
statement made in the witnessbox; and the view that they
must be in regard to important features of the incident
which are expected to be included in the statement made
before the police is not tenable.
(Para 25)
That views of majority as well as minority are ad idem so far as
limitation prescribed under Section 162 of the Code, 1973 is concerned
while undertaking the process viz. crossexamining the witnesses with
regard to previous statement in writing or part thereof so as to bring out
contradictions under section 145 of the Evidence Act and differs with
regard to applying the entire gamut of crossexamination. According to
the majority view the word “crossexamination” in the last line of the
first proviso to Section 162 cannot be understood to mean the entire
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proviso, but should be confined only to the crossexamination by
contradiction allowed by the said proviso. However, according to
minority view the reference to section 145 of the Evidence Act brings in
the whole of the manner and machinery of Section 145 and not merely
the second part. In this process, of course, the accused cannot go
beyond Section 162 or ignore what the section prohibits but cross
examination to establish a contradiction between one statement and
another is certainly permissible.
1.2 The case of Masalti [supra] is considered and followed by
many other decisions and since the said case law is relied on by learned
counsels appearing for the prosecution as well as defence, we may
advert to the same in the later part of the judgment. In this case,
reference is made to Section 3 of the Evidence Act visavis Sections 302,
141, 142, 143, 144, 145, 146, 147, 148, 149 pertaining to unlawful
assembly and whether person is a member of unlawful assembly, tests to
be applied and also about trustworthiness of a witness is to be judged on
the criteria of trustworthiness and such trustworthy testimony can be
sustained, if it is supported by two or three or more witnesses who give
a consistent account of the incident and quality of the evidence that
matters and not the number of witnesses, who give evidence. Paras 16
and 17 [head notes] of the above judgment read as under:
“It is true that under the Evidence Act, trustworthy evidence
given by a single witness would be enough to convict an
accused person, whereas evidence given by half a dozen
witnesses which is not trustworthy would not be enough to
sustain the conviction, But whereas a criminal court has to
deal with evidence pertaining to the commission of an
offence involving a large number of offenders and a large
number of victims it is usual to adopt the test that the
conviction could be sustained only if it is supported by two
or three or more witnesses who give a consistent account ofPage 475 of 988
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the incident. In a sense, the test may be described as
mechanical; but it cannot be treated as irrational or
unreasonable. It is, no doubt, the quality of the e3vidence
that matters and not the number of witnesses who give
evidence. But sometimes it is useful to adopt a mechanical
test.
[para 16]
That the mere presence in an assembly does not make a
person, who is present, a member of an unlawful assembly
unless it is shown that he had done something or omitted to
do something which would make him a member of an
unlawful assembly, or unless the case falls under S.142,
I.P.C. cannot be read as laying down 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 such an unlawful
assembly. What has to be proved against a person who is
alleged to be a member of an unlawful assembly is that he
was one of the persons constituting the assembly and he
entertained along with the other members of the assembly
the common object as defined by S.141, I.P.C. An assembly
of five or more persons actuated by, and entertaining one or
more of the common objects specified by the five clauses of
S.141, is an unlawful assembly. The crucial question to
determine in such a case is whether the assembly
constituted of five or more persons and whether the said
persons entertained one or more of the common objects as
specified by S. 141. While determining this question, it
becomes relevant to consider whether the assembly
consisted of some persons who were merely passive
witnesses and had joined the assembly as a matter of idle
curiosity without intending to entertain the common object
of the assembly. In fact, S.149 makes it clear 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 knew to
be likely to be committed in prosecution of that object,
every person who, at the time of committing of that offence,
is a member of the same assembly, is guilty of that offence;
and that emphatically brings out the principle that the
punishment prescribed by S.149 is in a sense vicarious and
does not always proceed on the basis that the offence has
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assembly. The observations in [S] AIR 1956 S.C. 181,
explained.
[Para 17]
1.3 In the case of Rabindra Kumar Pal @Dara Singh[supra],
the Apex Court considered and interpreted various case laws and in
paras 57 to 64 held as under:
“57 In Bhagwan Singh v. State of M.P. (2003) 3 SCC 21, while
considering these issues, it was held:
“27 ……The first precaution that a Judicial Magistrate is
required to take is to prevent forcible extraction of
confession by the prosecuting agency (see State of U.P.
v. Singhara Singh, AIR 1964 SC 358). It was also held by
this Court in the case of Shivappa v. State of Karnataka,
(1995) 2 SCC 76 that the provisions of Section 164 CrPC
must be complied with not only in form, but in essence.
Before proceeding to record the confessional
statement, a searching enquiry must be made from the
accused as to the custody from which he was
produced and the treatment he had been receiving in
such custody in order to ensure that there is no scope
for doubt of any sort of extraneous influence
proceeding from a source interested in the
prosecution.
28 It has also been held that the Magistrate in
particular should ask the accused as to why he wants
to make a statement which surely shall go against his
interest in the trial. He should be granted sufficient
time for reflection. He should also be assured of
protection from any sort of apprehended torture or
pressure from the police in case he declines to make a
confessional statement. Unfortunately, in this case,
the evidence of the Judicial Magistrate (PW 1) does
not show that any such precaution was taken before
recording the judicial confession.
29 The confession is also not recorded in questions
and answers form which is the manner indicated in
the criminal court rules.
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30 It has been held that there was custody of the
accused Pooran Singh with the police immediately
preceding the making of the confession and it is
sufficient to stamp the confession as involuntary and
hence unreliable. A judicial confession not given
voluntarily is unreliable, more so when such a confession
is retracted. It is not safe to rely on such judicial
confession or even treat it as a corroborative piece of
evidence in the case. When a judicial confession is found
to be not voluntary and more so when it is retracted, in
the absence of other reliable evidence, the conviction
cannot be based on such retracted judicial confession.
(See Shankaria v. State of Rajasthan, (1978) 3 SCC 435
(para 23)”
58 In Shivappa vs. State of Karnataka (1995) 2 SCC 76,
while reiterating the same principle it was held:“6. From the plain language of Section 164 CrPC and
the rules and guidelines framed by the High Court
regarding the recording of confessional statements of
an accused under Section 164 CrPC, it is manifest that
the said provisions emphasise an inquiry by the
Magistrate to ascertain the voluntary nature of the
confession. This inquiry appears to be the most
significant and an important part of the duty of the
Magistrate recording the confessional statement of an
accused under Section 164 CrPC. The failure of the
Magistrate to put such questions from which he could
ascertain the voluntary nature of the confession
detracts so materially from the evidentiary value of
the confession of an accused that it would not be safe
to act upon the same. Full and adequate compliance
not merely in form but in essence with the provisions
of Section 164 CrPC and the rules framed by the High
Court is imperative and its noncompliance evidence
goes to the root of the Magistrate’s jurisdiction to
record the confession and renders the confession
unworthy of credence. Before proceeding to record the
confessional statement, a searching enquiry must be
made from the accused as to the custody from which
he was produced and the treatment he had been
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is no scope for doubt of any sort of extraneous
influence proceeding from a source interested in the
prosecution still lurking in the mind of an accused. In
case the Magistrate discovers on such enquiry that
there is ground for such supposition he should give
the accused sufficient time for reflection before he is
asked to make his statement and should assure
himself that during the time of reflection, he is
completely out of police influence. An accused should
particularly be asked the reason why he wants to
make a statement which would surely go against his
selfinterest in course of the trial, even if he contrives
subsequently to retract the confession. Besides
administering the caution, warning specifically
provided for in the first part of subsection (2) of
Section 164 namely, that the accused is not bound to
make a statement and that if he makes one it may be
used against him as evidence in relation to his
complicity in the offence at the trial, that is to follow,
he should also, in plain language, be assured of
protection from any sort of apprehended torture or
pressure from such extraneous agents as the police or
the like in case he declines to make a statement and
be given the assurance that even if he declined to
make the confession, he shall not be remanded to
police custody.
7 The Magistrate who is entrusted with the duty
of recording confession of an accused coming from
police custody or jail custody must appreciate his
function in that behalf as one of a judicial officer and
he must apply his judicial mind to ascertain and
satisfy his conscience that the statement the accused
makes is not on account of any extraneous influence
on him. That indeed is the essence of a `voluntary’
statement within the meaning of the provisions of
Section 164 CrPC and the rules framed by the High
Court for the guidance of the subordinate courts.
Moreover, the Magistrate must not only be satisfied as
to the voluntary character of the statement, he should
also make and leave such material on the record in
proof of the compliance with the imperative
requirements of the statutory provisions, as would
satisfy the court that sits in judgment in the case, thatPage 479 of 988
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the confessional statement was made by the accused
voluntarily and the statutory provisions were strictly
complied with.
8 From a perusal of the evidence of PW 17, Shri
Shitappa, Additional Munsif Magistrate, we find that
though he had administered the caution to the appellant
that he was not bound to make a statement and that if
he did make a statement that may be used against him
as evidence but PW 17 did not disclose to the appellant
that he was a Magistrate and that the confession was
being recorded by him in that capacity nor made any
enquiry to find out whether he had been influenced by
anyone to make the confession. PW 17 stated during his
deposition in court: “I have not stated to the accused that
I am a Magistrate” and further admitted: “I have not
asked the accused as to whether the police have induced
them (Chithavani) to give the statement.” The
Magistrate, PW 17 also admitted that “at the time of
recording the statement of the accused no police or
police officials were in the open court. I cannot tell as to
whether the police or police officials were present in the
vicinity of the court”. From the memorandum prepared
by the Munsif Magistrate, PW 17 as also from his
deposition recorded in court it is further revealed that
the Magistrate did not lend any assurance to the
appellant that he would not be sent back to the police
custody in case he did not make the confessional
statement. Circle Police Inspector Shivappa Shanwar,
PW 25 admitted that the subjail, the office of the Circle
Police Inspector and the police station are situated in the
same premises. No contemporaneous record has been
placed on the record to show that the appellant had
actually been kept in the subjail, as ordered by the
Magistrate on 2171986 and that he was out of the zone
of influence by the police keeping in view the location of
the subjail and the police station. The prosecution did
not lead any evidence to show that any jail authority
actually produced the appellant on 2271986 before the
Magistrate. That apart, neither on 2171986 nor on 22
71986 did the Munsif Magistrate, PW 17 question the
appellant as to why he wanted to make the confession or
as to what had prompted him to make the confession. It
appears to us quite obvious that the Munsif Magistrate,Page 480 of 988
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PW 17 did not make any serious attempt to ascertain the
voluntary character of the confessional statement. The
failure of the Magistrate to make a real endeavour to
ascertain the voluntary character of the confession,
impels us to hold that the evidence on the record does
not establish that the confessional statement of the
appellant recorded under Section 164 CrPC was
voluntary. The cryptic manner of holding the enquiry
to ascertain the voluntary nature of the confession has
left much to be desired and has detracted materially
from the evidentiary value of the confessional
statement. It would, thus, neither be prudent nor safe
to act upon the confessional statement of the
appellant…..”
[emphasis supplied]
59 In Dagdu v. State of Maharashtra, (1977) 3 SCC 68, the
following paragraph is relevant:
“51. Learned Counsel appearing for the State is right
that the failure to comply with Section 164(3) of the
Criminal Procedure Code, or with the High Court
Circulars will not render the confessions inadmissible
in evidence. Relevancy and admissibility of evidence
have to be determined in accordance with the
provisions of the Evidence Act. Section 29 of that Act
lays down that if a confession is otherwise relevant it
does not become irrelevant merely because, inter alia,
the accused was not warned that he was not bound to
make it and the evidence of it might be given against
him. If, therefore, a confession does not violate any
one of the conditions operative under Sections 24 to
28 of the Evidence Act, it will be admissible in
evidence. But as in respect of any other admissible
evidence, oral or documentary, so in the case of
confessional statements which are otherwise
admissible, the Court has still to consider whether
they can be accepted as true. If the facts and
circumstances surrounding the making of a confession
appear to cast a doubt on the veracity or voluntariness
of the confession, the Court may refuse to act upon
the confession even if it is admissible in evidence.
That shows how important it is for the Magistrate who
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records the confession to satisfy himself by
appropriate questioning of the confessing accused,
that the confession is true and voluntary. A strict and
faithful compliance with Section 164 of the Code and
with the instructions issued by the High Court affords
in a large measure the guarantee that the confession
is voluntary. The failure to observe the safeguards
prescribed therein are in practice calculated to impair
the evidentiary value of the confessional statements.”
60 In Davendra Prasad Tiwari v. State of U.P., (1978) 4
SCC 474, the following conclusion arrived at by this Court is
relevant:
“13….. It is also true that before a confessional statement
made under Section 164 of the Code of Criminal
Procedure can be acted upon, it must be shown to be
voluntary and free from police influence and that the
confessional statement made by the appellant in the
instant case cannot be taken into account, as it suffers
from serious infirmities in that (1) there is no
contemporaneous record to show that the appellant was
actually kept in jail as ordered on September 6, 1974 by
Shri R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri
R.P. Singh who recorded the so called confessional
statement of the appellant did not question him as to
why he was making the confession and (3) there is also
nothing in the statement of the said Magistrate to show
that he told the appellant that he would not be
remanded to the police lockup even if he did not
confess his guilt. It cannot also be gainsaid that the
circumstantial evidence relied upon by the prosecution
must be complete and incapable of explanation of any
other hypothesis than that of the guilt of the accused.”
61 In Kalawati v. State of H.P., 1953 SCR 546 at 631, this
Court held:
“12 …In dealing with a criminal case where the
prosecution relies upon the confession of one accused
person against another accused person, the proper
approach to adopt is to consider the other evidence
against such an accused person, and if the said evidence
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hold that the said evidence may sustain the charge
framed against the said accused person, the court turns
to the confession with a view to assure itself that the
conclusion which it is inclined to draw from the other
evidence is right.”
62 In State thr. Superintendent of Police, CBI/SIT vs. Nalini
and Others (1999) 5 SCC 253 at 307, the following paragraphs
are relevant which read as under:
“96. What is the evidentiary value of a confession made
by one accused as against another accused apart from
Section 30 of the Evidence Act? While considering that
aspect we have to bear in mind that any confession,
when it is sought to be used against another, has certain
inherent weaknesses. First is, it is the statement of a
person who claims himself to be an offender, which
means, it is the version of an accomplice. Second is,
the truth of it cannot be tested by crossexamination.
Third is, it is not an item of evidence given on oath.
Fourth is, the confession was made in the absence of
the coaccused against whom it is sought to be used.
97. It is wellnigh settled, due to the aforesaid
weaknesses, that confession of a coaccused is a weak
type of evidence. A confession can be used as a
relevant evidence against its maker because Section
21 of the Evidence Act permits it under certain
conditions. But there is no provision which enables a
confession to be used as a relevant evidence against
another person. It is only Section 30 of the Evidence Act
which at least permits the court to consider such a
confession as against another person under the
conditions prescribed therein. If Section 30 was absent
in the Evidence Act no confession could ever have been
used for any purpose as against another coaccused until
it is sanctioned by another statute. So, if Section 30 of
the Evidence Act is also to be excluded by virtue of the
non obstante clause contained in Section 15(1) of TADA,
under what provision can a confession of one accused be
used against another co accused at all? It must be
remembered that Section 15(1) of TADA does not say
that a confession can be used against a coaccused. It
only says that a confession would be admissible in a trial
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of not only the maker thereof but a co accused, abettor
or conspirator tried in the same case.
98 Sir John Beaumont speaking for five Law Lords
of the Privy Council in Bhuboni Sahu v. R., AIR 1949
PC 257 had made the following observations:
“Section 30 seems to be based on the view that
an admission by an accused person of his own
guilt affords some sort of sanction in support of
the truth of his confession against others as well
as himself. But a confession of a coaccused is
obviously evidence of a very weak type. It does
not indeed come within the definition of
`evidence’ contained in Section 3, Evidence Act.
It is not required to be given on oath, nor in the
presence of the accused, and it cannot be tested
by crossexamination. It is a much weaker type
of evidence than the evidence of an approver
which is not subject to any of those infirmities.
Section 30, however, provides that the court
may take the confession into consideration and
thereby, no doubt, makes it evidence on which
the court may act; but the section does not say
that the confession is to amount to proof.
Clearly there must be other evidence. The
confession is only one element in the
consideration of all the facts proved in the case; it
can be put into the scale and weighed with the
other evidence.”
99 The above observations had since been treated
as the approved and established position regarding
confession vis `vis another coaccused. Vivian Bose,
J., speaking for a threeJudge Bench in Kashmira
Singh v. State of M.P., AIR 1952 SC 159 had reiterated
the same principle after quoting the aforesaid
observations. A Constitution Bench of this Court has
followed it in Haricharan Kurmi v. State of Bihar, AIR
1964 SC 1184.”
63 In State of Maharashtra v. Damu (2000) 6 SCC 269,
the same principles had been reiterated which read as under:
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“19. We have considered the above reasons and the
arguments addressed for and against them. We have
realised that those reasons are ex facie fragile. Even
otherwise, a Magistrate who proposed to record the
confession has to ensure that the confession is free from
police interference. Even if he was produced from police
custody, the Magistrate was not to record the confession
until the lapse of such time, as he thinks necessary to
extricate his mind completely from fear of the police to
have the confession in his own way by telling the
Magistrate the true facts.
* * *
25 We may make it clear that in Kashmira Singh this
Court has rendered the ratio that confession cannot be
made the foundation of conviction in the context of
considering the utility of that confession as against a co
accused in view of Section 30 of the Evidence Act. Hence
the observations in that decision cannot be misapplied to
cases in which confession is considered as against its
maker. The legal position concerning confession vis`vis
the confessor himself has been wellnigh settled by this
Court in Sarwan Singh Rattan Singh v. State of Punjab
as under: “In law it is always open to the court to convict
an accused on his confession itself though he has
retracted it at a later stage. Nevertheless usually courts
require some corroboration to the confessional statement
before convicting an accused person on such a
statement. What amount of corroboration would be
necessary in such a case would always be a question of
fact to be determined in the light of the circumstances of
each case.”
This has been followed by this Court in Kehar Singh v.
State (Delhi Admn.)”
64 The following principles emerge with regard to
Section 164 Cr.P.C.:[i] The provisions of Section 164 Cr.P.C. must be
complied with not only in form, but in essence.
[ii] Before proceeding to record the confessional
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statement, a searching enquiry must be made from the
accused as to the custody from which he was produced and
the treatment he had been receiving in such custody in
order to ensure that there is no scope for doubt of any sort
of extraneous influence proceeding from a source interested
in the prosecution.
[iii] A Magistrate should ask the accused as to why he
wants to make a statement which surely shall go against his
interest in the trial.
[iv] The maker should be granted sufficient time for
reflection.
[v] He should be assured of protection from any sort of
apprehended torture or pressure from the police in case he
declines to make a confessional statement.
[vi] A judicial confession not given voluntarily is
unreliable, more so, when such a confession is retracted, the
conviction cannot be based on such retracted judicial
confession.
[vii] Noncompliance of Section 164 Cr.P.C. goes to the
root of the Magistrate’s jurisdiction to record the confession
and renders the confession unworthy of credence.
[viii] During the time of reflection, the accused should be
completely out of police influence. The judicial officer, who is
entrusted with the duty of recording confession, must apply his
judicial mind to ascertain and satisfy his conscience that the
statement of the accused is not on account of any extraneous
influence on him.
[ix] At the time of recording the statement of the accused, no
police or police official shall be present in the open court.
[x] Confession of a coaccused is a weak type of evidence.
[xi] Usually the Court requires some corroboration from the
confessional statement before convicting the accused person on
such a statement”.
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1.4 The Apex Court in the case of Yakub Abdul Razak Memon
[Bombay Blasts, 1993][supra], threadbare considered and analyzed
Sections 120A and Section 120B read with Section 10 of the Evidence
Act ion which earlier decisions on the subject of the Apex Court were
considered in the backdrop of 77 confessions recorded and corroborated
with other circumstances of the case. In juxtaposition to the concept of
conspiracy in criminal law, confessions and statement recorded of
accused or any other person under section 164 of Code, 1973 was also
analyzed and considered and princip0les emerging therein were
enumerated. For better understanding of criminal conspiracy under
Section 120A and confession under Section 164 of the Code, 1973, paras
125 to 157 of the above judgment are reproduced:
“125 Chapter VA of IPC speaks about Criminal Conspiracy.
Section 120A defines criminal conspiracy which is as under:
“Conspiracy
120A Definition of criminal conspiracy. When
two or more persons agree to do, or cause to be done,–
[1] an illegal act, or
[2] an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
Explanation.It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely
incidental to that object.”
126 Section 120B speaks about punishment of criminal
conspiracy which is as under:
“120B. Punishment of criminal conspiracy.–
(1) Whoever is a party to a criminal conspiracy to
commit an offence punishable with death, imprisonment
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or upwards, shall, where no express provision is made in
this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such
offence.
(2) Whoever is a party to a criminal conspiracy other
than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with
imprisonment of either description for a term not
exceeding six months, or with fine or with both.”
Objects and Reasons of the 1913 Amendment
127 The above mentioned sections were introduced by the
amendment of 1913. It is important to notice the Objects and
Reasons of the said amendment to understand that the
underlying purpose of introducing Section 120A was to make
a mere agreement to do an illegal act or an act which is not
illegal by illegal means, punishable. Objects and Reasons are as
follows:
“The sections of the Indian Penal Code which deal
directly with the subject of conspiracy are those
contained in Chapter V and Section 121 A of the Code.
Under the latter provision, it is an offence to conspire to
commit any of the offences punishable by Section 121 of
the Indian Penal Code or to conspire to deprive the King
of sovereignty of British India or any part thereof or to
overawe by means of criminal force or show of criminal
force the Government of India or any Local Government
and to constitute a conspiracy under this Section. It is
not necessary that any act or illegal omission should take
place in pursuance thereof. Under Section 107, abetment
includes engaging with one or more person or persons in
any conspiracy for the doing of a thing, if an act or
illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing. In
other words, except in respect of the offences
particularized in Section 121A conspiracy per se is not
an offence under the Indian Penal Code.”
* * *
“On the other hand, by the common law of England, if
two or more persons agree together to do anything
contrary to law, or to use unlawful means in the carrying
out of an object not otherwise unlawful, the persons,
who so agree, commit the offence of conspiracy. In otherPage 488 of 988
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words, conspiracy in England may be defined as an
agreement of two or more persons to do an unlawful act
or to do a lawful act by unlawful means, and the parties
to such a conspiracy are liable to indictment.”
* * *
"Experience has shown that dangerous
conspiracies have entered into India which have
for their object aims other than the commission of
the offences specified in Section 121A of the
Indian Penal Code and that the existing law is
inadequate to deal with modern conditions. The
present Bill is designed to assimilate the
provisions of the Indian Penal Code to those of the
English law with the additional safeguard that in
the case of a conspiracy other than a conspiracy to
commit an offence some overt act is necessary to
bring the conspiracy within the purview of the
criminal law. The Bill makes criminal conspiracy a
substantive offence, and when such a conspiracy is
to commit an offence punishable with death, or
rigourous imprisonment for a term of two years or
upwards, and no express provision is made in the
Code, provides a punishment of the same nature
as that which might be awarded for the abetment
of such an offence. In all other cases of criminal
conspiracy the punishment contemplated is
imprisonment of either description for a term not
exceeding six months or with fine, or with both.”
128 Prior to the amendment of the Code and the
introduction of Sections 120A and B, the doctrine of agency
was applicable to ascertain the liability of the conspirators,
however, conspiracy in itself was not an offence (except for
certain offences). The amendment made conspiracy a
substantive offence and rendered the mere agreement to
commit an offence punishable. Prior to the amendment, unless
an overt act took place in furtherance of the conspiracy it was
not indictable (it would become indictable by virtue of being
abetment).
129 The proposition that the mere agreement constitutes the
offence has been accepted by this Court in several judgments.
Reference may be made to Major E.G. Barsay V/s. State of
Bombay (1962) 2 SCR 195 wherein this Court held that the
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gist of the offence is an agreement to break the law. The
parties to such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be done has not
been done. It is not an ingredient of the offence that all the
parties should agree to do a single illegal act. It may comprise
the commission of a number of acts. The Court has held as
under: [AIR p.1778, para 31]
“31….Section 120A of the Indian Penal Code defines
“criminal conspiracy” and under that definition, “When
two or more persons agree to do, or cause to be done, an
illegal act, or an act which is not illegal by illegal means,
such an agreement is designated a criminal conspiracy.”
The gist of the offence is an agreement to break the law.
The parties to such an agreement will be guilty of
criminal conspiracy, though the illegal act agreed to be
done has not been done. So too, it is not an ingredient of
the offence that all the parties should agree to do a
single illegal act. It may comprise the commission of a
number of acts. Under Section 43 of the Indian Penal
Code, an act would be illegal if it is an offence or if it is
prohibited by law. Under the first charge the accused are
charged with having conspired to do three categories of
illegal acts, and the mere fact that all of them could not
be convicted separately in respect of each of the offences
has no relevancy in considering the question whether the
offence of conspiracy has been committed. They are all
guilty of the offence of conspiracy to do illegal acts,
though for individual offences all of them may not be
liable.
Theory of Agency and Conspiracy
130 An important facet of the Law of Conspiracy is that apart
from it being a distinct offence, all conspirators are liable for
the acts of each other of the crime or crimes which have been
committed as a result of the conspiracy. This principle has
been recognized right from the early judgment in Regina V/s.
Murphy (1873) 173 ER 502. In the said judgment Coleridge
J. while summing up for the Jury stated as follows: [ER p.508]
“…I am bound to tell you, that although the common
design is the root of the charge, it is not necessary to
prove that these two parties came together and actually
agreed in terms to have this common design and to
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pursue it by comroeff means, and so to carry it into
execution. This is not necessary, because in many cases
of the most clearly established conspiracies there are no
means of proving any such thing and neither law nor
common sense requires that it should be proved. If you
find that these two persons pursued by their acts the
same object, often by the same means, one performing
one part of an act, so as to complete it, with a view to
the attainment of the object which they were pursuing,
you will be at liberty to draw the conclusion that they
have been engaged in a conspiracy to effect that object.
The question you have to ask yourselves is, ‘Had they
this common design, and did they pursue it by these
common means — the design being unlawful?’ it is not
necessary that it should be proved that these defendants
met to concoct this scheme, nor is it necessary that they
should have originated it. If a conspiracy be already
formed, and a person joins it afterwards, he is equally
guilty. You are to say whether, from the acts that have
been proved, you are satisfied that these defendants
were acting in concert in this matter. If you are satisfied
that there was concert between them, I am bound to say
that being convinced of the conspiracy, it is not
necessary that you should find both Mr. Murphy and Mr.
Douglas doing each particular act, as after the fact of
conspiracy is already established in your minds,
whatever is either said or done by either of the
defendants in pursuance of the common design, is, both
in law and in common sense, to be considered as the
acts of both.”
131 Each conspirator can be attributed each others actions in
a conspiracy. Theory of agency applies and this rule existed
even prior to the amendment of the Penal Code in India. This
is reflected in the rule of evidence u/s 10 of the Evidence Act.
Conspiracy is punishable independent of its fruition. The
principle of agency as a rule of liability and not merely a rule
of evidence has been accepted both by the Privy Council as
well as by this Court. The following judgments are relevant for
this proposition:
131.1 Babulal V/s. Emperor, AIR 1938 PC 130,
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“if several persons conspire to commit offences,
and commit overt acts in pursuance of the
conspiracy (a circumstance which makes the act of
one the act of each and all the conspirators) these
acts are committed in the course of the same
transaction, which embraces the conspiracy and
the acts done under it…”
131.2 State of A.P. V/s. Kandimalla Subbaiah
(1962) 1 SCR 194, where this Court opined that where
a number of offences are committed by several persons
in pursuance of a conspiracy it is usual to charge them
with those offences as well as with the offence of
conspiracy to commit those offences, if the alleged
offences flow out of the conspiracy, the appropriate form
of charge would be a specific charge in respect of each
of those offences along with the charge of conspiracy.
131.3 State of H.P. V/s. Krishan Lal Pardhan,
(1987) 2 SCC 17 where it was held that: [SCC pp.2021,
para 8]“8 The offence of criminal conspiracy consists
of meeting of minds of two or more persons for
agreeing to do or causing to be done an illegal act
or an act by illegal means, and the performance of
an act in terms thereof. If pursuant to the criminal
conspiracy the conspirators commit several
offences, then all of them will be liable for the
offences even if some of them had not actively
participated in the commission of the offences”.
131.4 In Nalini (supra), this Court explained that
conspiracy results in a joint responsibility and everything
said written or done in furtherance of the common
purpose is deemed to have been done by each of them.
The Court held: [SCC pp.51518, para 583]
“583. Some of the broad principles governing the
law of conspiracy may be summarized though, as
the name implies, a summary cannot be
exhaustive of the principles.
[1] Under Section 120A IPC offence of
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criminal conspiracy is committed when two or
more persons agree to do or cause to be done
an illegal act or legal act by illegal means. When
it is a legal act by illegal means overt act is
necessary. Offence of criminal conspiracy is an
exception to the general law where intent alone
does not constitute crime. It is intention to
commit crime and joining hands with persons
having the same intention. Not only the
intention but there has to be agreement to carry
out the object of the intention, which is an
offence. The question for consideration in a case
is did all the accused have the intention and did
they agree that the crime be committed. It
would not be enough for the offence of
conspiracy when some of the accused merely
entertained a wish, howsoever horrendous it
may be, that offence be committed.
[2] Acts subsequent to the achieving of the
object of conspiracy may tend to prove that a
particular accused was party to the conspiracy.
Once the object of conspiracy has been
achieved, any subsequent act, which may be
unlawful, would not make the accused a part of
the conspiracy like giving shelter to an
absconder.
[3] Conspiracy is hatched in private or in
secrecy. It is rarely possible to establish a
conspiracy by direct evidence. Usually, both the
existence of the conspiracy and its objects have
to be inferred from the circumstances and the
conduct of the accused.
[4] Conspirators may for example, be
enrolled in a chainA enrolling B, B enrolling C,
and so on; and all will be members of a single
conspiracy if they so intend and agree, even
though each member knows only the person
who enrolled him and the person whom he
enrols. There may be a kind of umbrellaspoke
enrolment, where a single person at the center
does the enrolling and all the other members
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are unknown to each other, though they know
that there are to be other members. These are
theories and in practice it may be difficult to tell
which conspiracy in a particular case falls into
which category. It may however, even overlap.
But then there has to be present mutual
interest. Persons may be members of single
conspiracy even though each is ignorant of the
identity of many others who may have diverse
roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to
agree to play the same or an active role.
[5] When two or more persons agree to
commit a crime of conspiracy, then regardless
of making or considering any plans for its
commission, and despite the fact that no step is
taken by any such person to carry out their
common purpose, a crime is committed by each
and every one who joins in the agreement.
There has thus to be two conspirators and there
may be more than that. To prove the charge of
conspiracy it is not necessary that intended
crime was committed or not. If committed it
may further help prosecution to prove the
charge of conspiracy.
[6] It is not necessary that all conspirators
should agree to the common purpose at the
same time. They may join with other
conspirators at any time before the
consummation of the intended objective, and all
are equally responsible. What part each
conspirator is to play may not be known to
everyone or the fact as to when a conspirator
joined the conspiracy and when he left.
[7] A charge of conspiracy may prejudice the
accused because it forces them into a joint trial
and the court may consider the entire mass of
evidence against every accused. Prosecution has
to produce evidence not only to show that each
of the accused has knowledge of the object of
conspiracy but also of the agreement. In the
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charge of conspiracy the court has to guard
itself against the danger of unfairness to the
accused. Introduction of evidence against some
may result in the conviction of all, which is to
be avoided. By means of evidence in conspiracy,
which is otherwise inadmissible in the trial of
any other substantive offence prosecution tries
to implicate the accused not only in the
conspiracy itself but also in the substantive
crime of the alleged conspirators. There is
always difficulty in tracing the precise
contribution of each member of the conspiracy
but then there has to be cogent and convincing
evidence against each one of the accused
charged with the offence of conspiracy. As
observed by Judge Learned Hand “this
distinction is important today when many
prosecutors seek to sweep within the dragnet of
conspiracy all those who have been associated
in any degree whatever with the main
offenders”.
[8] As stated above it is the unlawful
agreement and not its accomplishment, which is
the gist or essence of the crime of conspiracy.
Offence of criminal conspiracy is complete even
though there is no agreement as to the means
by which the purpose is to be accomplished. It
is the unlawful agreement which is the
gravamen of the crime of conspiracy. The
unlawful agreement which amounts to a
conspiracy need not be formal or express, but
may be inherent in and inferred from the
circumstances, especially declarations, acts and
conduct of the conspirators. The agreement
need not be entered into by all the parties to it
at the same time, but may be reached by
successive actions evidencing their joining of
the conspiracy.
[9] It has been said that a criminal conspiracy
is a partnership in crime, and that there is in
each conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or
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more persons enter into a conspiracy, any act
done by any of them pursuant to the agreement
is, in contemplation of law, the act of each of
them and they are jointly responsible therefore.
This means that everything said, written or
done by any of the conspirators in execution or
furtherance of the common purpose is deemed
to have been said, done or written by each of
them. And this joint responsibility extends not
only to what is done by any of the conspirators
pursuant to the original agreement but also to
collateral acts incidental to and growing out of
the original purpose. A conspirator is not
responsible, however, for acts done by a co
conspirator after termination of the conspiracy.
The joinder of a conspiracy by a new member
does not create a new conspiracy nor does it
change the status of the other conspirators, and
the mere fact that conspirators individually or
in groups perform different tasks to a common
end does not split up a conspiracy into several
different conspiracies.
[10] A man may join a conspiracy by word or
by deed. However, criminal responsibility for a
conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One
who commits an overt act with knowledge of
the conspiracy is guilty. And one who tacitly
consents to the object of a conspiracy and goes
along with other conspirators, actually standing
by while the others put the conspiracy into
effect, is guilty though he intends to take no
active part in the crime.”
132 The offence under Section 120B is a crime between the
parties to do a particular act. Association or relation to lead
conspiracy is not enough to establish the intention to kill the
deceased. To make it clear, to bring home the charge of
conspiracy within the ambit of Section 120B, it is necessary to
establish that there was an agreement between the parties for
doing an unlawful act. It is difficult to establish conspiracy by
direct evidence.
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133 Since conspiracy is hatched in secrecy, to bring home the
charge of conspiracy, it is relevant to decide conclusively the
object behind it from the charges leveled against the accused
and the facts of the case. The object behind it is the ultimate
aim of the conspiracy. Further, many means might have been
adopted to achieve this ultimate object. The means may even
constitute different offences by themselves, but as long as they
are adopted to achieve the ultimate object of the conspiracy,
they are also acts of conspiracy.
134 In Ajay Aggarwal V/s. Union of India, AIR 1993 SC
1637, this Court rejected the submission of the accused that as
he was staying in Dubai and the conspiracy was initially
hatched in Chandigarh and he did not play an active part in
the commission of the acts which ultimately lead to the
incident, thus, could not be liable for any offence, observing:
[SCC pp.61617, para 8]
“8…..Section 120A of the IPC defines ‘conspiracy’ to
mean that when two or more persons agree to do, or
cause to be done an illegal act, or an act which is not
illegal by illegal means, such an agreement is designated
as “criminal conspiracy”. No agreement except an
agreement to commit an offence shall amount to a
criminal conspiracy, unless some act besides the
agreement is done by one or more parties to such
agreement in furtherance thereof. Section 120B of the
IPC prescribes punishment for criminal conspiracy. It is
not necessary that each conspirator must know all the
details of the scheme nor be a participant at every stage.
It is necessary that they should agree for design or object
of the conspiracy. Conspiracy is conceived as having
three elements: (1) agreement (2) between two or more
persons by whom the agreement is effected; and (3) a
criminal object, which may be either the ultimate aim of
the agreement, or may constitute the means, or one of
the means by which that aim is to be accomplished. It is
immaterial whether this is found in the ultimate objects.
The common law definition of ‘criminal conspiracy’ was
stated first by Lord Denman in Jones case (1832) that an
indictment for conspiracy must “charge a conspiracy to
do an unlawful act by unlawful means…..”
The Court, thus, held that an agreement between two or more
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persons to do an illegal act or legal act by illegal means is
criminal conspiracy. Conspiracy itself is a substantive offence
and is distinct from the offence to be committed, for which the
conspiracy was entered into. A conspiracy is a continuing
offence and continues to subsist and is committed wherever
one of the conspirators does an act or series of acts. So long as
its performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity. A
crime is complete as soon as the agreement is made, but it is
not a thing of the moment. It does not end with the making of
the agreement. It will continue so long as there are two or
more parties to it intending to carry into effect the design.
(Vide: Sudhir Shantilal Mehta V/s. Central Bureau of
Investigation, (2009) 8 SCC 1)
135 In Yash Pal Mittal V/s. State of Punjab, AIR 1977 SC
2433, the rule was laid down as follows: [SCC p.543, para 9]
“The very agreement, concert or league is the ingredient
of the offence. It is not necessary that all the
conspirators must know each and every detail of the
conspiracy as long as they are co participators in the
main object of the conspiracy. There may be so many
devices and techniques adopted to achieve the common
goal of the conspiracy and there may be division of
performances in the chain of actions with one object to
achieve the real end of which every collaborator must be
aware and in which each one of them must be
interested. There must be unity of object or purpose but
there may be plurality of means sometimes even
unknown to one another, amongst the conspirators. In
achieving the goal, several offences may be committed
by some of the conspirators even unknown to the others.
The only relevant factor is that all means adopted and
illegal acts done must be and purported to be in
furtherance of the object of the conspiracy even though
there may be sometimes misfire or overshooting by
some of the conspirators.”
136 For an offence under Section 120B IPC, the prosecution
need not necessarily prove that the conspirators expressly
agreed to do or cause to be done the illegal act, the agreement
may be proved by necessary implication. It is not necessary
that each member of the conspiracy must know all the details
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of the conspiracy. The offence can be proved largely from the
inferences drawn from the acts or illegal omission committed
by the conspirators in pursuance of a common design. Being a
continuing offence, if any acts or omissions which constitute an
offence are done in India or outside its territory, the
conspirators continuing to be the parties to the conspiracy and
since part of the acts were done in India, they would obviate
the need to obtain the sanction of the Central Government. All
of them need not be present in India nor continue to remain in
India. The entire agreement must be viewed as a whole and it
has to be ascertained as to what in fact the conspirators
intended to do or the object they wanted to achieve. (Vide:
R.K. Dalmia V/s. Delhi Administration, AIR 1962 SC 1821;
Lennart Schussler & Anr. V/s. Director of Enforcement & Anr.,
(1970) 1 SCC 152; Shivanarayan Laxminarayan Joshi V/s.
State of Maharashtra, (1980) 2 SCC 465 and Mohammad
Usman Mohammad Hussain Maniyar and Another V/s. State of
Maharashtra, AIR 1981 SC 1062)
137 In Yogesh @ Sachin Jagdish Joshi V/s. State of
Maharashtra, (2008) 10 SCC 394, this Court held: [SCC
p.402, para 25]
“25 Thus, it is manifest that the meeting of minds of two
or more persons for doing an illegal act or an act by
illegal means is sine qua non of the criminal conspiracy
but it may not be possible to prove the agreement
between them by direct proof. Nevertheless, existence of
the conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the
accused. But the incriminating circumstances must form
a chain of events from which a conclusion about the
guilt of the accused could be drawn. It is well settled
that an offence of conspiracy is a substantive offence and
renders the mere agreement to commit an offence
punishable, even if an offence does not take place
pursuant to the illegal agreement.”
138 In Nirmal Singh Kahlon V/s. State of Punjab, AIR 2009
SC 984, this Court following Ram Lal Narang V/s. State (Delhi
Admn.), AIR 1979 SC 1791, held that a conspiracy may be a
general one and a separate one, meaning thereby, a larger
conspiracy and a smaller one which may develop in successive
stages.
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139 In K.R. Purushothaman V/s. State of Kerala, (2005) 12
SCC 631, this Court held: [SCC pp.63637, paras 11 & 13]
“11. Section 120A IPC defines ‘criminal conspiracy’.
According to this section when two or more persons
agree to do, or cause to be done (i) an illegal act, or (ii)
an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy.
* * *
13. …..The existence of conspiracy and its objects are
usually deduced from the circumstances of the case and
the conduct of the accused involved in the conspiracy…”
140 In State of Maharashtra V/s. Som Nath Thapa, AIR
1996 SC 1744, this Court held : [SCC p.668, para 24]
“24 …to establish a charge of conspiracy knowledge
about indulgence in either an illegal act or a legal act by
illegal means is necessary. In some cases, intent of
unlawful use being made of the goods or services in
question may be inferred from the knowledge itself. This
apart, the prosecution has not to establish that a
particular unlawful use was intended……The ultimate
offence consists of a chain of actions, it would not be
necessary for the prosecution to establish, to bring home
the charge of conspiracy, that each of the conspirators
had the knowledge of what the collaborator would do,
so long as it is known that the collaborator would put
the goods or service to an unlawful use.”
141 The Apex Court again referred to the case of Nalini
[supra] and relevant portion of paras 583 and 663 read as
under:
“583 ……[1]….. Offence of criminal conspiracy is an
exception to the general law where intent alone does not
constitute crime. It is intention to commit crime and
joining hands with persons having the same intention.
Not only the intention but there has to be agreement to
carry out the object of the intention, which is an offence.
The question for consideration in a case is did all the
accused have the intention and did they agree that thePage 500 of 988
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crime be committed. It would not be enough for the
offence of conspiracy when some of the accused merely
entertained a wish, howsoever horrendous it may be,
that offence be committed.
* * *
[6] It is not necessary that all conspirators should
agree to the common purpose at the same time. They
may join with other conspirators at any time before the
consummation of the intended objective, and all are
equally responsible.
* * *
[7] Prosecution has to produce evidence not only to
show that each of the accused has knowledge of the
object of conspiracy but also of the agreement. In the
charge of conspiracy the court has to guard itself against
the danger of unfairness to the accused……There has to
be cogent and convincing evidence against each one of
the accused charged with the offence of conspiracy.
* * *
[8] it is the unlawful agreement and not its
accomplishment, which is the gist or essence of the
crime of conspiracy. Offence of criminal conspiracy is
complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is
the unlawful agreement which is the gravamen of the
crime of conspiracy. The unlawful agreement which
amounts to a conspiracy need not be formal or express,
but may be inherent in and inferred from the
circumstances, especially declarations, acts and conduct
of the conspirators. The agreement need not be entered
into by all the parties to it at the same time, but may be
reached by successive actions evidencing their joining of
the conspiracy.
* * *
663 The agreement, sine qua non of conspiracy, may
be proved either by direct evidence which is rarely
available in such cases or it may be inferred from
utterances, writings, acts, omissions and conduct of the
parties to the conspiracy which is usually done. In view
of Section 10 of the Evidence Act anything said, done or
written by those who enlist their support to the object of
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before completion of the object in furtherance of their
common intention will be relevant facts to prove that
each one of them can justifiably be treated as a
conspirator.”
[See Also: Kehar Singh & Ors. V/s. State (Delhi Admn.), AIR
1988 SC 1883]
142 In Firozuddin Basheeruddin & Ors. V/s. State of
Kerala, (2001) 7 SCC 596, this Court held: : [SCC pp.60608,
paras 23 & 2527]. See in para 131.8, Nalini (supra) Para 583
is reproduced
“23 Like most crimes, conspiracy requires an act
(actus reus) and an accompanying mental state (mens
rea). The agreement constitutes the act, and the
intention to achieve the unlawful objective of that
agreement constitutes the required mental state…..The
law punishes conduct that threatens to produce the
harm, as well as conduct that has actually produced it.
Contrary to the usual rule that an attempt to commit a
crime merges with the completed offence, conspirators
may be tried and punished for both the conspiracy and
the completed crime. The rationale of conspiracy is that
the required objective manifestation of disposition to
criminality is provided by the act of agreement.
Conspiracy is a clandestine activity. Persons generally do
not form illegal covenants openly. In the interests of
security, a person may carry out his part of a conspiracy
without even being informed of the identity of his co
conspirators.
* * *
25 Conspiracy is not only a substantive crime, it also
serves as a basis for holding one person liable for the
crimes of others in cases where application of the usual
doctrines of complicity would not render that person
liable. Thus, one who enters into a conspiratorial
relationship is liable for every reasonably foreseeable
crime committed by every other member of the
conspiracy in furtherance of its objectives, whether or
not he knew of the crimes or aided in their commission.
The rationale is that criminal acts done in furtherance of
a conspiracy may be sufficiently dependent upon the
encouragement and support of the group as a whole to
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warrant treating each member as a causal agent to each
act. Under this view, which of the conspirators
committed the substantive offence would be less
significant in determining the defendant’s liability than
the fact that the crime was performed as a part of a
larger division of labour to which the accused had also
contributed his efforts.
26 Regarding admissibility of evidence, loosened
standards prevail in a conspiracy trial. Contrary to the
usual rule, in conspiracy prosecutions, any declaration
by one conspirator, made in furtherance of a conspiracy
and during its pendency, is admissible against each co
conspirator. Despite the unreliability of hearsay
evidence, it is admissible in conspiracy
prosecutions………
27 Thus conspirators are liable on an agency theory
for statements of coconspirators, just as they are for the
overt acts and crimes committed by their confréres.”
[See also: State (NCT of Delhi) V/s. Navjot Sandhu @ Afsan
Guru, (2005) 11 SCC 600]
143 In Ram Narayan Popli V/s. Central Bureau of
Investigation, (2003) 3 SCC 641, this Court held: [SCC p.778,
para 342]
“342 …The elements of a criminal conspiracy have
been stated to be: (a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish
that object, (c) an agreement or understanding
between two or more of the accused persons whereby,
they become definitely committed to cooperate for the
accomplishment of the object by the means embodied
in the agreement, or by any effectual means, and (d)
in the jurisdiction where the statute required an overt
act. The essence of a criminal conspiracy is the
unlawful combination and ordinarily the offence is
complete when the combination is framed. From this,
it necessarily follows that unless the statute so
requires, no overt act need be done in furtherance of
the conspiracy, and that the object of the combination
need not be accomplished, in order to constitute an
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indictable offence. Law making conspiracy a crime is
designed to curb immoderate power to do mischief
which is gained by a combination of the means. The
encouragement and support which coconspirators
give to one another rendering enterprises possible
which, if left to individual effort, would have been
impossible, furnish the ground for visiting
conspirators and abettors with condign punishment.
The conspiracy is held to be continued and renewed
as to all its members wherever and whenever any
member of the conspiracy acts in furtherance of the
common design.”
144 In Mohd. Khalid V/s. State of West Bengal, (2002) 7
SCC 334, this Court held: [SCC p.356, para 27]
“27 Where trustworthy evidence establishing all links
of circumstantial evidence is available the confession of
a coaccused as to conspiracy even without corroborative
evidence can be taken into consideration.”
145 In the present case, the conspiracy might have been
started in Dubai but ultimately it continued here in India and a
part of the object was executed in India and even in the
conspiratorial meetings at Dubai, the matter was discussed
with respect to India and amongst Indian citizens. Further, as
far as the present accused is concerned, the fact that he was
constantly present at AlHussaini building, where the major
part of the plans have been made and executed, is established,
and his active involvement has also emerged from the evidence
on record as to how he was dealing with the so called men of
Tiger, managing the ill gotten money of Tiger, booking tickets
and actively working for confirming them for the conspirators.
Further, there is enough evidence of meeting with coaccused
and his actively working in furtherance of the conspiracy. The
present accused need not be present at each and every meeting
for being held to be a part of the conspiracy.
146 Section 10 of the Evidence Act further provides a
unique and special rule of evidence to be followed in cases
of conspiracy. Section 10 reads as under:
“10. Things said or done by conspirator in reference to
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believe that two or more persons have conspired
together to commit an offence or an actionable wrong,
anything said, done or written by any one of such
persons in reference to their common intention, after the
time when such intention was first entertained by any
one of them, is a relevant fact as against each of the
persons believed to so conspiring, as well for the
purpose of proving the existence of the conspiracy as for
the purpose of showing that any such person was a party
to it.”
Illustrations
(i) Reasonable ground exists for believing that A has
joined in a conspiracy to wage war against the
Government of India.
(ii) The facts that B procured arms in Europe for the
purpose of the conspiracy, C collected money in Calcutta
for a like object, D persuaded persons to join the
conspiracy in Bombay, E published writings advocating
the object in view at Agra, and F transmitted from Delhi
to G at Kabul the money which C had collected at
Calcutta, and the contents of a letter written by H giving
an account of the conspiracy, are each relevant, both to
prove the existence of the conspiracy, and to prove A’ s
complicity in it, although he may have been ignorant of
all of them, and although the persons by whom they
were done were strangers to him, and although they
may have taken place before he joined the conspiracy or
after he left it.
147 It is to be seen that there are three conditions in the
Section. One is, before utilizing the section for admitting
certain statements of the co accused from a confession,
there should be a reasonable ground to believe that two or
more persons have conspired together to commit an offence
or an actionable wrong. According to this Section, only
when this condition is satisfied in a given case, then only
the question of utilizing the statement of an accused against
the coaccused can be taken into consideration. Thus, as per
Section 10, the following principles are agreed upon
unanimously:
147.1 There shall be prima facie evidence
affording a reasonable ground for the Court to believe
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that two or more persons were part of a conspiracy to
commit a wrongful act or offence;
147.2 Once this condition was fulfilled, anything
said, done or written by any of its members, in
reference to their common intention, will be
considered as evidence against other coconspirators;
147.3 This fact would be evidence for the
purpose of existence of a conspiracy and that the
persons were a part of such conspiracy.
148 This Court, in Nalini (supra), observed as under:
148.1 Justice Thomas (SCC pp. 31012, para 106113)
Theory of Agency, according to him, is the basic
principle which underlines Section 10 of the Evidence
Act. He says that the first condition for application of
Section 10 is “reasonable ground to believe” that the
conspirators have conspired together based on prima
facie evidence. If this condition is fulfilled, anything said
by any of the conspirators becomes substantive evidence
for the purpose of corroboration if the statement is in
reference to their common intention (This is much wider
than its English counterpart which uses the expression in
furtherance of the common object). The arrest of a
conspirator will not cutoff his connection with the
conspiracy.
148.2 Per Justice Wadhwa [concurring], (SCC pp.51115, para
575581)He was of the opinion that before considering the
principle of Section 10 and applying it to the facts and
circumstances, it is necessary to ascertain the period of
conspiracy because any statement made before or after
the conspiracy is thatched will not be admissible under
the aforesaid section. It would also be relevant against a
person who entered or left the time frame during the
existence of conspiracy.
148.3 Justice Quadri, J. [SCC p.569, paras 663664]
Two conditions are to be followed: firstly, reasonable
ground to believe conspiracy, and secondly, conspiracy is
to commit an offence or an actionable wrong. If both thePage 506 of 988
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conditions exist, then anything said or done can be used
as a relevant fact against one another, to prove the
existence of conspiracy and that the person was a part to
it.
149 In the case on hand, the first condition for applying
Section 10 of the Evidence Act is satisfied by the evidence of
PWs 1 and 2 (approvers). There are 77 confessions in this case
which are voluntary and are corroborated with the other
circumstances of the case. These confessions contain
statements inculpating the makers as well as the coaccused. A
common charge of conspiracy was framed against all the co
conspirators including A1. This is evident from the charges
framed by the Special Judge which we have already extracted.
On all the aforesaid charges, the appellant was found guilty by
the Designated Court. The evidence in respect of A1 is in the
nature of the confessions made by the coaccused persons, the
testimony of prosecution witnesses and documentary evidence
on record.
150 The law on the issue emerges to the effect that
conspiracy is an agreement between two or more persons to
do an illegal act or an act which is not illegal by illegal
means. The object behind the conspiracy is to achieve the
ultimate aim of conspiracy. In order to achieve the ultimate
object, parties may adopt many means. Such means may
constitute different offences by themselves, but so long as
they are adopted to achieve the ultimate object of the
conspiracy, they are also acts of conspiracy. For an offence
of conspiracy, it is not necessary for the prosecution to
prove that conspirators expressly agreed to do an illegal act,
the agreement may be proved by necessary implication. It is
also not necessary that each member of the conspiracy
should know all the details of the conspiracy. Conspiracy is
a continuing offence. Thus, if any act or omission which
constitutes an offence is done in India or outside its
territory, the conspirators continue to be the parties to the
conspiracy. The conspiracy may be a general one and a
smaller one which may develop in successive stages. It is an
unlawful agreement and not its accomplishment, which is
the gist/essence of the crime of conspiracy. In order to
determine whether the conspiracy was hatched, the court is
required to view the entire agreement and to find out as in
fact what the conspirators intended to do.
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151 Jaspal Singh, learned senior counsel for A1, submitted
that from the evidence of PW2 (Approver), it is evident that
various meetings were held on and from 02.02.1993 till
11.03.1993 at various places in and around Bombay. By taking
us through the entire evidence of PW2, he submitted that
neither PW2 nor any other coaccused nor even any
independent witness/evidence spoken to about the role of A1
either being aware of the said meetings or being present in
them or having any knowledge about what conspired in the
said meetings. Though learned senior counsel has vehemently
contended that A1 was neither involved in arranging for
landing of arms and ammunitions nor in conducting surveys
and choosing targets nor in filling vehicles with RDX and arms
nor in the meeting held at Al Hussaini building, the specific
instances as stated by various prosecution witnesses amply
prove his involvement.
153 Apart from the evidence of PW2, several accused
persons in their confessional statements and other witnesses
examined on the side of the prosecution clearly implicate A1
and his involvement in all the events which we are going to
discuss under various heads.
154 It also emerged from the prosecution evidence that
conspiratorial meetings were also held on 06.01.1993 at Hotel
Parsian Darbar, Panvel which were attended by A136, A90,
A102, A134 and Md. Dosa, (AA), middle of January, 1993 at
Dubai attended by A14 and Tiger Memon (AA) and Dawood
Ibrahim (AA) leading to the landing of arms and ammunitions
at Dighi Jetty and Shekhadi. These meetings formed the
genesis of the conspiracy and it was at these meetings that
meeting of minds occurred and knowledge was obtained by
the coconspirators and their intention was expressed to
further the cause of the said conspiracy. Since we have
elaborately discussed the constituents relating to the
conspiracy, there is no need to refer to the same in subsequent
appeals before us. It is also evident that a common charge of
conspiracy was framed against all the accused persons. In view
of the above, we are satisfied that the prosecution has placed
sufficient acceptable materials to prove the charge of
conspiracy beyond reasonable doubt which we will analyse in
the later part of our judgment. Confession
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Confession
155 In this heading, we have to consider the confession
made by accused and coaccused persons relied on by the
prosecution. Before going into the acceptability or otherwise
and merits of the claim made by both the parties relating to
the confession of the accused and coaccused, it is useful to
refer to the relevant provisions of the Code as well as TADA.
156 Section 164 of the Code speaks about recording of
confession and statement which is as under:
“164. Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate
may, whether or not he has jurisdiction in the case,
record any confession or statement made to him in the
course of an investigation under this Chapter or under
any other law for the time being in force, or at any, time
afterwards before the commencement of the inquiry or
trial:
Provided that any confession or statement made under
this subsection may also be recorded by audiovideo
electronic means in the presence of the advocate of the
person accused of an offence:
Provided that no confession shall be recorded by a police
officer on whom any power of a Magistrate has been
conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it
may be used as evidence against him; and the Magistrate
shall not record any such confession unless, upon
questioning the person making it, he has reason to
believe that it is being, made voluntarily.
(3) If at any time before the confession is recorded, the
person appearing before the Magistrate states that he is
not willing to make the confession, the Magistrate shall
not authorize the detention of such person in police
custody.
(4) Any such confession shall be recorded in the manner
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provided in section 281 for recording the examination of
an accused person and shall be signed by the person
making the confession; and the Magistrate shall make a
memorandum at the foot of such record to the following
effect.
“I have explained to (name) that he is not bound
to make a confession and that, if he does so, any
confession he may make may be used as evidence
against him and I believe that this confession was
voluntarily made. It was taken in my presence and
hearing, and was read over to the person making
it and admitted by him to be correct, and it
contains a full and true account of the statement
made by him.
Sd/
A.B.Magistrate”
(5) Any statement (other than a confession) made under
subsection (1) shall be recorded in such manner
hereinafter provided for the recording of evidence as is,
in the opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have
power to administer oath to the person whose statement
is so recorded.
(6) The Magistrate recording a confession or statement
under this section shall forward it to the Magistrate by
whom the case is to be inquired into or tried.”
157 Insofar as interpretation relating to Section 164 of the
Code, particularly, recording of the same and procedures to be
adopted, this very Bench in Rabindra Kumar Pal @ Dara Singh
V/s. Republic of India (2011) 2 SCC 490 after considering
large number of judgments on the issue laid down the
following principles: [SCC pp.52122, para 64]
“(i) The provisions of Section 164 CrPC must be
complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional
statement, a searching enquiry must be made from the
accused as to the custody from which he was
produced and the treatment he had been receiving in
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such custody in order to ensure that there is no scope
for doubt of any sort of extraneous influence
proceeding from a source interested in the
prosecution.
(iii) A Magistrate should ask the accused as to why he
wants to make a statement which surely shall go
against his interest in the trial.
(iv) The maker should be granted sufficient time for
reflection.
(v) He should be assured of protection from any sort
of apprehended torture or pressure from the police in
case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is
unreliable, more so, when such a confession is
retracted, the conviction cannot be based on such
retracted judicial confession.
(vii) Noncompliance with Section 164 CrPC goes to
the root of the Magistrate’s jurisdiction to record the
confession and renders the confession unworthy of
credence.
(viii) During the time of reflection, the accused should
be completely out of police influence. The judicial
officer, who is entrusted with the duty of recording
confession, must apply his judicial mind to ascertain
and satisfy his conscience that the statement of the
accused is not on account of any extraneous influence
on him.
(ix) At the time of recording the statement of the
accused, no police or police official shall be present in
the open court.
(x) Confession of a coaccused is a weak type of
evidence.
(xi) Usually the court requires some corroboration
from the confessional statement before convicting the
accused person on such a statement.”
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[See also Kalawati & Anr. V/s. State of H.P. AIR 1953 SC 131;
Dagdu & Ors. V/s. State of Maharashtra (1977) 3 SCC 68;
Davendra Prasad Tiwari V/s. State of U.P. (1978) 4 SCC 474;
Shivappa V/s. Stae of Karnataka (1995) 2 SCC 76; Nalini
(supra) (1999) 5 SCC 253; State of Maharashtra V/s. Damu
(2000) 6 SCC 269; Bhagwan Singh & Ors. V/s. State of M.P.
(2003) 3 SCC 21; Gurjinder Singh V/s. State of Punjab (2011)
3 SCC 530; Surender Koli V/s. State of Uttar Pradesh & Ors.
(2011) 4 SCC 80; Kulvinder Singh & Anr. V/s. State of
Haryana (2011) 5 SCC 258; and Inspector of Police, T.N. V/s.
John David (2011) 5 SCC 509.]
Law relating to Confessions under TADA
Death Sentence: Paras 854 to 873
PART XIB
Discussion of case law relied on by Mr. J.M.Panchal, learned Special
Public Prosecutor
1 On the question of credibility of injured witnesses reliance
is placed on Mano Dutt & Anr. [supra] and paras 30 and 31 in which
the Apex Court considered earlier decision for the weightage to be
attached by the court to the testimony of an injured witness. Paras 30,
31 and 33 of the judgment read as under:
“30. Salik Ram was examined as PW2 and his statement is
cogent, coherent, reliable and fully supports the case of the
prosecution. However, the other injured witness, Nankoo, was not
examined. In our view, nonexamination of Nankoo, to which the
accused raised the objection, would not materially affect the case
of the prosecution. Normally, an injured witness would enjoy
greater credibility because he is the sufferer himself and thus,
there will be no occasion for such a person to state an incorrect
version of the occurrence, or to involve anybody falsely and in thePage 512 of 988
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bargain, protect the real culprit. We need not discuss more
elaborately the weightage that should be attached by the Court
to the testimony of an injured witness. In fact, this aspect of
criminal jurisprudence is no more res integra, as has been
consistently stated by this Court in uniform language.
31 We may merely refer to the case of Abdul Sayeed v. State of
Madhya Pradesh [(2010) 10 SCC 259], where this Court held as
under:
“28 The question of the weight to be attached to the
evidence of a witness that was himself injured in the
course of the occurrence has been extensively
discussed by this Court. Where a witness to the
occurrence has himself been injured in the incident,
the testimony of such a witness is generally
considered to be very reliable, as he is a witness that
comes with a builtin guarantee of his presence at
the scene of the crime and is unlikely to spare his
actual assailant(s) in order to falsely implicate
someone. “Convincing evidence is required to discredit
an injured witness.” [Vide Ramlagan Singh v. State of
Bihar [(1973)3 SCC 881], Malkhan Singh v. State of
U.P. [[(1975)3 SCC 311], Machhi Singh v. State of
Punjab [(1983)3 SCC 470], Appabhai v. State of
Gujarat [1988 Supp. SCC 241], Bonkya v. State of
Maharashtra [(1995)6 SCC 447], Bhag Singh v. State
of Punjab [(1997)7 SCC 712], Mohar v. State of U.P.
[(2002)7 SCC 606](SCC p. 606bc), Dinesh Kumar v.
State of Rajasthan [(2008)8 SCC 270], Vishnu v. State
of Rajasthan [(2009)10 SCC 477], Annareddy
Sambasiva Reddy v. State of A.P. [(2009)12 SCC 546]
and Balraje v. State of Maharashtra [(2010)6 SCC
673].
29 While deciding this issue, a similar view was taken
in Jarnail Singh v. State of Punjab [(2009)9 SCC719]
where this Court reiterated the special evidentiary status
accorded to the testimony of an injured accused and
relying on its earlier judgments held as under: (SCC pp.
72627, paras 2829)“28 Darshan Singh (PW 4) was an injured witness. He
had been examined by the doctor. His testimony couldPage 513 of 988
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not be brushed aside lightly. He had given full details of
the incident as he was present at the time when the
assailants reached the tubewell. In Shivalingappa
Kallayanappa v. State of Karnataka [1994 Supp (3)
SCC 235] this Court has held that the deposition of the
injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the
basis of major contradictions and discrepancies, for
the reason that his presence on the scene stands
established in case it is proved that he suffered the
injury during the said incident.
29 In State of U.P. v. Kishan Chand [(2004)7 SCC
629] a similar view has been reiterated observing that
the testimony of a stamped witness has its own
relevance and efficacy. The fact that the witness
sustained injuries at the time and place of occurrence,
lends support to his testimony that he was present
during the occurrence. In case the injured witness is
subjected to lengthy crossexamination and nothing can
be elicited to discard his testimony, it should be relied
upon (vide Krishan v. State of Haryana [(2006)12 SCC
459]). Thus, we are of the considered opinion that
evidence of Darshan Singh (PW 4) has rightly been
relied upon by the courts below.”
30 The law on the point can be summarised to the
effect that the testimony of the injured witness is
accorded a special status in law. This is as a
consequence of the fact that the injury to the witness
is an inbuilt guarantee of his presence at the scene of
the crime and because the witness will not want to let
his actual assailant go unpunished merely to falsely
implicate a third party for the commission of the
offence. Thus, the deposition of the injured witness
should be relied upon unless there are strong grounds
for rejection of his evidence on the basis of major
contradictions and discrepancies therein.”
“33 The Court can convict an accused on the
statement of a sole witness, even if he was a relative
of the deceased and thus, an interested party. The
condition precedent to such an order is that the
statement of such witness should satisfy the legalPage 514 of 988
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parameters stated by this Court in a catena of
judgments. Once those parameters are satisfied and
the statement of the witness is trustworthy, cogent
and corroborated by other evidence produced by the
prosecution, oral or documentary, then the Court
would not fall in error of law in relying upon the
statements of such witness. It is only when the Courts
find that the single eyewitness is a wholly unreliable
witness that his testimony is discarded in toto and no
amount of corroboration can cure its defect. Reference
in this regard can be made to the judgment of this
Court, in the case of Anil Phukan v State of Assam
[(1993) 3 SCC 282]”.
[emphasis supplied]
1.1 Thus, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that comes with a built
in guarantee of his presence at the scene of the crime and is unlikely to
spare his actual assailant(s) in order to falsely implicate someone. Unless
convincing evidence is available to discredit an injured witness the court
would rely the testimony of such witness as trustworthy and reliable.
Even, when the statement of sole witness, even if such evidence is a
relative of the deceased and interested party if legal parameters are
satisfied and the statement of such interested and relative witness is
found trustworthy, cogent and corroborated by other evidence produced
by the prosecution, oral or documentary then the court would not fall
into error of law in relying upon the statement of such witness as held in
Balraje v. State of Maharashtra [(2010)6 SCC 673.
2 That the very aspect about evidentiary value of testimony of
injured witness or relevant witness is considered in another decision in
the case of Thoti Manohar [supra] and in paras 30 to 37 of the
judgment, the Apex Court held as under:
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“30. The second submission of the learned counsel for the
appellant is that all the witnesses, being relatives, are interested
witnesses. The occurrence in part took place inside the house and
the rest of it slightly outside the premises of the deceased. Under
these circumstances, the family members and the close relatives
are bound to be the natural witnesses. They intervened and
sustained injuries. Their sustaining of injuries has got support
from the ocular evidence as well as the medical evidence. The
same has been dislodged and if we allow ourselves to say so, not
even a fragile attempt has been made to dislodge the same. By no
stretch of imagination, it can be said that they are chance
witnesses. In the obtaining factual matrix, they are the most
natural witnesses.
31 In this context, we may refer with profit the decision of this
Court in Dalip Singh v. State of Punjab[AIR 1953 SC 364],
wherein Vivian Bose, J., speaking for the Court, observed as
follows: [AIR p.366, para 25] “25 We are unable to agree with the learned Judges of the
High Court that the testimony of the two eyewitnesses
requires corroboration. If the foundation for such an
observation is based on the fact that the witnesses are
women and that the fate of seven men hangs on their
testimony, we know of no such rule. If it is grounded on the
reason that they are closely related to the deceased we are
unable to concur. This is a fallacy common to many criminal
cases and one which another Bench of this Court
endeavoured to dispel in Rameshwar v. The State of
Rajasthan (1952) SCR 377 at p. 390 = (AIR 1952 SC 54 at
page 59).”
32 In the said case, it was further observed that :[Dalip
Singh case, AIR p.366, para 26]“26 A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen
the real culprit and falsely implicate an innocent
person. It is true that when feelings run high and there
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is personal cause for enmity, there is a tendency to
drag in an innocent person against whom a witness has
a grudge along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth”.
33 In Masalti v. State of U.P. [AIR 1965 SC 202], it has
been ruled that normally close relatives of the deceased
would not be considered to be interested witnesses who
would also mention the names of the other persons as
responsible for causing injuries to the deceased.
34. In Hari Obula Reddi v. State of A.P. [(1981)3 SCC
675] [SCC pp. 68384, para 13], a threeJudge Bench has
held that evidence of interested witnesses is not necessarily
unreliable evidence. Even partisanship by itself is not a valid
ground for discrediting or rejecting sworn testimony. It
cannot be laid down as an invariable rule that interested
evidence can never form the basis of conviction unless
corroborated to a material extent in material particulars by
independent evidence. All that is necessary is that the
evidence of interested witnesses should be subjected to
careful scrutiny and accepted with caution. If on such
scrutiny, the interested testimony is found to be intrinsically
reliable or inherently probable, it may, by itself, be sufficient,
in the circumstances of the particular case, to base a
conviction thereon.
35 In Kartik Malhar v. State of Bihar [(1996)1 SCC 614]
[SCC p.621, para 15], it has been opined that a close relative
who is a natural witness cannot be regarded as an interested
witness, for the term ‘interested’ postulates that the witness
must have some interest in having the accused, somehow or
the other, convicted for some animus or for some other
reason.
36 In Pulicherla Nagaraju alias Nagaraja Reddy v. State of
Andhra Pradesh [(2006)11 SCC 444], while dealing with the
liability of interested witnesses who are relatives, a two
Judge Bench observed that : [SCC p.453, para 16]
“16. … it is well settled that evidence of a witness
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cannot be discarded merely on the ground that he is
either partisan or interested or close relative to the
deceased, if it is otherwise found to be trustworthy and
credible.”
The said evidence only requires scrutiny with more care and
caution, so that neither the guilty escapes nor the innocent is
wrongly convicted. If on such careful scrutiny, the evidence is
found to be reliable and probable, then it can be acted upon.
” … If it is found to be improbable or suspicious, it
ought to be rejected. Where the witness has a motive
to falsely implicate the accused, his testimony should
have corroboration in regard to material particulars
before it is accepted. [Pulicherla case, SCC p.453, para
16].
37 Tested on the anvil and touchstone of the aforesaid
principles, we find that the evidence of the injured witnesses
who are close relatives to the deceased have really not
embellished or exaggerated the case of the prosecution. They
are the most natural witnesses and there is nothing on record
to doubt their presence at the place of occurrence. By no
stretch of imagination, it can be stated that the presence of the
said witnesses at the scene of the crime and at the time of
occurrence was improbable. Their version is consistent and
nothing has been suggested to bring any kind of inherent
improbabilities in their testimonies”.
The Apex Court referred to various decisions, including the
decision in the cases of Rameshwar v. State of Rajasthan, AIR 1952 SC
54 and Masalti v. State of U.P., AIR 1965 SC 202]
In the above judgment, it is also held that minor discrepancies not
touching the core of the case of the prosecution, which are not relevant
cannot be discarded on the basis of such discrepancies. The Apex Court
in paras 38 to 40 held as under:
“38 The learned counsel for the appellant has
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endeavoured hard to highlight certain discrepancies
pertaining to time, situation of the land, number of persons,
etc., but in our considered opinion, they are absolutely
minor in nature. The minor discrepancies on trivial matters
not touching the core of the matter cannot bring discredit to
the story of the prosecution. Giving undue importance to
them would amount to adopting a hypertechnical approach.
The Court, while appreciating the evidence, should not
attach much significance to minor discrepancies, for the
discrepancies which do not shake the basic version of the
prosecution case are to be ignored. This has been so held in
State of U.P. v. M.K.Anthony [(1985)1 SCC 505]; Appabhai
and another v. State of Gujarat [1988 Supp. SC 241]; Rammi
alias Rameshwar v. State of Madhya Pradesh [(1999)8 SCC
649]; State of H.P. v. Lekh Raj [(2000)1 SCC 247] and
Laxman Singh v. Poonam Singh [(2004)10 SCC 94] and
Dashrath Singh v. State of U.P.[(2004)7 SCC 408].
39 No evidence can ever be perfect for man is not perfect
and man lives in an imperfect world. Thus, the duty of the
court is to see with the vision of prudence and acceptability
of the deposition regard being had to the substratum of the
prosecution story. In this context, we may reproduce a
passage from the decision of this Court in State of Punjab v.
Jagir Singh [(1974)3 SCC 277], wherein H.R. Khanna, J.,
speaking for the Court, observed thus : [SCC pp. 28586, para
23]“23 A criminal trial is not like a fairy tale wherein
one is free to give flight to one’s imagination and
phantasy. It concerns itself with the question as to
whether the accused arraigned at the trial is guilty of
the crime with which he is charged. Crime is an event
in real life and is the product of interplay of different
human emotions. In arriving at the conclusion about
the guilt of the accused charged with the commission
of a crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although
the benefit of every reasonable doubt should be given
to the accused, the courts should not at the same time
reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature ofPage 519 of 988
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conjectures.”
40 In view of our aforesaid analysis, we are unable to
accept the submission of the learned counsel for the appellant
that the evidence of the eye witnesses should be rejected solely
on the ground that they are close relatives and interested
witnesses”.
3 Case of Suvarnamma & Anr. [supra] was relied on in the
context of well known principles for appreciation of evidence in the
backdrop of the court dealing with a criminal trial and its role while
ascertaining the truth from the material before it and to punish the
guilty and to protect innocent. The above judgment is pressed into
service on the point that any lapse on the part of the investigating
agency though expected to be fair and efficient, any lapse on its part
cannot per se be a ground to throw out the prosecution case, when
convincing evidence to prove case is available. Paras 12, 12.1 to 12.5 of
the judgment read as under:
“12 We may refer to the well known observations from
decisions of this Court :
12.1 Shivaji Sahabrao Bobade vs. State of Maharashtra[(1973)2
SCC 793] : [SCC p.801, para 8]“8. Now to the facts. The scene of murder is rural, the
witnesses to the case are rustics and so their
behavioural pattern and perceptive habits have to be
judged as such. The too sophisticated approaches
familiar in courts based on unreal assumptions about
human conduct cannot obviously be applied to those
given to the lethargic ways of our villages. When
scanning the evidence of the various witnesses we
have to inform ourselves that variances on the fringes,
discrepancies in details, contradictions in narrations
and embellishments in inessential parts cannot
militate against the veracity of the core of the
testimony provided there is the impress of truth andPage 520 of 988
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conformity to probability in the substantial fabric of
testimony delivered. The learned Sessions Judge has
at some length dissected the evidence, spun out
contradictions and unnatural conduct, and tested with
precision the time and sequence of the events
connected with the crime, all on the touchstone of the
medical evidence and the postmortem certificate.
Certainly, the court which has seen the witnesses
depose, has a great advantage over the appellate
Judge who reads the recorded evidence in cold print,
and regard must be had to this advantage enjoyed by
the trial Judge of observing the demeanour and
delivery, of reading the straightforwardness and
doubtful candour, rustic naivete and clever
equivocation, manipulated conformity and ingenious
unveracity of persons who swear to the facts before
him. Nevertheless, where a Judge draws his
conclusions not so much on the directness or dubiety
of the witness while on oath but upon general
probabilities and on expert evidence, the court of
appeal is in as good a position to assess or arrive at
legitimate conclusions as the Court of first instance.
Nor can we make a fetish of the trial Judge’s psychic
insight.”
12.2 Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat
[(1983)3 SCC 217] : [SCC pp. 22223, para 5]
“5. ……….We do not consider it appropriate or
permissible to enter upon a reappraisal or
reappreciation of the evidence in the context of the
minor discrepancies painstakingly highlighted by
learned Counsel for the appellant. Overmuch
importance cannot be attached to minor
discrepancies. The reasons are obvious :
[1] By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
[2] Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has anPage 521 of 988
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element of surprised. The [pic]mental faculties
therefore cannot be expected to be attuned to absorb
the details.
[3] The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person’s mind, whereas it might go unnoticed on the
part of another.
[4] By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect
a witness to be a human taperecorder.
[5] In regard to exact time of an incident, or the
time duration of an occurrence, usually, people make
their estimates by guesswork on the spur of the
moment at the time of interrogation. And one cannot
expect people to make very precise or reliable
estimates in such matters. Again, it depends on the
timesense of individuals which varies from person to
person.
[6] Ordinarily a witness cannot be expected to
recall accurately the sequence of events which takes
place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when
interrogated later on.
[7] A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
crossexamination made by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination
on the spur of the moment. The sub conscious mind
of the witness sometimes so operates on account of
the fear of looking foolish or being disbelieved though
the witness is giving a truthful and honest account of
the occurrence witnessed by him — Perhaps it is a
sort of a psychological defence mechanism activated
on the spur of the moment.”
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12.3 Appabhai vs. State of Gujarat [1988 Supp. SCC 241] :
[SCC pp. 24647, para 13]
“13. ………The court while appreciating the evidence
must not attach undue importance to minor
discrepancies. The discrepancies which do not shake
the basic version of the prosecution case may be
discarded. The discrepancies which are due to normal
errors of perception or observation should not be
given importance. The errors due to lapse of memory
may be given due allowance. The court by [pic]calling
into aid its vast experience of men and matters in
different cases must evaluate the entire material on
record by excluding the exaggerated version given by
any witness. When a doubt arises in respect of certain
facts alleged by such witness, the proper course is to
ignore that fact only unless it goes into the root of the
matter so as to demolish the entire prosecution story.
The witnesses nowadays go on adding
embellishments to their version perhaps for the fear
of their testimony being rejected by the court. The
courts, however, should not disbelieve the evidence of
such witnesses altogether if they are otherwise
trustworthy. Jaganmohan Reddy, J., speaking for this
Court in Sohrab v. State of Madhya Pradesh [(1972)3
SCC 751] observed: [SCC p. 756, para 8 : SCC (Cri) p.
824, para 8]
“8 …This Court has held that falsus in uno
falsus in omnibus is not a sound rule for the
reason that hardly one comes across a witness
whose evidence does not contain a grain of
untruth or at any rate exaggeration, embroideries
or embellishments. In most cases, the witnesses
when asked about details venture to give some
answer, not necessarily true or relevant for fear
that their evidence may not be accepted in respect
of the main incident which they have witnessed
but that is not to say that their evidence as to the
salient features of the case after cautious scrutiny
cannot be considered…..”
12.4 State of Haryana vs. Bhagirath [(1999)5 SCC 96] : [SCC pp.
10001, paras 811]
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“8 It is nearly impossible in any criminal trial to prove
all the elements with a scientific precision. A criminal
court could be convinced of the guilt only beyond the
range of a reasonable doubt. Of course, the expression
“reasonable doubt” is incapable of definition. Modern
thinking is in favour of the view that proof beyond a
reasonable doubt is the same as proof which affords
moral certainty to the Judge.
9 Francis Wharton, a celebrated writer on criminal law
in the United States has quoted from judicial
pronouncements in his book Wharton’s Criminal Evidence
(at p. 31, Vol. 1 of the 12th Edn.) as follows:
“It is difficult to define the phrase ‘reasonable
doubt’. However, in all criminal cases a careful
explanation of the term ought to be given. A
definition often quoted or followed is that given
by Chief Justice Shaw in the Webster case. He
says: ‘It is not mere possible doubt, because
everything relating to human affairs and
depending upon moral evidence is open to some
possible or imaginary doubt. It is that state of
the case which, after the entire comparison and
consideration of all the evidence, leaves the
minds of the jurors in that consideration that
they cannot say they feel an abiding conviction
to a moral certainty of the truth of the charge. ”
10 In the treatise The Law of Criminal Evidence
authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of
the 5th Edn.) thus:
“The doubt to be reasonable must be such a one
as an honest, sensible and fairminded man
might, with reason, entertain consistent with a
conscientious desire to ascertain the truth. An
honestly entertained doubt of guilt is a
reasonable doubt. A vague conjecture or an
inference of the possibility of the innocence of
the accused is not a reasonable doubt. A
reasonable doubt is one which arises from a
consideration of all the evidence in a fair andPage 524 of 988
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reasonable way. There must be a candid
consideration of all the evidence and if, after
this candid consideration is had by the jurors,
there remains in the minds a [pic]conviction of
the guilt of the accused, then there is no room
for a reasonable doubt.”
11 In Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793)] this Court adopted
the same approach to the principle of benefit of doubt
and struck a note of caution that the dangers of
exaggerated devotion to the rule of benefit of doubt at
the expense of social defence demand special emphasis
in the contemporary context of escalating crime and
escape. This Court further said: (SCC p. 799, para 6)
“6 The judicial instrument has a public
accountability. The cherished principles or
golden thread of proof beyond reasonable doubt
which runs through the web of our law should
not be stretched morbidly to embrace every
hunch, hesitancy and degree of doubt.”
12.5 Leela Ram vs. State of Haryana [(1999)9 SCC 525] : [SCC
pp. 53233, para 910]
“9 Be it noted that the High Court is within its
jurisdiction being the first appellate court to
reappraise the evidence, but the discrepancies found
in the ocular account of two witnesses unless they are
so vital, cannot affect the credibility of the evidence of
the witnesses. There are bound to be some
discrepancies between the narrations of different
witnesses when they speak on details, and unless the
contradictions are of a material dimension, the same
should not be used to jettison the evidence in its
entirety. Incidentally, corroboration of evidence with
mathematical niceties cannot be expected in criminal
cases. Minor embellishment, there may be, but
variations by reason therefor should not render the
evidence of eyewitnesses unbelievable. Trivial
discrepancies ought not to obliterate an otherwise
acceptable evidence. In this context, reference may be
made to the decision of this Court in State of U.P. v.
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M.K. Anthony (1985) 1 SCC 505). In para 10 of the
Report, this Court observed: (SCC pp. 51415)
“10 While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole appears
to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the
court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as
to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the
core of the case, hypertechnical approach by
taking sentences torn out of context here or
there from the evidence, attaching importance
to some technical error committed by the
investigating officer not going to the root of the
matter would not ordinarily permit rejection of
the evidence as a whole. If the court before
whom the witness gives evidence had the
opportunity to form the opinion about the
general tenor of evidence given by the witness,
the appellate court which had not this benefit
will have to attach due weight to the
appreciation of evidence by the trial court and
unless there are reasons weighty and
formidable it would not be proper to reject the
evidence on the ground of minor variations or
infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in
some details unrelated to the main incident
because power of observation, retention and
reproduction differ with individuals.”
10 In a very recent decision in Rammi v. State M.P with
Bhura v. State of M.P. (1999) 8 SCC 649) this Court
observed: (SCC p. 656, para 24)
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“24. When an eyewitness is examined at length it is
quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally nondiscrepant. But courts should
bear in mind that it is only when discrepancies in
the evidence of a witness are so incompatible with
the credibility of his version that the court is
justified in jettisoning his evidence. But too serious
a view to be adopted on mere variations falling in
the narration of an incident (either as between the
evidence of two witnesses or as between two
statements of the same witness) is an unrealistic
approach for judicial scrutiny.”
This Court further observed: (SCC pp. 65657, paras 2527)
“25. It is a common practice in trial courts to make
out contradictions from the previous statement of a
witness for confronting him during cross
examination. Merely because there is inconsistency in
evidence it is not sufficient to impair the credit of the
witness. No doubt Section 155 of the Evidence Act
provides scope for impeaching the credit of a
witness by proof of an inconsistent former
statement. But a reading of the section would
indicate that all inconsistent statements are not
sufficient to impeach the credit of the witness. The
material portion of the section is extracted below:
“155. Impeaching credit of witness.–The credit of a
witness may be impeached in the following ways by
the adverse party, or, with the consent of the court,
by the party who calls him–
* * *
[1][2]
[3] by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted;’
26 A former statement though seemingly
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inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Only such of the inconsistent
statement which is liable to be ‘contradicted’
would affect the credit of the witness. Section
145 of the Evidence Act also enables the cross
examiner to use any former statement of the
witness, but it cautions that if it is intended to
‘contradict’ the witness the crossexaminer is
enjoined to comply with the formality
prescribed therein. Section 162 of Code also
permits the crossexaminer to use the previous
statement of the witness (recorded under
Section 161 of the Code) for the only limited
purpose i.e. to ‘contradict’ the witness.
27. To contradict a witness, therefore, must be
to discredit the particular version of the witness.
Unless the former statement has the potency to
discredit the present statement, even if the
latter is at variance with the former to some
extent it would not be helpful to contradict that
witness (vide Tahsildar Singh v. State of U.P.
(AIR (1959) SC 1012).”
3.1 In the above decision, the Apex Court revisited earlier
decisions in the cases of Shivaji Sahabrao Bobde v. State of Maharashtra,
[(1973)2 SCC 793], Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,
[(1983)3 SCC 217], Appabhai v. State of Gujarat [1988 Supp. SCC 241],
Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012].
4 That on the question of identification of accused for the first
time in the court by eye witnesses when they do not know him earlier
and particularly when no Test Identification parade had held, such
evidence though may be treated to be a week in nature, the Apex Court
in the case of Ramanbhai Naranbhai Patel [supra] held that it is not
totally irrelevant or inadmissible. For better appreciation of the above
decision, we reproduce paras 18, 19 and 20 of the said judgment, which
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read as under:
“18 So far this point is concerned, we have gone through the
relevant evidence on record, as noted by the Trial Court as well
as by the High Court. It is true that the injured eyewitnesses
Bhogilal RanchhodbhaiP.W.2 and Karsanbhai Vallabhbhai
P.W.14 tried to identify the accused only in the Court and they
were not knowing them earlier. Another witness Niruben also
did not know them earlier as deposed to by her. It is equally
true that the identification parade was not held but that would
not mean that the witnesses who suffered grievous injuries
were out to rope in wrong accused leaving out real culprits. So
far as witnesses Bhogilal Ranchhodbhai and Karsanbhai
Vallabhbhai are concerned, their evidence cannot be treated to
be totally non est due to absence of identification parade. The
said evidence may be treated to be one of a weak nature but
cannot be said to be totally irrelevant or inadmissible. In this
connection, we may refer to recent decision of this Court in the
case of Rajesh Govind Jagesha and Ors. v. State of
Maharashtra, JT, [1999] 9 SC 1 and in the case of State of
Himachal Pradesh v. Lekh Raj and Anr. JT, [1999] 9 SC 43
wherein it has been observed as under: [SCC p.253, para 3]“……. The evidence of identifying the accused person at
the trial for the first time is, from its very nature,
inherently of a weak character. Identification
proceedings are used for corroboration purposes for
believing that the person brought before the court was
the real person involved in the commission of the crime.
The identification parade even if held, cannot, in all
cases, be considered as safe, sole and trustworthy
evidence on which the conviction of the accused could
be sustained. It is a rule of prudence which is required to
be followed in cases where accused is not known to the
witness or the complainant”.
19 In this connection, learned counsel for the appellants
vehemently relied upon a decision of a three Judge Bench of
this Court in the case of Mohanlal Gangaram Gehani v. State of
Maharashtra, AIR [1982] SC 839 wherein Fazal All, J.,
speaking for the Bench in para 25 of the Report, made the
following observations: [SCC p.707]
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“… P.W.3 (Sheikh) admits at page 22 of the paper book
that he had not seen the accused or any of the three
accused before the date of the incident and that he had
seen all the three for the first time at the time of the
incident. He further admits that the names of me
accused were given to him by the police. In these
circumstances, therefore, if the appellant was not known
to him before the incident and was identified for the first
time in the Court, in the absence of a test identification
parade the evidence of P.W.3 was .valueless and could
not be relied upon…”
20 It becomes at once clear that the aforesaid observations
were made in the light of the peculiar facts and circumstances
wherein the police is said to have given the names of the
accused to the witnesses. Under these circumstances,
identification of such a named accused only in the Court when
the accused was not known earlier to the witness had to be
treated as valueless. The said decision, in turn, relied upon an
earlier decision of this Court in the case of State (Delhi Admn.)
v. V.C. Shukla and another etc., AIR [1980] SC 1382 wherein
also Fazal Ali J., speaking for a three Judge Bench made
similar observations in this regard. In that case the evidence of
the witness in the Court and his identifying the accused only in
the Court without previous identification parade was found to
be a valueless exercise. The observations made therein were
confined to the nature of the evidence deposed to by the said
eyewitnesses. It, therefore, cannot be held, as tried to be
submitted by learned counsel for the appellants, that in the
absence of test identification parade, the evidence of
eyewitness identifying the accused would become inadmissible
or totally useless whether the evidence deserves any credence
or not would always depend on the facts and circumstances of
each case. It is, of course, true as submitted by learned counsel
for the appellants that the later decisions of this Court in the
case of Rajesh Govind Jagesha and Ors. v. State of Maharashtra
and State of Himachal Pradesh v. Lekh Raj and Am., (supra)
had not considered the aforesaid three Judge Bench decisions
of this Court. However, in our view, the ratio of the aforesaid
later decisions of this Court cannot be said to be running
counter to what is decided by the earlier three Judge Bench
judgment on the facts and circumstances examined by the
Court while rendering these decisions. But even assuming as
submitted by learned counsel for the appellants that the
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evidence of these two injured witnesses i.e. Bhogilal
Ranchhodbhai and Karsanbhai Vallabhbhai identifying the
accused in the Court may be treated to be of no assistance to
the prosecution, the fact remains that these eyewitnesses were
seriously injured and they could have easily seen the faces of
the persons assaulting them and their appearance and identity
would well remain imprinted in their minds especially when
they were assaulted in broad day light. They could not be said
to be interested in roping in innocent persons by shielding the
real accused who had assaulted them”.
Thus, when the injured witness, who had seen and also
undergone a deadly attempt and brutal act on the part of the accused,
appearance and identity of such witnesses would remain imprinted in
the mind and in such cases absence of test identification parade and
identifying the accused for the first time in the court cannot be said to be
inadmissible and deserves no credence for establishment of the guilt of
the accused.
5 The case of Malkiat Singh [supra] is in the context of
importance of case diary of the investigation visavis section 172 of the
Code pertaining to diary of proceedings in investigation, we reproduce
herewith paras 10 and 11 for ready reference. The Apex Court also
considered Section 145 of the Evidence Act visavis Section 161 of the
Code, 1973 and limited use of the case diary, it is a record of day today
investigation of the investigating officer.
“10. The evidence on record clearly shows that the defence
has freely used the entries in the case diary as evidence and
marked some portions of the diary for contradictions or
omissions in the prosecution case. This is clearly in negation of
and in the teeth of s.172(3) of the Code. Section 172 reads
thus:
“172 Diary of proceedings in investigation (1) Every police
officer making an investigation under this Chapter shall day byPage 531 of 988
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day enter his proceedings in the investigation in a diary,
setting forthwith the time at which the information reached
him, the time at which he began and closed his investigation,
the place or places visited by him, and a statement of the
circumstances ascertained through his investigation.
[2] Any Criminal Court may send for the police diaries of a
case under inquiry or trial in such Court, and may use such
diaries, not as evidence in the case, but to aid it in such inquiry
or trial.
[3] Neither the accused nor his agents shall be entitled to
call for such diaries, nor shall he or they be entitled to see
them merely because they are referred to by the Court; but, if
they are used by the police officer who made them to refresh
his memory, or if the Court uses them for the purpose of
contradicting such police officer, the provisions of Section 161
or Section 145, as the case may be, of the Indian Evidence Act,
1872 (1 of 1872) shall apply.”
11 It is manifest from its bare reading without subjecting
to detailed and critical analysis that the case diary is only a
record of day to day investigation of the Investigating
Officer to ascertain the statement of circumstances
ascertained through the investigation. Under subs. (2) the
Court is entitled at the trial or enquiry to use the diary not
as evidence in the case, but as aid to it in the inquiry or
trial. Neither the accused, nor his agent, by operation of
subs. (3), shall be entitled to call the diary, nor shall he be
entitled to use it as evidence merely because the Court
referred to it. Only right given thereunder is that if the
police officer who made the entries in the diary uses it to
refresh his memory or if the Court uses it for the purpose of
contradicting such witness, by operation of s.161 of the
Code S. 145 of the Evidence Act, it shall be used for the
purpose of contradicting the witness, i.e. Investigation
Officer or to explain it in re examination by the
prosecution, with permission of the court. It is, therefore,
clear that unless the investigating officer or the Court uses it
either to refresh the memory or contradicting the
investigating officer as previous statement under s.161 that
too after drawing his attention thereto as is enjoined under
s.145 of the Evidence Act. The entries cannot be used by the
accused as evidence. Neither PW5, nor PW6, nor the court
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used the case diary. Therefore, the free use thereof for
contradicting the prosecution evidence is obviously illegal
and it is inadmissible in evidence. Thereby the defence
cannot place reliance thereon. But even if we were to
consider the same as admissible that part of the evidence
does not impinge upon the prosecution evidence.”
6 In the case of Shamshul Kanwar [supra] the Apex Court
considered Section 172 of the Code, 1973 along with Sections 161 and
145 of the Evidence Act. For better appreciation, we reproduce
hereunder paras 10 to 17 of the judgment in which various decisions of
Privy Council and Malkiat Singh vs. State of Punjab [(1991)4 SCC 341]
were considered. That accused gets right to crossexamination the
police officer with regard to factors in case diary when the same is
used by the police officer to refresh his memory or when the court
uses it for the purpose of contradicting police officer and such right
of the accused is up to Sections 145 and 161 of the Code, 1973.
“Section 172 CrPC reads as under:
“172. Diary of proceedings in investigation [1] Every police
officer making an investigation under this chapter shall day by
day enter his proceedings in the investigation in a diary, setting
forth the time at which the information reached him, the time
at which he began and closed the investigation, the place or
places visited by him, and a statement of the circumstances
ascertained through his investigation.
[2] Any Criminal Court may send for the police diaries of a
case under inquiry or trial in such Court, and may use such
diaries, not as evidence in the case, but to aid it in such inquiry
or trial.
[3] Neither the accused nor his agents shall be entitled to
call for such diaries, nor shall he or they be entitled to see
them merely because they are referred to by the Court; but, if
they are used by the police officer who made them to refresh
his memory, or if the Court uses them for the purpose of
contradicting such police officer, the provisions of section 161
or section 145, as the case may be, of the Indian Evidence Act
(1 of 1872) shall apply.”
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This Section firstly lays down that every police officer making
an investigation should maintain a diary of his investigation. It
is well known that each State has its own police regulations or
otherwise known as police standing orders and some of them
provide as to the manner in which such diaries are to be
maintained. These diaries are called case diaries or special
diaries. The Section itself indicates as to the nature of the
entries that have to be made and what is intended to be
recorded is what the police officer did, the places where he
went and the places which he visited etc. and in general it
should contain a statement of the circumstances ascertained
through his investigation. Subsection (2) is to the effect that a
criminal court may send for the diaries and may use them not
as evidence but only to aid in such inquiry or trial. The aid
which the court can receive from the entries in such a diary
usually is confined to utilising the information given therein as
foundation for questions to be put to the witnesses particularly
the police witnesses and the court may, if necessary, in its
discretion use the entries to contradict the police officer who
made them. Coming to their use by the accused, subsection
(3) clearly lays down that neither the accused nor his agents
shall be entitled to call for such diaries nor he or they may be
entitled to see them merely because they are referred to by the
courts. But in case the police officer uses the entries to refresh
his memory or if the court uses them for the purpose of
contradicting such police officer then provisions of Section 161
or Section 145, as the case may be, of the Evidence Act would
apply. Section 145 of the Evidence Act provides for cross
examination of a witness as to the previous statements made
by him in writing or reduced into writing and if it is intended
to contradict him by the writing, his attention must be called to
those parts of it which are to be used for the purpose of
contradiction. Section 161 deals with the adverse party’s rights
as to the production, inspection and crossexamination when a
document is used to refresh the memory of the witness. It can
therefore be seen that the right of accused to crossexamine the
police officer with reference to the entries in the General Diary
is very much limited in extent and even that limited scope
arises only when the court uses the entries to contradict the
police officer or when the police officer uses it for refreshing
his memory and that again is subject to the limitations of
Sections 145 and 161 of the Evidence Act and for that limited
purpose only the accused in the discretion of the court may be
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permitted to peruse the particular entry and in case if the court
does not use such entries for the purpose of contradicting the
police officer or if the police officer does not use the same for
refreshing his memory, then the question of accused getting
any right to use the entries even to that limited extent does not
arise. The accused person is not entitled to require a police
officer to refresh his memory during his examination in court
by referring to the diary. At the most the accused can on a
reasonable basis seek the court to look into the diary and do
the needful within the limits of Section 172 Cr.P.C. However,
the court is not bound to compel the police witness to look at
the diary in order to refresh his memory nor the accused is
entitle to insist that he should do so. If there is such a refusal
what inference should be drawn depends on the facts and
circumstances of each case. Section 172 does not deal with
any recording of statements made by witnesses and what is
intended to be recorded is what the police officer did namely
the places where he went, the people he visited and what he
saw etc. It is Section 161 Cr.P.C. which provides for recording
of such statements. Assuming that there is failure to keep a
diary as required by Section 172 Cr.P.C., the same cannot have
the effect of making the evidence of such police officer
inadmissible and what inference should be drawn in such a
situation depends upon the facts of each case. It is wellsettled
that the entries of the police diary are neither substantive nor
corroborating evidence and they cannot be used by or against
any other witness than the police officer and can only be used
to the limited extent indicated above. The above stated
principles are reiterated in many decisions rendered by the
courts.
11 As early as 1897 the Full Court of the Allahabad High
Court in Queen Empress v. Mannu, ILR Allahabad VoL XIX 390
examined the scope of Section 172 Cr.P.C. and the meaning of
the police diaries and Edge, CJ. who spoke for the Court held
thus:
“Section 172 of the Code of Criminal Procedure provides
for the two events, on the happening of either of which
the accused or his agent is entitled to see the special
diary: and it enacts that, except on the happening on one
of those events, “neither the accused nor his agents, shall
be entitled to call for such diaries, nor shall he or they be
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by the Court.” In my opinion the plain meaning of
section 172 is that the special diary, no matter what it
may contain, is absolutely privileged, unless it is used to
enable the Police officer who made, it to refresh his
memory or is used for the purpose of contradicting him.”
(emphasis supplied)
Coming to the entries that are to be made and the “aid” which
the courts can have, it was further observed:
“A properly kept special diary would afford such
information, and such information would enable the
Magistrate or Judge to determine whether persons
referred to in the special diary, but not sent up as
witnesses by the Police, should be summoned to give
evidence in the interests of the prosecution or of the
accused. It must be always remembered that it is the
duty of the Magistrate or of the Judge before whom a
criminal case is, to ascertain if possible on which side the
truth is, and to decide accordingly.”
12 This view of the Full Bench has been approved by the
Privy Council in Dal Singh v. King Emperor, AIR (1917) PC 25.
The Privy Council while disapproving the use to which the
entries were put to, held thus :
“In other words, they treated what was thus entered, as
evidence which could be used at all events for the
purpose of discrediting these witnesses. In then
Lordships’ opinion, this was plainly wrong. It was
inconsistent with the provisions of section 172 of the
Criminal Code. To use the diary for the purpose they did
was to contravene the rule laid down in Queen Empress
v. Mannu, (1897) 19 All 390 where a full court pointed
out that such a diary may be used to assist the Court
which tries the case by suggesting means of further
concluding points which need clearing up, and which are
material for the purpose of doing justice between the
Crown and the Accused, but not as containing entries
which can by themselves be taken to be evidence of any
date, fact or statement contained in the diary. The police
officer who made the entry may be confronted with it
but not any other witness.”
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13 In Pulukuri Kottaya v. King Emperor, AIR (1947) PC
67 it was laid down that breach of Section 172 does not
amount to any illegality and the same does not vitiate the
trial. In Niranjan Singh and Others v. State of Uttar Pradesh,
AIR (1957) SC 142 it was urged that there was a failure to
comply with para 109 of Chapter 11 of U.P. Police Regulation
which lays down that when the investigation is closed for the
day a copy of the case diary should be sent to the superior
police officers and such failure amounted to infraction of rule
of law. A Bench of three Judges of this Court considered this
aspect and following the ratio in Pulukuri Kottaya‘s case held
as under:
“The Criminal Procedure Code in laying down the
omissions or irregularities which either vitiate the
proceedings or not does not anywhere specifically say
that a mistake committed by a police officer during
the course of the investigation can be said to be an
illegality or irregularity. Investigation is certainly not
an inquiry or trial before the court and the fact that
there is no specific provision either way in Chapter
XLV with respect to omissions or mistakes committed
during the course of investigation except with regard
to the holding of an inquest is, in our opinion, a
sufficient indicating that the legislature did not
contemplate any irregularity in investigation as of
sufficient importance to vitiate or otherwise form any
infirmity in the inquiry or trial.”
14 In Habeeb Mohammad v. The State of Hyderabad,
[1954] SCR 475 it was held thus:
“Section 172 provides that any criminal court my send
for the police diaries of a case under inquiry or trial in
such court and may use such diaries, not as evidence
in the case but to aid it in such inquiry or trial It
seems to us that the learned Judge was in error in
making use of the police diaries at all in his judgment
and in seeking confirmation of his opinion on the
question of appreciation of evidence from statements
contained in those diaries. The only proper use he
could make of these diaries was the one allowed by
section 172, Criminal Procedure Code, i.e., during thePage 537 of 988
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trial he could get assistance from them by suggesting
means of further elucidating points which needed
clearing up and which might be material for the
purpose of doing justice between the State and the
accused.”
In Khatri and Others (IV) v. State of Bihar and Others, [1981]
2 SCC 493 it was held thus: [SCC p.501, para 5]
“The criminal court holding an inquiry or trial of a
case is therefore empowered by subsection (2) of
Section 172 to send for the police diary of the case
and the criminal court can use such diary, not as
evidence in the case, but to aid it in such inquiry or
trial. But, by reason of such section (3) of Section 172,
merely because the case diary is referred to by the
criminal court, neither the accused nor his agents are
entitled to call for such diary nor are they entitled to
see it. If however the case diary is used by the police
officer who has made it to refresh his memory or if the
criminal court uses it for the purpose of contradicting
such police officer in the inquiry or trial, the
provisions of Section 161 or Section 145, as the case
may be, of the Indian Evidence Act would apply and
the accused would be entitled to see the particular
entry in the case diary which has been referred to for
either of these purposes and so much of the diary as
in the opinion of the court is necessary to a full
understanding of the particular entry so used. It will
thus be seen that the bar against production and use
of case diary enacted in Section 172 is intended to
operate only in an inquiry or trial for an offence and
even this bar is a limited bar, because in an inquiry or
trial, the bar does not operate if the case diary is used
by the police officer for refreshing his memory or the
criminal court uses it for the purpose of contradicting
such police officer.”
(emphasis supplied)
16 In Mukand Lal v. Union of India and Another, AIR
(1989) SC 144 it was observed that the court is empowered to
call for relevant case diary if there is any inconsistency or
contradiction arising in the context of the case diary and the
court can use the entries for the purpose of contradicting the
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police officer as provided in Subsection (3) of Section 172
Cr.P.C. Likewise in State of Bihar and Another v. P.P. Sharma,
IAS and Another, [1992] Supp 1 SCC 222 it was observed thus:
[SCC p.256, para 41]
“The only duty cast on the investigation is to maintain a
diary of his investigation, which is known as “Case Diary”
under Section 172 of the Code. The entries in the case
diary are not evidence nor can they be used by the
accused or the Court unless the case comes under
Section 172(3) of the Code. The court is entitled for
perusal to enable it to find out if the investigation has
been conducted on the right lines so that appropriate
directions, if need be, be given and may also provide
materials showing the necessity to summon witnesses
not mentioned in the list supplied by the prosecution
or to bring on record other relevant material which in
the opinion of the court will help it to arrive at a
proper decision in terms of Section 172(3) of the
Code. The primary duty of the police, thus is to collect
and sift the evidence of the commission of the offence to
find whether the accused committed the offence or has
reason to believe to have committed the offence and the
evidence available is sufficient to prove the offence and
to submit his report to the competent Magistrate to take
cognizance of the offence.”
17 Now coming to the rights of the accused regarding the
use of diaries, this Court in Malkiat Singh and Others v. State
of Punjab, [1991] 4 SCC 341 reiterating the view taken in
Mannu’s case and in Khatri’s case (supra) regarding the scope
of section 172 (3) also observed thus:
“The evidence on record clearly shows that the defence
has freely used the entries in the case diary as evidence
and marked some portions of the diary for
contradictions or omissions in the prosecution case. This
is clearly in negation of and in the teeth of Section
172(3) of the Code.
It is manifest from its bare reading without subjecting to
detailed and critical analysis that the case diary is only a
record of day to day investigation of the investigating officer to
ascertain the statement of circumstances ascertained throughPage 539 of 988
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the investigation. Under subsection (2) the court is entitled at
the trial or enquiry to use the diary not as evidence in the case,
but as aid to it in the inquiry or trial. Neither the accused, nor
his agent, by operation of subsection (3), shall be entitled to
call for the diary, nor shall he be entitled to use it as evidence
merely because the court referred to it. Only right given
thereunder is that if the police officer who made the entries in
the diary uses it to refresh his memory or if the court uses it for
the purpose of contradicting such witness, by operation of
Section 161 of the Code and Section 145 of the Evidence Act,
it shall be used for the purpose of contradiction the witness,
i.e. Investigation Officer or to explain it in re examination by
the prosecution, with permission of the court It is, therefore,
clear that unless the investigating officer or the court uses it
either to refresh the memory or contradicting the investigating
officer as previous statement under Section 161 that too after
drawing his attention thereto as is enjoined under Section 145
of the Evidence Act, the entries cannot be used by the accused
as evidence. Neither PW 5 nor PW6, nor the court used the
case diary. Therefore, the free use thereof for contradicting the
prosecution evidence is obviously illegal and it is inadmissible
in evidence. Thereby the defence cannot place reliance
thereon. But even if we were to consider the same as
admissible that part of the evidence does not impinge upon the
prosecution evidence”.
(emphasis supplied)
7 In the case of Akthar & Ors. [supra], the point of non
examination of medical officer was considered in the context of Section
294(3) of the Code, 1973 where genuineness of any document filed by a
party is not disputed by the opposite party and it can be read as
substantive evidence under the above provisions. Para 21 of the
judgment reads as under:
“21 It has been argued that nonexamination of the
concerned medical officers is fatal for the prosecution.
However, there is no denial of the fact that the defence
admitted the genuineness of the injury reports and the post
mortem examination reports before the trial court. So the
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and shall be treated as valid evidence under Section 294 of the
CrPC. It is settled position of law that if the genuineness of any
document filed by a party is not disputed by the opposite party
it can be read as substantive evidence under subSection (3) of
Section 294 CrPC. Accordingly the postmortem report, if its
genuineness is not disputed by the opposite party, the said
postmortem report can be read as substantive evidence to
prove the correctness of its contents without the doctor
concerned being examined.
8 The case of Bhagwan Das [supra] is on the question of the
opinions of the authors which were neither shown nor they were put to
the expert witnesses, it is not a satisfactory way of disposing of the
evidence to discard it on the ground that statements do not accord with
the opinions expressed in the books and in the case of Sunderlal v. State
of Madhya Pradesh [AIR 1954 SC 28(A)], the Apex Court disapproved of
judges drawing conclusions adverse to the accused by relying on such
passages in the absence of their being put to medical witnesses.
9 The case of Piara Singh [supra] is on the point of conflict
between opinions of medical witnesses in the context of Section 45 of
the Evidence Act. The Apex Court held that opinion of that expert which
support direct evidence should be accepted and in the facts of this case
in detail, ocular version of witnesses visavis evidence of FSL experts
deserves to be considered.
10 Again the case of Sanjay Rai [supra] is in the context of
Sections 14 and 45 of the Evidence Act and text books by specialist
authors, the Apex Court held that though such opinions in such text
books may be of considerable assistance and importance for the court in
arriving at the truth they cannot be viewed as either conclusive or final
to to extent of depriving a court of law of its own conclusion on basis of
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peculiar facts actually proved in a given case and that such opinions
cannot be elevated to or placed on higher pedestal than opinion of
expert / medical witness examined in court. In this decision also the
Apex Court considered previous cases in the case of Sunderlal v. State of
M.P. [AIR 1954 SC 28] and Bhagwan Das. v. State of Rajasthan [AIR
1957 SC 589].
11 The case of Santosh Kumar Sikngh [supra] was relied on
the very question that placing reliance on a large number of textbooks
and to give adverse findings on the accuracy of the tests of DNA and
even putting a question to expert witness was held improper by the Apex
Court.
12 The decision in the case of Mehbub Samsuddin Malek
[supra] was relied relied on the context of Section 120A and 120B of the
IPC viz about criminal conspiracy and also about Section 9 of Evidence
Act pertaining to identification in which a bus driver stopped the bus
near a violent mob of persons armed with weapons and had a talk with
mob was held in the circumstances of the case, that there was an
agreement between the accused and the said unlawful assembly which
was established.
13 In the context of sting operation and evidentiary value
thereof case of Mukesh [supra] is relief on in which the Apex Court held
that the expression “previous statement made” used in Section 145 of
the Evidence Act, cannot , in view of Their Lordships be extended to
include statements made by a witness after the filing of the charge sheet.
For the sake of convenience, 2 unnumbered paras are reproduced herein
below:
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“Having carefully considered the submissions made on behalf
of the respective parties, we are inclined to hold that, from the
scheme of the investigation and the materials collected by the
prosecution prior to the filing of the chargesheet 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 chargesheet. In our view,
Section 146 of the Evidence Act also does 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 a statements made
by a witness before the police during investigation and not
thereafter.
Coupled with the above is the fact that the statement made is
not a statement before the Police authorities, as contemplated
under Section 161 of the Code. It is not that electronic
evidence may not be admitted by way of evidence since
specific provision has been made for the same under Section
161 of the Code, as amended, but the question is whether the
same can be used, as indicated in Section 161, for the purposes
of the investigation. If one were to read the proviso to sub
section (3) of Section 161 of the Code, which was inserted
with effect from 31st December, 2009, it will be clear that the
statements made to the police officer under Section 161 of the
Code may also be recorded by audiovideo electronic means,
but the same does not indicate a statement made before any
other authority, which can be used for the purposes of Section
145 of the Evidence Act”.
14 The case of Chandra Prakash [supra] is about Section 120B
of IPC in which investigating agency recovered life time bomb from the
stadium and exposed had occurred in which, the Apex Court considered
decision in the cases of Yogesh @Sachin Jagdish Joshi v. State of
Maharashtra [(2008)10 SC 394], Pratapbhai Hamirbhai Solanki vs.
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State of Gujarat [(2013)1 SCC 613], Yakub Abdul Razak Memon v. The
State of Maharashtra [2013(3) SCALE 565]. In paras 70 to 72 of the
judgment, the Apex Court briefly considered the facets of criminal
conspiracy, which are reproduced herein below, for the sake of
convenience:
“70. While dealing with the facet of criminal conspiracy, it
has to be kept in mind that in case of a conspiracy, there
cannot be any direct evidence. Express agreement between
the parties cannot be proved. Circumstances proved before,
during and after the occurrence have to be considered to
decide about the complicity of the accused. Such a
conspiracy is never hatched in open and, therefore,
evaluation of proved circumstances play a vital role in
establishing the criminal conspiracy. In this context, we may
refer with profit to a passage from Yogesh alias Sachin
Jagdish Joshi v. State of Maharashtra[45]: “20. The basic ingredients of the offence of criminal
conspiracy are: (i) an agreement between two or more
persons; (ii) the agreement must relate to doing or
causing to be done either (a) an illegal act; or (b) an
act which is not illegal in itself but is done by illegal
means. It is, therefore, plain that meeting of minds of
two or more persons for doing or causing to be done
an illegal act or an act by illegal means is sine qua non
of criminal conspiracy. Yet, as observed by this Court
in Shivnarayan Laxminarayan Joshi v. State of
Maharashtra[46] a conspiracy is always hatched in
secrecy and it is impossible to adduce direct evidence
of the common intention of the conspirators.
Therefore, the meeting of minds of the conspirators
can be inferred from the circumstances proved by the
prosecution, if such inference is possible.”
71 The same principles have been stated in Pratapbhai
Hamirbhai Solanki v. State of Gujarat and another.
72 In Yakub Abdul Razak Menon v. The State of Maharashtra,
through CBI, Bombay[48], analyzing various pronouncements,
this Court opined thus:
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“68. For an offence Under Section 120B Indian Penal
Code, the prosecution need not necessarily prove that
the conspirators expressly agreed to do or cause to be
done the illegal act, the agreement may be proved by
necessary implication. It is not necessary that each
member of the conspiracy must know all the details of
the conspiracy. The offence can be proved largely
from the inferences drawn from the acts or illegal
omission committed by the conspirators in pursuance
of a common design. Being a continuing offence, if
any acts or omissions which constitute an offence are
done in India or outside its territory, the conspirators
continuing to be the parties to the conspiracy and
since part of the acts were done in India, they would
obviate the need to obtain the sanction of the Central
Government. All of them need not be present in India
nor continue to remain in India. The entire agreement
must be viewed as a whole and it has to be
ascertained as to what in fact the conspirators
intended to do or the object they wanted to achieve.
(Vide: R.K.Dalmia v. Delhi Administration [[AIR 1962
SC 1821], Lennart Schussler and Anr. v. Director of
Enforcement and Anr. [(1970)1 SCC 152],
Shivanarayan Laxminarayan Joshi v. State of
Maharashtra and Mohammad Usman Mohammad
Hussain Maniyar and Anr. v. State of
Maharashtra[51]).”
Thus, criminal conspiracy is never hatched in open and
evaluation of proved circumstances play a vital role in establishing
the criminal conspiracy.
15 The case of Ajay Agarwal[supra] is about conspiracy under
Section 120A of IPC and that a conspiracy is a continuing offence and
continuous to subsist and committed wherever one of the conspirators
does an act or series of facts. In this decision, the Apex Court was
confronted with requirement of obtaining sanction under section 188 of
the Code when offence is committed outside India and in juxtaposition
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the same facets of conspiracy containing three elements viz. [i]
agreement [ii] between two or more persons by whom the
agreement is effected; and [iii] a criminal object, which may be
either the ultimate aim of the agreement, or may constitute the
means, or one of the means by which that aims to be accomplished.
It is immaterial whether this is found in the ultimate objects. The
Apex Court scanned various definitions even under Law Commission and
various decisions of the Apex Court and in paras 9 to 25 held as under:
“9 This Court in E.G.Barsay v. State of Bombay [1962] 2
SCR at 229, held:
“The (list of the offence is an agreement to break the
law. The parties to such an agreement will be guilty of
criminal conspiracy, though the illegal act agreed to be
done has not been done. So too, it is an ingredient of the
offence that all the parties should agree to do a single
illegal act. It may comprise the commission of a number
of acts. Under section 43 of the Indian Penal Code, an
act would be illegal if fit is an offence or if it is
prohibited by law”.
In Yashpal v. State of Punjab [(1977) SCR 2433] the rule was
laid as follows [para 9]:
“The very agreement, concert or league is the
ingredient of the offence. It is not necessary that all
the conspirators must know each and every detail of
the conspiracy as long as they are coparticipators in
the main object of the conspiracy. There may be so
many devices and techniques adopted to achieve the
common goal of the conspiracy and there may be
division of performances in the chain of actions with
one object to achieve the real end of which every
collaborator must be aware and in which each one of
them must be interested. There must be unity of
object or purpose but there may be plurality of means
sometimes even unknown to one another, amongst
the conspirators. In achieving the goal several
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conspirators even unknown to the others. The only
relevant factor is that all means adopted and illegal acts
done must be and purported to be in furtherance of the
object of the conspiracy even though there may be
sometimes misfire or overshooting by some of the
conspirators”.
10 In Mohammed Usman Mohammad Hussain Manivar &
Anr. v. State of Maharashtra [1981] 3 SCR 68, it was held
that for an offence under section 120B IPC, the prosecution
need not necessarily prove that the conspirators expressly 556
agreed to do or cause to be done the illegal act. the agreement
may be proved by necessary implication. In Noor Mohammed
Yusuf Momin v. State of Maharashtra [1971] 1 SCR 119, it was
held that s. 120B IPC makes the criminal conspiracy as a
substantive offence which offence postulates an agreement
between two or more persons to do or cause to be done an act
by illegal means. If the offence itself is to commit an offence,
no further steps are needed to be proved to carry the
agreement into effect. In R. K. Dalmia & Anr. v. The Delhi
Administration, [1963] 1 SCR 253, it was further held that it is
not necessary that each member of a conspiracy must know all
the details of the conspiracy. In Shivanarayan Laxminarayan &
Ors. State of Mahrashtra & Ors. [1980] 2 SCC 465, this court
emphasized that a conspiracy is always hatched in secrecy and
it is impossible to adduce direct evidence of the same. The
offence can be only proved largely from the inferences drawn
from acts or illegal omission committed by the conspirators in
pursuance of a common design.
11 The question then is whether conspiracy is continuing
offence. Conspiracy to commit crime it self is punishable as a
substantive offence and every individual offence committed
pursuant to the conspiracy is separate and distinct offence
to which individual offenders are liable to punishment,
independent of the conspiracy. Yet, in our considered view,
the agreement does not come to an end with its making, but
would endure till it is accomplished or abandoned or proved
abortive. Being a continuing offence, if any acts or omissions
which constitutesan offence, are done in India or outside its
territory the conspirators continuing to be parties to the
conspiracy and since part of the acts were done in India, they
would obviate the need to obtain sanction of the Central Govt.
all of them need not be present in India nor continue to remain
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in India. In lennart Schussler & Anr. v. Director of
Enforcement & Anr. [1970] 2 SCR 760, a Constitution Bench
of this Court was to consider the question of conspiracy in the
setting of the facts, stated thus:
“A. 2 was the Managing Director of the Rayala
Corporation Ltd. Which manufactures Halda
Typewriters. A. 1 was an Export Manager of ASSAB. A. 1
and A.2 conspired that A.2 would purchase material on
behalf of his Company from ASSAB instead of M/s
Atvidaberos, which provided raw material. A.2 was to
overinvoice the value of the goods by 40 per cent of
true value and that he should be paid the difference of
40 per cent on account of the aforesaid overinvoicing by
crediting it to A.2’s personal account at Stockholm in a
Swedish Bank and requested A. 1 to help him in opening
the account in Swenska Handles Banken, Sweden and to
have further 557 deposits to his personal account from
ASSAB. A. 1 agreed to act as requested by A.2 and A.2
made arrangements with ASSAB to intimate to A. 1 the
various amounts credited to A.2’s account and asked A. 1
to keep a watch over the correctness of the account and’
to further intimate to him the account position from
time to time through unofficial channels and whenever
A. 1 come to India. A. 1 agreed to comply with this
request. This agreement was entered into between the
parties in the year 1963 at Stockholm and again in
Madras in the year 1965. The question was whether Sec.
120B of the Indian Penal Code was attracted to these
facts”.
12 Per majority, Jaganmohan Reddy, J. held that the gist of
the offence defined in s. 120A IPC, which is itself punishable
as a substantive offence is the very agreement between two or
more persons to do or cause to be done an illegal act or legal
act by illegal means, subject, however, to the proviso that
where the agreement is not an agreement to commit an
offence, the agreement does not amount to a conspiracy unless
it is followed up by an overt act done by one or more persons
in pursuance of such an agreement. There must be a meeting
of minds in the doing of the illegal act or the doing of a legal
act by illegal means. If. in furtherance of the conspiracy,
certain persons are induced to do an unlawful act without the
knowledge of the conspiracy or the plot they cannot be held to
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be conspirators, though they may be guilty of an offence
pertaining to the specific unlawful act. The offence of
conspiracy is complete when two or more conspirators have
agreed to do or cause to be done an act which is itself an
offence, in which case no overt act need be established. It was
contended in that regard that several acts which constitute to
make an offence under s. 120B may be split up in parts and
the criminal liability of A. 1 must only be judged with regard to
the part played by him. He merely agreed to help A.2 to open
an account in the Swedish Bank, having the amounts lying to
the credit of A.2 with Atvidaberg to that account and to help
A.2 by keeping a watch over the account. Therefore, it does not
amount to a criminal conspiracy. While negating the argument,
this court held thus [AIR 1970 SC 549 at p.555, para 9]:
“It appears to us that this is not a justifiable contention,
because what has to be seen is whether the agreement
between A. 1 and A.2 is a conspiracy to do or continue
to do something which is illegal and, if it is, it is
immaterial whether the agreement to do any of the acts
in furtherance of the commission of the offence do not
strictly amount to an offence. the entire agreement must
be viewed as a whole and it has to be ascertained as to
what in fact the conspirators intended to do or the object
they wanted to achieve”.
13 Thus, this court, though not in the context of
jurisdictional issue, held that the agreement not illegal at its
inception would become illegal by subsequent conduct and
an agreement to do an illegal act or to do a legal act by
illegal means, must be viewed as a whole and not in
isolation. It was also implied that the agreement shall
continuing till the object is achieved. The agreement does
not get terminated by merely entering into an agreement
but it continues to subsist till the object is either achieved or
terminated or abandoned.
14 In Abdul Kader v. State AIR 1964 Bombay 133, a
conspiracy was formed in South Africa by appellants to cheat
persons by dishonestly inducing them to deliver money in the
Indian currency by using forced documents and the acts of
cheating were committed in India. When the accused were
charged with the offence of conspiracy, it was contended that
the conspiracy was entered into and was completed in South
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Africa and, therefore, the Indian Courts had no jurisdiction to
try the accused for the offence of conspiracy. The Division
Bench held that though the conspiracy was entered in a foreign
country and was completed as soon as the agreement was
made, yet it was treated to be a continuous offence and the
persons continued to be parties to the conspiracy when they
committed acts in India. Accordingly, it was held that the
Indian Courts had jurisdiction to try the offence of conspiracy.
In U.S. v. Kissal (1909) 218 US 601, Holmes, J. held that
conspiracy is a continuous offence and stated “is a perversion
of natural thought and of natural language to call such
continuous cooperation of a cinema to graphic series of
distinct conspiracies rather than to call it a single one… a
conspiracy is a partnership in criminal purposes. That as such it
may have continuation in time. is shown by the rule that overt
act by one partner may be the act of all without any new
agreement specifically directed to that act”. In Ford v. U. S.
(1926) 273 US 593 at 620 to 622, Tuft, C.J. held that
conspiracy is a continuing offence.
15 In Director of public Prosecutions v. Door and Ors. 1973
Appeal Cases 807 (H.L.), the five respondents hatched a plan
abroad, i.e. Belgium and Morocco and worked out the details
to import cannabis into the United States via England, In
pursuance thereof two vans with cannabis concealed in them
were shipped from Morocco to Southampton; the other van
was traced at Liverspool, from where the vans were to have
been shipped to America and the cannabis in it was found.
They were charged among other offences with conspiracy to
import dangerous drugs. At the trial, the respondents
contended that the Courts in England had no jurisdiction to try
them on the count of conspiracy since the conspiracy had been
entered into abroad. While rejecting the contention, Lord
Wilberforce held (at page 817)
“The present case involves international elements the
accused are 559 aliens and the conspiracy was initiated
abroad but there can be no question here of any breach
of any rules of international law if the) are prosecuted in
this country. Under the objective territorial principle
( use the terminology of the Harward Research in Inter
national Law) or the principle of University (For the
prevention of the trade in narcotics falls within this
description)or both, the courts of this country have a
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clear right, if not a duty, to prosecute in accordance with
our municipal law. The position as it is under the
international law it not, however, determinative of the
question whether, under our municipal law, the acts
committed amount to a crime. That has to be decided on
different principles. If conspiracy to import drugs were a
statutory offence, the question whether foreign
conspiracies were included would be decided upon the
terms of the statute. Since it is (if at all) a common law
offence, this question must be decided upon principle
and authority In my opinion, the key to a decision for or
against the offence charged can be found in an answer
to the question why the common law treats certain
actions as crimes. And one answer must certainly be
because the actions in question are a threat to the
Queen’s peace or as we would now perhaps say, to
society. Judged by this test, there is every reason for,
and none that I can see against, the prosecution.
Conspiracies are intended to be carried into effect, and
one reason why, in addition to individual prosecution of
each participant, conspiracy charges are brought is
because criminal action organised and executed, in
concert is more dangerous than an individual breach of
law. Why, then, restrain from prosecution where the
relevant concert was, initially, formed outside the United
Kingoom?…The truth is that, in the normal case of a
conspiracy carried out, or partly carried out, in this
country, the location of the formation of the agreement
is irrelevant; the attack upon the laws of this country is
identical wherever the conspirators happened to
commit; the “conspiracy” is a complex formed indeed,
but not separately completed, at the first meeting of the
plotters”.
[emphasis supplied]
16 Viscount Dilhorne at page 823 laid the rule that:
“a conspiracy does not end with the making of the
agreement. It will continue so long as there are two or
more parties to it intending to carry out the design. It
would be highly unreal to say that the conspiracy to
carry out the Gunpower plot was completed when the
conspirators met and agreed to the plot at Catesby”.
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At page 825B it was concluded thus:
“The conclusion to which I have come after
consideration of these authorities and of many other to
which the House was referred but to which I do not
think it is necessary to refer is that though the offence of
conspiracy is complete when the agreement to do
unlawful act is made and it is not necessary for the
prosecution to do more than prove the making of such
an agreements conspiracy does not end with the making
of the agreement. It continues so long as the parties to
the agreement intended to carry it out….”
Lord Pearson at page 827 held that:
“a conspiracy involved an agreement express or
implied. A conspiratorial agreement is not a contract,
not legally binding because it is unlawful. But as an
agreement it has its three stages, namely, [1] making
or formation; [2] performance or implementation; [3]
discharge or termination. When the conspiratorial
agreement has been made, the offence of conspiracy is
complete, it has been committed, and the conspirator
can be prosecuted even though no performance had
taken place. But the fact that the offence of
conspiracy is complete at that stage does not mean
that the conspiratorial agreement is finished with. It
is not dead. If it is being performed, it is very much
alive. So long as the performance continues, ti is
operating, it is being carried out by the conspirators,
and it is governing or at any rate influencing their
conduct. The conspiratorial agreement continues in
operation and therefore in existence until it is
discharged (terminated) by completion of its
performance or by abandonment or frustration or,
however, it may be”.
Lord Salmon at page 833 observed:
“If a conspiracy is entered into abroad to commit a
crime in England, exactly the same public mischief is
produced by it as if it had been entered into here. It is
unnecessary for me to consider what the position
might be if the conspirators came to England for anPage 552 of 988
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entirely innocent purpose unconnected with the
conspiracy. If however, the conspirators come here and
do acts in furtherance of the conspiracy, for example, by
preparing to commit the planned crime it cannot, in my
view, be considered contrary to the rules of international
comity for the forces of law and order in England to
protect the Queen’s peace by arresting them and putting
them in trial for conspiracy whether they are British
subjects or foreigners and whether or not conspiracy is a
crime under the law of the country in which the
conspiracy was born”.
17 At page 835 it was held that the respondents conspired
together in England notwithstanding the fact that they were
abroad when they entered into the agreement which was the
essence of the conspiracy. That agreement was and remained a
continuing agreement and they continued to conspire until the
offence they were conspiring to commit was in fact committed.
Accordingly, it was held that the conspiracy, though entered
into abroad, was committed in England and the courts in
England and jurisdiction. The ratio emphasizes that acts done
in furtherance of continuing conspiracy constitute part of the
cause of action and performance of it gives jurisdiction for
English Courts to try the accused.
18 In Trecy v. Director of Public Prosecutions 1971 Appeal
Cases 537 at 563 (HL) the facts of the case were that the
appellant therein posted in the Isle of Wright a letter written
by him and addressed to Mrs. X in West Germany demanding
money with menaces. The letter was received by Mrs. X in
West Germany. The appellant was charged with black mail
indictable s. 21 of the Theft Act, 1968. While denying the
offence, it was contended that the courts in England were
devoted of jurisdiction. Overruling the said objection, Lord
Diplock at page 562 observed:
“The State is under a correlative duty to those who owe
obedience to its laws to protect their interests and one of
the purposes of criminal law is to afford such protection
by determining by threat of punishment conducted by
other persons which is calculated to hand to those
interests. Comity gives no right to a State to insist that
any person may with immunity do physical acts in its
own territory which have harmful consequences toPage 553 of 988
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persons within the territory of another state. It may be
under no obligation in comity to punish those acts itself,
but it has no ground from complaint in international law
if the State in which the harmful consequences had their
effect punishes, when they do enter its territories,
persons who did such acts”.
19 Prof. Williams, Glanville in his article “Venue and the
Ambit of Criminal Law [1965] LQR 518 at 528 stated thus:
“Sometimes the problem of determining the place of the
crime is assisted by the doctrine of the continuing crime.
Some crimes are regarded as being of a continuing
nature, and they may accordingly be prosecuted in any
jurisdiction in which they are partly committed the
partial commission being, in the eye of the law, a total
commission’.
20 In the context of conspiracy under the caption inchoate
crimes” It was stated:
“The general principle seems to be that jurisdiction over
an inchoate crime appertains to the State that would
have had jurisdiction had the crime been consummated”.
Commenting upon the ratio laid down in Board of Trade v.
Owen [1957] Appeal Cases 602, he stated at page 534 thus
“The seems to follow owen as logical corollary that our
courts will assume jurisdiction to punish a conspiracy
entered into abroad to commit a crime here. Although
the general principle is that crime committed abroad do
not become punishable here merely because their evil
effects occur here, there may be an exception for
inchoate crimes aimed against persons in this country.
Since conspiracy is the widest and vaguest of the
inchoate crimes, it seems clearly that the rule for
conspiracy must apply to more limited crimes of
incitement and attempt also”.
21 At page 535 he further stated that “the rule of inchoate
crimes is therefore an exception from the general principle of
territorial jurisdiction. The crime is wholly committed in the
State A, yet is justiciable also in State B”. At page 535 he
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elucidated that “certain exceptions are recognised or
suggested”. Lord Tucker in own’s case (supra) illustrated that a
conspiracy D 2 England to violate the laws of a foreign country
might be justiciable here if the preferments the conspiracy
charged would produce a public mischief within the State or
injure a person here by causing him damage, abroad”. At page
536 be stated that “as another exception from the rule in Board
of, Trade v. Owen (supra it seems from the earlier decision
that a conspiracy entered into here will be punishable if the
conspirators contem plates that the illegality may be performed
either within British jurisdiction or abroad even though, in the
event, the illegality is performed abroad”. His statement of law
now receives acceptance by House of Lords in Doot’s case.
22 In Halsbury’s Law of England, third edition, vol. 10,
page 327, para 602, while dealing with continuing offence it
was stated as under:
“A criminal enterprise may consist of continuing act
which is done in more places than one or of a series of
acts which are done in several places. In such cases,
though there is one criminal enterprise, there may be
several crimes, and a crime is committed in each place
where a complete criminal act is performed although the
act may be only a part of the enterprise”.
It was further elucidated in para 603 that:
“What constitutes a complete criminal act is determined
by the nature of the crime. Thus, as regards continuing
acts, in the case of sending by post or otherwise a
libellous or threatening letter, or a letter to provoke a
breach of the peace, a crime is committed, both where
the letter is posted or otherwise sent, and also where it is
received, and the venue may be laid in either place.
23 Archbold in Criminal Pleadings, Evidence and
Practice, 42nd edition (1985) Chapter 23, in para 2832 at p.
2281, Wright on Conspiracies and Agreements at pages 7374,
Smith on Crimes at page 239 and Russel on Crime, 12th
edition, page 613 stated that conspiracy is a continuing offence
and liable to prosecution at the place of making the agreement
and also in the country where the acts are committed.
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24 Thus, an agreement between two or more persons to do
an illegal act or legal acts by illegal means is criminal
conspiracy. If the agreement is not an agreement to commit an
offence, it does not amount to conspiracy unless it is followed
up by an overt act done by one or more persons in furtherance
of the agreement. The offence is complete as soon as there is
meeting of minds and unity of purpose between the
conspirators to do that illegal act or legal act by illegal means.
Conspiracy itself is a substantive offence and is distinct from
the offence to commit which the conspiracy is entered into. It
is undoubted that the general conspiracy is distinct from
number of separate offences committed while executing the
offence of conspiracy. Each act constitutes separate offence
punishable, independent of the conspiracy. The law had
developed several or different models or technics to broach the
scope of conspiracy. One such model is that of a chain, where
each party performs even without knowledge of other a role
that aids succeeding parties in accomplishing the criminal
objectives of the conspiracy. An illustration, of a single
conspiracy, its parts bound together as links in a chain, is 564
the process of procuring and distributing narcotics or an illegal
foreign drug for sale in different parts of the (,lobe. In such a
case, smugglers, middlemen and retailers are privies to a single
conspiracy to smuggle and distribute narcotics. The smugglers
knew that the middlemen must sell to retailers, and the
retailers knew that the middlemen must buy of importers of
someone or another. Thus the conspirators at one end of the
chain knew that the unlawful business would not, and could
not, stop with their buyers, and those at the other end knew
that it had not begun with their settlers. The accused
embarked upon a venture in all parts of which each was a
participant and an abettor in the sense that, the success of the
part with which he was immediately concerned, was
dependent upon the success of the whole. It should also be
considered as a spoke in the hub. There is a rim to bind all the
spokes to gather in a single conspiracy. It is not material that a
rim is found only when there is proof that each spoke was
aware of one another’s existence but that all promoted in
furtherance of some single illegal objective. The traditional
concept of single agreement can also accommodate the
situation where a well defined group conspires to commit
multiple crimes so long as all these crimes are the objects of
the same agreement or continuous conspiratorial relationship,
and the conspiracy continues to subsist though it was entered
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in the first instance. Take for instance that three persons
hatched a conspiracy in country ‘A’ to kill ‘D’ in country ‘B’ with
explosive substance. As far as conspiracy is concerned, it is
complete in country ‘A’ one of them pursuant thereto carried
the explosive substance and hands it over to third one in the
country ‘B’ who implants at a place where ‘D’ frequents and got
exploded with remote control. ‘D’ may be killed or escape or
may be diffused. The conspiracy continuestill it is executed in
country ‘B’ or frustrated. Therefore, it is a continuing act and
all are liable for conspiracy in country ‘B’ though first two are
liable to murder with aid of s. 120B and the last one is liable
under s. 302 or 307 IPC, as the case may be. Conspiracy may
be considered to be a march under a banner and a person may
join or drop out in the march without the necessity of the
change in the text on the banner. In the comity of International
Law, in these days, committing offences on international scale
is a common feature. The offence of conspiracy would be a
useful weapon and there would exist no conflict in municipal
laws and the doctrine of autre fois convict or acquit would
extend to such offences. The comity of nations are duty bound
to apprehend the conspirators as soon as they set their feet on
the country territorial limits and nip the offence in the bud.
25 A conspiracy thus, is a continuing offence and
continues to subsist and committed wherever one of the
conspirators does an act or series of acts. So long as its
performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity. A
crime is complete as soon as the agreement is made, but it is
not a thing of the moment. It does not end with the making
of the 565 agreement. It will continue so long as there are
two or more parties to it intending to carry into effect the
design. Its continuance is a threat to the society against
which it was aimed at and would be dealt with as soon as
that jurisdiction can properly claim the power to do so. The
conspiracy designed or agreed abroad will have the same
effect as in India, when part of the acts, pursuant to the
agreement are agreed to be finalised or done, attempted or
even frustrated and vice versa”.
16 The case of Pargan Singh [supra] was relied with regard
to identification of accused before the court after lapse of 7 years of
the incident. Paras 15 and 16 of the decision reads as under:
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“15 Before entering upon the discussion on this aspect
specific to this case, we would like to make some general
observations on the theory of “memory”. Scientific
understanding of how memory works is described by
Geoffrey R. Loftus while commenting upon the judgment
dated January 16, 2002 rendered in the case of Javier
Suarez Medina v. Janie Cockrell by United States Court of
Appeals, Fifth Circuit in Case No.0110763. He has explained
that a generally accepted theory of this process was first
explicated in detail by Neisser (1967) and has been
continually refined over the intervening quartercentury.
The basic tenets of the theory are as follows: First, memory
does not work like a video recorder. Instead, when a person
witnesses some complex event, such as a crime, or an
accident, or a wedding, or a basketball game, he or she
acquires fragments of information from the environment.
These fragments are then integrated with other information
from other sources. Examples of such sources are:
information previously stored in memory that leads to prior
expectations about what will happen, and informationboth
information from external sources, and information
generated internally in the form of inferences that is
acquired after the event has occurred. The result of this
amalgamation of information is the person’s memory for the
event. Sometimes this memory is accurate, and other times
it is inaccurate. An initial memory of some event, once
formed, is not “cast in concrete.” Rather, a memory is a
highly fluid entity that changes, sometimes dramatically,
with the passage of time. Every time a witness thinks about
some eventrevisits his or her memory of itthe memory
changes in some fashion. Such changes take many forms.
For instance, a witness can make inferences about how
things probably happened, and these inferences become
part of the memory. New information that is consistent with
the witness’s beliefs about what must have happened can be
integrated into the memory. Details that do not seem to fit a
coherent story of what happened can be stripped away. In
short, the memory possessed by the witness at some later
point (e.g., when the witness testifies in court) can be quite
different from the memory that the witness originally
formed at the time of the event. Memory researchers study
how memory works using a variety of techniques. A
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which memory is inaccurate versus circumstances under
which memory is accurate. These efforts have revealed four
major sets of circumstances under which memory tends to
be inaccurate. The first two sets of circumstances involve
what is happening at the time the toberemembered event
is originally experienced, while the second two sets of
circumstances involve things that happen after the event has
ended. The first set of circumstances involves the state of
the environment at the time the event is experienced.
Examples of poor environmental conditions include poor
lighting, obscured or interrupted vision, and long viewing
distance. To the degree that environmental conditions are
poor, there is relatively poor information on which to base
an initial perception and the memory that it engenders to
begin with. This will ultimately result in a memory that is at
best incomplete and, as will be described in more detail
below, is at worst systematically distorted. The second set of
circumstances involves the state of the observer at the time
the event is experienced. Examples of suboptimal observer
states include high stress, perceived or directly inflicted
violence, viewing members of different races, and diverted
attention. As with poor environmental factors, this will
ultimately result in a memory that is at best incomplete and,
as will be described in more detail below, is at worst
systematically distorted. The third set of circumstances
involves what occurs during the retention interval that
intervenes between the toberemembered event and the
time the person tries to remember aspects of the event.
Examples of memorydistorting problems include a lengthy
retention interval, which leads to forgetting, and inaccurate
information learned by the person during the retention
interval that can get incorporated into the person’s memory
for the original event. The fourth set of circumstances
involves errors introduced at the time of retrieval, i.e., at the
time the person is trying to remember what he or she
experienced. Such problems include biased tests and leading
questions. They can lead to a biased report of the person’s
memory and can also potentially change and bias the
memory itself.
16 While discussing the present case, it is to be borne in
mind that the manner in which the incident occurred and
description thereof as narrated by PW2, has not been
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believed because of lapse of time. Instead, the appellants have
joined issue on a very limited aspects viz. their identification
on the ground that faces of the culprits could not have been
remembered after 7½ years of the occurrence as memory fades
by that time”.
17 The case of Devender Pal Singh [supra] is in the context of
Section 120A and 120B of the IPC in which the Apex court considered
the definition of criminal conspiracy under section 120A and in paras 39
to 51 and held as under:
“39 120A When two or more persons agree to do, or cause
to be done[1] an illegal act, or
[2] an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.”
40 The element of a criminal conspiracy have been stated
to be: (a) an object to be accomplished, (b) a plan or scheme
embodying means to accomplish that object, (c) an agreement
or understanding between two or more of the accused persons
whereby they become definitely committed to cooperate for
the accomplishment of the object by the means embodied in
the agreement, or by any effectual means, (d) in the
jurisdiction where the statute required an overt act. The
essence of a criminal conspiracy is the unlawful combination
and ordinarily the offence is complete when the combination is
framed. From this, it necessarily follows that unless the statute
so requires, no overt act need be done in furtherance of the
conspiracy, and that the object of the combination need not be
accomplished, in order to constitute an indictable offence. Law
making conspiracy a crime is designed to curb immoderate
power to do mischief which is gained by a combination of the
means. The encouragement and support which coconspirators
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give to one another rendering enterprises possible which, if left
to individual effort, would have been impossible,furnish the
ground for visiting conspirators and abettors with condign
punishment. The conspiracy is held to be continued and
renewed as to all its members wherever and whenever any
member of the conspiracy acts in furtherance of the common
design. (See American Jurisprudence Vol.II Section 23, p.
559). For an offence punishable under Section
120B,prosecution need not necessarily prove that the
perpetrators expressly agree to do or cause to be done illegal
act; the agreement may be proved by necessary implication.
Offence of criminal conspiracy has its foundation in an
agreement to commit an offence. A conspiracy consists not
merely in the intention of two or more, but in the agreement
of two or more to do an unlawful act by unlawful means. So
long as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect, the very plot
is an act in itself, and an act of each of the parties, promise
against promise, actus contra actum, capable of being
enforced, if lawful,punishable if for a criminal object or for use
of criminal means.
41 No doubt in the case of conspiracy there cannot be any
direct evidence. The ingredients of offence are that there
should be an agreement between persons who are alleged to
conspire and the said agreement should be for doing an illegal
act or for doing illegal means an act which itself may not be
illegal. Therefore, the essence of criminal conspiracy is an
agreement to do an illegal act and such an agreement can be
proved either by direct evidence or by circumstantial evidence
or by both, and it is a matter of common experience that direct
evidence to prove conspiracy is rarely available. Therefore, the
circumstances proved before, during and after the occurrence
have to be considered to decide about the complicity of the
accused.
42 In Halsbury’s Laws of England (Vide 4 th Ed., Vol. 11,
page 44, para58), the English Law as to conspiracy has been
stated thus
“Conspiracy consists in the agreement of two or more
persons to do an unlawful act, or to do a lawful act by
unlawful means. It is an indictable offence at common
law,the punishment for which is imprisonment or fine or
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both in the discretion of the Court.
The essence of the offence of conspiracy is the fact of
combination by agreement. The agreement may be
express or implied, or in part express and in part
implied. The conspiracy arises and the offence is
committed as soon as the agreement is made; and the
offence continues to be committed so long as the
combination persists, that is until the conspiratorial
agreement is terminated by completion of its
performance or by abandonment or frustration or
however, it may be. The actus reus in a conspiracy is the
agreement to execute the illegal conduct, not the
execution of it. It is not enough that two or more
persons pursued the same unlawful object at the same
time or in the same place; it is necessary to show a
meeting of minds, a consensus to effect an unlawful
purpose. It is not, however, necessary that each
conspirator should have been in communication with
every other.”
43 There is no difference between the mode of proof of the
offence of conspiracy and that of any other offence, it can be
established by direct or circumstantial evidence. [See
Bhagwan Swarup etc. etc. v. State of Maharashtra (AIR 1965
SC 682 at p. 686)].
44 Privacy and secrecy are more characteristics of a
conspiracy, then of a loud discussion in an elevated place open
to public view. Direct evidence in proof of a conspiracy is
seldom available, offence of conspiracy can be proved by either
direct or circumstantial evidence. Its not always possible to
give affirmative evidence about the date of the formation of
the criminal conspiracy, about the persons who took part in
the formation of the conspiracy, about the object, which the
objectors set before themselves as the object of conspiracy, and
abut the manner in which the object of conspiracy is to be
carried out, all this is necessarily a matter of inference.
45 The provisions of Sections 120A and 120B, IPC have
brought the law of conspiracy in India in line with the
English Law by making the ovet act unessential when the
conspiracy is to commit any punishable offence. The English
Law on this matter is wellsettled. Russell on Crime(12 Ed.
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Vol.1, p.202) may be usefully noted
“The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor
in inciting others to do them, but in the forming of the
scheme or agreement between the parties agreement is
essential. Mere knowledge, or even discussion, of the
plan is not, per se,enough.”
46 Glanville Williams in the “Criminal Law” (Second Ed
p.382) states
“The question arose in an Iowa case, but it was discussed
in terms of conspiracy rather than of accessoryship. D,
who had a grievance against P. told E that if he would
whip P someone would pay his fine. E replied that he
did not want anyone to pay this fine. that he had a
grievance of his own against P and that he would whip
him at the first opportunity. E whipped P. D was
acquitted of conspiracy because there was no agreement
for ‘concert of action, no agreement to ‘cooperate’.
47 Coleridge, J, while summing up the case to Jury in
Regina v. Murphy (1937) 173 ER 502 at p. 508) states:
“I am bound to tell you, that although the common
design is the root of the charge, it is not necessary to
prove that these tow parties came together and actually
agreed in terms to have this common design and to
pursue it by common means, and so to carry ti into
execution. This is not necessary, because in many cases
of the most clearly established conspiracies there are not
means of proving any such thing, and neither law nor
common sense requires that it should be proved. If you
find that these two persons pursued by their acts the
same object, often by the same means, one performing
one part of an act, so as the complete it, with a view to
the attainment of the object which they were
pursuing,you will be at liberty to draw the conclusion
that they have been engaged in a conspiracy to effect
that object. The question you have to ask yourselves is.
‘Had they this common design, and did they pursue it by
these common means the design being unlawful.”
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48 As noted above, the essential ingredient of the offence of
criminal conspiracy is the agreement to commit an offence. In
a case where the agreement is for accomplishment of an act
which by itself constitutes an offence, then in that event no
overt act is necessary to be proved by the prosecution because
in such a situating criminal conspiracy is established by
proving such an agreement. Where the conspiracy alleged is
with regard to commission of a serious crime of the nature as
contemplated in Section120B read with the proviso to Sub
section (2) of Section 120A, then in that event mere proof of
an agreement between the accused for commission of such a
crime alone is enough to bring about conviction under Section
120B and the proof of any overt act by the accused or by any
one of them would not be necessary. The provisions, in such a
situation, do not require that each and very person who is a
party to the conspiracy must do some overt act towards the
fulfillment of the object of conspiracy, the essential ingredient
being an agreement between the conspirators to commit the
crime and if these requirements and ingredients are
established, the act would fall with in the trapping of the
provisions contained in Section 120B [See Suresh Chandra
Bahri v. State of Bihar [1995 Supp. (1) SCC 80].
49 The conspiracies are not hatched in open, by their
nature, they are secretly planned, they can be proved even by
circumstantial evidence, the lack of direct evidence relating to
conspiracy has no consequence. [See E.K. Chandrasenan v.
State of Kerala [(1995)2 SCC 99].
50 In Kehar Singh and Ors. v. State (Delhi Administration) ,
this Court observed
“275 Generally, a conspiracy is hatched in secrecy and
it may be difficult to adduce direct evidence of the same.
The prosecution will often rely on evidence of acts of
various parties to infer that they were done in reference
to their common intention. The prosecution will also
more often rely upon circumstantial evidence. The
conspiracy can be undoubtedly proved by such evidence
direct or circumstantial. But the Court must enquire
whether the two persons are independently pursuing the
same end or they have come together to the pursuit of
the unlawful object. The former does not render them
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conspirators, but the latter does. It is,however, essential
that the offence of conspiracy required some king of
physical manifestation of agreement. The express
agreement , however, need not be proved. Nor actual
meeting of the two persons is necessary. Nor it is
necessary to prove the actual words of communication.
The evidence as to transmission of thoughts sharing the
unlawful design may be sufficient”.
Conspiracy can be proved by circumstances and other
materials. (See: State of Bihar v. Paramhans [1986 Pat LJR
688].
“To establish a charge of conspiracy knowledge about
indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of unlawful
use being made f the goods or service in question may
be inferred form the knowledge itself. This apart, the
prosecution has not to establish that a particular
unlawful use was intended, so long as the goods or
service in question could not be put to any lawful use.
Finally, when the ultimate offence consists of a chain of
actions, ti would not be necessary for the prosecution to
establish, to bring home the charge of conspiracy, that
each of the conspirators had the knowledge of what the
collaborator would do so, so long as it is known that the
collaborator would put the goods or service to an
unlawful use [See : State of Maharashtra v. Som Nath
Thapa [(1996)4 SCC 659, Cr.LJ 2448 at p. 2453(SC) at
p. 668, para 24]”.
51 Where trust worthy evidence establishing all links of
circumstantial evidence is available, the confession of a co
accused as to conspiracy even without corroborative evidence
can be taken into consideration. [See Baburao Bajirao Patil v.
State of Maharashtra [(1971)3 SCC 432]. It can in some cases
be inferred for the acts and conduct of parties. [See
Shivanarayan Laxminarayan Joshi and Ors. v. State of
Maharashtra and Ors. [(1980)2 SCC 465].
18 In the above case, the Apex Court considered the cases
of Bachan Singh v. State of Punjab [(1980)2 SCC 684] and Machhi
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Singh v. State of Punjab [(1983)3 SCC 470]. That paras 52 to 54 are
pertaining to benefit of doubt and that proof beyond reasonable
doubt is a guideline, not a fetish. Paras 52 to 54 of the above
judgment read as under:
“52. It is submitted that benefit of doubt should be given on
account of coaccused’s acquittal.
53 Exaggerated devotion to the rule of benefit of doubt
must not nurture fanciful doubts or lingering suspicions and
thereby destroy social defence. Justice cannot be made sterile
on the plea that it is better to let hundred guilty escape than
punish an innocent. Letting guilty escape is not doing justice
according to law. [See Gurbachna Singh v. Stapal Singh and
Ors.][(19990)1 SCC 445]. Prosecution is not required to meet
any and every hypothesis put forward by the accused. [See
State of U.P. v. Ashok Kumar Srivastava][(1992)2 SCC 86].
54 If a case is proved perfectly it is argued that it is
artificial; if a case has some flaws, inevitable because human
beings are prone to err, it is argued that it is too imperfect.
One wonders whether in the meticulous hypersensitivity to
eliminate a rare innocent form being punished, many guilty
persons must be allowed to escape. Proof beyond reasonable
doubt is a guideline, not a fetish. [See Inder Singh and Anr. v.
State (DelhiAdministration)][(1978)4 SCC 161]. Vague
hunches cannot take place of judicial evaluation.
“A Judge does not preside over a criminal trial,merely to see
that no innocent man is punished. A judge also presides to see
that a guilty man does not escape. Both are public duties.” [Per
Viscount Simon in Stirlant v. Director of Public Prosecution
(1944 AC(PC) 315) quoted in State of U.P. v. Anil Singh]
[(1988 Supp SCC 686], SCC p. 692, para 17]”.
19 The decisions of Kunju @Balchandran [supra], Ravi
[ supra] and Gulam Sarbar [supra] are in the context of Section 134 of
the Evidence Act and it is submitted that quality and not the quantity of
witnesses is important and if testimony of solitary witness is not shaken
in a lengthy crossexamination and that the same is corroborated by
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other evidence, though not fully supporting the case of the prosecution,
conviction based on sole testimony of such witness cannot be interfered
with. That test is whether the evidence of such witness has a ring of
truth and it is cogent, credible and trustworthy and inspires confidence
and therefore reliable.
PART XIC
Analysis of case law relied on by Shri B.B.Naik, Senior Advocate
appearing for Victims
1 In the case of Harjagdev Singh [supra], the trial court
convicted the accused under Section 302 of the IPC for allegedly killing
his parents. By relying on judicial confession of his parents recorded
under Section 164 of the Code, 1973, however, the High Court, on the
ground that requisite procedure for recording confession under Section
164 was not followed and directed acquittal was held to be not proper
by the Apex Court by holding that an act of recording confessions under
section 164 is a very solemn act and in discharging his duties under the
said Section, Judicial Magistrate is required to take care to see that
requirements of Section 164(2) are fully satisfied and when necessary
questions are asked and due care is taken before recording statement of
accused such a confessional statement of accused could be used in
evidence against him.
2 In the case of Henry Westmuller Roberts etc. [supra], time
for reflection to accused was argued that it was inadequate and,
therefore, confessional statement was to be rejected. But repelling the
argument, the Apex Court in para 32 held that the court appreciating
such evidence of confessional statement has to assure genuineness and
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voluntary nature of confessions and even if such statement is retracted,
but if it is corroborated by circumstantial evidence, there is no
satisfactory reason for the confession not being accepted and acted
upon. Para 32 of the judgment read as under:
“32 A perusal of these confessional statements, Exs. 6 and 7
shows that they are more or less exculpatory of the maker, for
Henry had attributed everything to Sunil and stated that he
had done every thing at the instance of Sunil while Sunil had
attributed the important roll in the crime to Henry. As pointed
out by Mr. Rajender Singh, Senior Counsel appearing for
complainant, P.W. 23, this would not normally be the position
if the confessions were the result of tutoring by the police. The
confessional statement of Henry is quite long while that of
Sunil is much longer. As remarked by the learned Sessions
Judge these confessions are full of facts and minute details
which would not be there normally if the confessions are the
result of tutoring or of compulsion. The circumstantial
evidence relied upon by the trial court and the High Court lend
assurance to the genuineness and voluntary nature of these
confessions. They have no doubt been retracted, but in view of
the fact that they are generally corroborated by the
circumstantial evidence in ample measure, there is no
satisfactory reason for the confessions not being accepted and
acted upon. In these circumstances, we agree with the learned
Sessions Judge that the confessional statements of Henry and
Sunil, Exs. 6 and 7, are voluntary and can be acted upon,
together with the circumstantial evidence, for basing a
conviction”.
The Apex Court in para 33 agreed with the court below that
the corpus delicti has been correctly established by the prosecution to be
that of Sanjay, who was killed and thereafter in para 35 enumerated the
circumstances found by the Trial Court and the learned Judges of the
High Court to have been proved satisfactorily against the accused.
3 In the case of Mohd. Jamiludin Nasir [supra], in the
context of attack on American Center in Calcutta in which 5 police
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personnel were killed and 13 policemen and many civilians were injured
in which accused were charged under Section 120B, 121, 121A, 122,
302, etc. of IPC and also the Apex Court considered confession recorded
under section 164 of Code, 1973 in which minor discrepancies were held
not to discredit confession. In the context of facts of that case it was
further held that minor discrepancies in a confession recorded under
Section 164 cannot be treated as a noncorroborative factor and sections
24 to 26 were also considered. The Apex Court also deliberated on
evidentiary value of such confessional statement of coaccused under
Section 164 of the Code, 1973 by addressing to Sections 10 and 30 of
the Evidence Act, 1872. [This judgment also taken into consideration
decision in the case of the Apex Court in the cases of Bachan Singh v.
State of Punjab [(1980)2 SCC 684], Machhi Singh v. State of Punjab
[(1983)3 SCC 470], State [NCT of Delhi] v. Navjot Sandhu [(2005)11
SCC 600] and Mohd. Ajmal Amir Kasab v. State of Maharashtra
[(2012)9 SCC 1] in the context of Section 120B and Section 121, 121A,
122 and 302 of IPC].
4 The case of Bhagwan Swarup Lal Bishan Lal [supra] is
with regard to Section 120A of IPC visavis proof of criminal conspiracy
and scope and applicability of Section 10 of Evidence Act. Para 8 of the
judgment reads as under:
“8 Before dealing with the individual cases, as some
argument was made in regard to the nature of the evidence
that should be adduced to sustain the case of conspiracy, it will
be convenient to make at this stage some observations thereon.
Section 120A of the Indian Penal Code defines the offence of
criminal conspiracy thus:
“When two or more persons agree to do, or cause to be
done an illegal act, or an act which is not illegal by
illegal means, such an agreement is designated aPage 569 of 988
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criminal conspiracy. ”
The essence of conspiracy is, therefore, that there should be an
agreement between persons to do one or other of the acts
described in the section. The said agreement may be proved by
direct evidence or may be inferred from acts and conduct of
the parties. There is no difference between the mode of proof
of the offence of conspiracy and that of any other offence : it
can be established by direct evidence or by circumstantial
evidence. But S. 10 of the Evidence Act introduces the doctrine
of agency and if the conditions laid down therein are satisfied,
the act done by one is admissible against the coconspirators.
The said section reads :
“Where there is reasonable ground to believe that two or
more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or
written by any one of such persons in reference to their
common intention, after the time when such intention
was first entertained by any one of them, is a relevant
fact as against each of the persons believed to be so
conspiring as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing
that any such person was a party to it. ”
This section, as the opening words indicate, will come into play
only when the Court is satisfied that there is reasonable ground
to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, that is to say, there
should be a prima facie evidence that a person was a party to
the conspiracy before his acts can be used against his co
conspirators. Once such a reasonable ground exists, anything
said, done or written by one of the conspirators in reference to
the common intention, after the said intention was
entertained, is relevant against the others, not only for the
purpose of proving the existence of the conspiracy but also for
proving that the other person was a party to it. The evidentiary
value of the said acts is limited by two circumstances, namely,
that the acts shall be in reference to their common intention
and in respect of a period after such intention was entertained
by any one of them. The expression “in reference to their
common intention” is very comprehensive and it appears to
have been designedly used to give it a wider scope than the
words “in furtherance of” in the English law; with the result,
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anything, said, done or written by a coconspirator, after the
conspiracy was formed, will be evidence against the other
before he entered the field of conspiracy or after he left it.
Another important limitation implicit in the language is
indicated by the expressed scope of its relevancy. Anything so
said, done or written is a relevant fact only “as against each of
the persons believed to be so conspiring as well for the purpose
of proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it”. It can only be
used for the purpose of proving the existence of the conspiracy
or that the other person was a party to it. It cannot be used in
favour of the other party or for the purpose of showing that
such a person was not a party to the conspiracy. In short, the
section can be analysed as follows: (1) There shall be a prima
facie evidence affording a reasonable ground for a Court to
believe that two or more persons are members of a conspiracy;
(2) if the said condition is fulfilled, anything said, done or
written by any one of them in reference to their common
intention will be evidence against the other; (3) anything said,
done or written by him should have been said, done or written
by him after the intention was formed by any one of them; (4)
it would also be relevant for the said purpose against another
who entered the conspiracy whether it was said, done or
written before he entered the conspiracy or after he left it; and
(5) it can only be used against a coconspirator and not in his
favour”.
5 In the case of Nanak Chand [supra], the Apex Court drawn
distinction of Sections 149 and 34 of IPC. Reliance was also placed in
the cases of Barendra Kumar Ghosh v. Emperor [AIR 1925 PC 1(A)]. In
paras 6, 7 and 9 of the above judgment, the Apex Court discussed
ingredients of both the above offences making a clear distinction
between provisions of Sections 34 and 149 while holding that section
149 creates specific offence, but Section 34 does not. Paras 6, 7 and 9 of
the above judgment are as under:
“6 It is necessary, therefore, to examine the provisions of
section 149 of the Indian Penal Code and consider as to
whether this section creates a specific offence. Section 149 ofPage 571 of 988
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the Indian Penal Code is to be found in Chapter VIII of that
Code which deals with offences against the public tranquility.
Section 149 of the Indian Penal Code reads:
“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”.
This section postulates that an offence is committed by a
member of an unlawful assembly in prosecution of the
common object of that assembly or such as a member of the
assembly knew to be likely to be committed in prosecution of
that object and declares that in such circumstances every
person, who was a member of the same assembly at the time
of the commission of the offence, was guilty of that offence.
Under this section a person, who is a member of an unlawful
assembly is made guilty of the offence committed by another
member of the same assembly, in the circumstances mentioned
in the section, although he had no intention to commit that
offence and had done no overt act except his presence in the
assembly and sharing the common object of that assembly.
Without the provisions of this section a member of an unlawful
assembly could not have been made liable for the offence
committed not by him but by another member of that
assembly. Therefore when the accused are acquitted of riot
and the charge for being members of an unlawful assembly
fails, there can be no conviction of any one of them for an
offence which he had not himself committed.
Similarly under section 150 of the Indian Penal Code, a
specific offence is created. Under this section a person need
not be a member of an unlawful assembly and yet he would be
guilty of being a member of an unlawful assembly and guilty of
an offence which may be committed by 1207 a member of the
unlawful assembly in the circumstances mentioned in the
section.
Sections 149 and 150 of the Indian Penal Code are not the
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only sections in that Code which create a specific offence.
Section 471 of the Indian Penal Code makes it an offence to
fraudulently or dishonestly use as genuine any document
which a person knows or has reason to believe to be a forged
document and it provides that such a person shall be punished
in the same manner as if he had forged such document.
Abetment is an offence under the Indian Penal Code and is a
separate crime to the principal offence. The sentence to be
inflicted may be the same as for the principal offence. In
Chapter XI of the Indian Penal Code offences of false evidence
and against public justice are mentioned. Section 193
prescribes the punishment for giving false evidence in any
stage of a judicial proceeding or fabricating false evidence for
the purpose of being used in any stage of a judicial proceeding.
Section 195 creates an offence and the person convicted of this
offence is liable in certain circumstances to be punished in the
same manner as a person convicted of the principal offence.
Sections 196 and 197 to 200 of the Indian Penal Code also
create offences and a person convicted under any one of them
would be liable to be punished in the same manner as if he
had given false evidence.
7 It was, however, urged on behalf of the Prosecution that
section 149 merely provides for constructive guilt similar to
section 34 of the Indian Penal Code. Section 34 reads:
“When a criminal act is done by several persons, in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it
were done by him alone”.
This section is merely explanatory. Several persons must be
actuated by a common intention and when in furtherance of
that common intention a criminal act is done by them, each of
them is liable for that act as if the act bad been done by him
alone. This section does not create any specific offence.
As was pointed out by Lord Sumner in Barendra Kumar Ghosh
v. EmperorAIR 1925 PC 1(A)
“‘a criminal act’ means that (1) [1925] I.L.R. 52 Cal.
197, 1208 unity of criminal behaviour which results in
something, for which an individual would be punishable,
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if it were all done by himself alone, that is, in a criminal
offence”.
There is a clear distinction between the provisions of sections
34 and 149 of the Indian Penal Code and the two sections are
not to be confused. The principal element in section 34 of the
Indian Penal Code is the common intention to commit a crime.
In furtherance of the common intention several acts may be
done by several persons resulting in the commission of that
crime. In such a situation section 34 provides that each one of
them would be liable for that crime in the same manner as if
all the acts resulting in that crime had been done by him
alone.’ There is no question of common intention in section
149 of the Indian Penal Code. An offence may be committed
by a member of an unlawful assembly and the other members
will be liable for that offence although there was no common
intention between that person and other members of the
unlawful assembly to commit that offence provided the
conditions laid down in the section are fulfilled. Thus if the
offence committed by that person is in prosecution of the
common object of the unlawful assembly or such as the
members of that assembly knew to be likely to be committed in
prosecution of the common object, every member of the
unlawful assembly would be guilty of that offence, although
there may have been no common intention and no
participation by the other members in the actual commission
of that offence.
In Barendra Kumar Ghosh v. Emperor AIR 1925 PC 1(A)
Lord Sumner dealt with the argument that if section 34 of the
Indian Penal Code bore the meaning adopted by the Calcutta
High Court, then sections 114 and 149 of that Code would be
otiose. In the opinion of Lord Sumner, however, section 149 is
certainly not otiose,, for in any case it created a specific
offence. It postulated an assembly of five or more persons
having a common object, as named in section 141 of the
Indian Penal Code and then the commission of an offence by
one member of it in prosecution of that object and he referred
to Queen v. Sabid Ali, 20 Suth WR [Cr.] 5 [FB][B].
He pointed out that there was a difference between object
and intention, for although the object may be common, the
intentions of the several members of the unlawful assembly
may differ and indeed may be similar only in respect that
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they are all unlawful, while the element of participation in
action, which is the leading feature of section 34, was
replaced in section 149 by membership of the assembly at
the time of the committing of the offence. It was argued,
however, that these observations of Lord Sumner were obiter
dicta. Assuming though not conceding that may be so, the
observations of a Judge of such eminence must carry weight
particularly if the observations are in keeping with the
provisions of the Indian Penal Code. It is, however, to be
remembered that the observations of Lord Sumner did directly
arise on the argument made before the Privy Council, the Privy
Council reviewing as a whole the provisions of sections 34, 114
and 149 of the Indian Penal Code.
9 A charge for a substantive offence under section 302, or
section 325 of the Indian Penal Code, etc. is for a distinct and
separate offence from that under section 302, read with
section 149 or section 325, read with section 149, etc. and to
that extent the Madras view is incorrect. It was urged by
reference to section 40 of the Indian Penal Code that section
149 cannot be regarded as creating an ‘offence’ because it does
not itself provide for a punishment. Section 149 creates an
offence but the punishment must depend on the offence of
which the offender is by that section made guilty. Therefore
the appropriate punishment section must be read with it. It
was neither desirable nor possible to prescribe one uniform
punishment for all cases which may fall within it. The finding
that all the members of an unlawful assembly are guilty of the
offence committed by one of them in the prosecution of the
common object at once subjects all the members to the
punishment prescribed for that offence and the relative
sentence. Reliance was also placed upon the decision of the
Patna High Court in Ramasray Ahir v. KingEmperor, AIR 1928
Pat 454 (I) as well as the decision of the Allahabad High Court
in Sheo Ram and Others v. Emperor, AIR 1948 All 162 (J). In
the former case the decision of the Privy Council in Barendra
Kumar Ghosh‘s case was not considered and the decision
followed the Full Bench of the Madras High Court and the
opinion of Sir John Edge. In the latter case the Allahabad High
Court definitely declined to answer the question as to whether
the accused charged with an offence read with section 149,
Indian Penal Code, or with an offence read with section 34,
Indian Penal Code, could be convicted of the substantive
offence only”.
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6 In the case of Chikkarange Gowda & Ors. [supra]
explained that the leading features of Section 34 is the element of
participation in action, whereas, membership of the assembly at the
time of committing of the offence is the important element of Section
149. The two sections have a certain resemblance and may to a
certain extent overlap, but it cannot be said that both have the same
meaning. That Section 34 embodies a principle of joint liability in
the doing of criminal act, and the essence of that liability is the
existence of a common intention.
7 In the case of Madan Singh [supra], the Apex Court relied
on earlier decisions in the case of Chikkarange Gowda [supra] and in
paras, 10 to 13 analyzed and explained the concept of constructive
liability of members of an unlawful assembly and common object as
specified in Section 141 of IPC and though proof regarding overt act,
may not be necessary and circumstances are enumerated about relevant
consideration for determining common object and that unlawful
assembly continues and so the common object up to a beyond stage,
where after it get modified or it may abandon and the effect of Section
149 may be different on members of same assembly.
“10 Major plea which was emphasised relates to the
question whether S. 149, I.P.C. has any application for
fastening the constructive liability on the basis of unlawful
acts committed pursuant to the common object by any
member or the acts which the members of the unlawful
assembly knew to be likely to be committed which is the
sine qua non for its operation. The emphasis is on the
common object and not on common intention. Mere
presence in an unlawful assembly cannot render a person
liable unless there was a common object and he shared the
same or was actuated by that common object and thatPage 576 of 988
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object is one of those set out in S. 141. Where common
object of an unlawful assembly is not proved, the accused
persons cannot be convicted with the help of S 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 S. 141. It cannot be laid down as a general
proposition of law that unless the commission of an overt
act is proved against a person, who is alleged to be a
member of 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 S. 141. 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. A common
object may be formed by express agreement after mutual
consultation, but that is by no means always necessary. It
may be formed at any stage by all or a few members of the
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. The
expression “in prosecution of common object” as appearing
in S. 149 have to be strictly construed as equivalent to “in
order to attain the common object.” It must be immediately
connected with the common object by virtue of the nature
of the object. 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 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 S. 149,
I.P.C. may also vary on different members of the same
assembly.
11. “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. It is enough ifPage 577 of 988
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each has the same object in view and their number is five or
more and that they act as an assembly to achieve that
object. The “common object” of an assembly is to be
ascertained from the acts and language and utterances of
the members composing it the nature of arms carried, and
from a consideration of all the surrounding circumstances.
It may be gathered also from the course of conduct adopted
by and behaviour of the members of the assembly at or
before the actual conflict. 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. It is not necessary under law that in
all cases of unlawful assembly, with an unlawful common
object, the same must be translated into action or be
successful. Under the Explanation to S. 141, an assembly
which was not unlawful when it was assembled, may
subsequently become unlawful. 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.
12 Section 149, I.P.C. 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
member. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may
yet fall under S. 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.
The purpose for which the members of the assembly set out
or desired to achieve is the object. If the object desired by
all the members is the same, the knowledge that is the
object which is being pursued is shared by all the members
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achieved and that is now the common object of the
assembly. 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. Though no hard and fast rule can be laid down
as to the circumstances from which the common object can
be called out, it may reasonably be collected from the
nature of the assembly, arms it carries and behaviour at or
before or after the scene of incident. The word “knew” used
in the second branch of the section implies something more
than a possibility and it cannot be made to bear the sense of
“might have been known.” Positive knowledge is necessary.
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 S. 149 cannot be ignored or obliterated. In
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 fall within first part being offences
committed in prosecution of the common object, while at
the same time, though not always falling within the second
part, as offences which the members of the unlawful
assembly knew to be likely to be committed by a person
engaged in the prosecution of the common object and
acting with the purpose of executing it. (See Chikkarange
Gowda and others v. State of Mysore (AIR 1956 SC 731).
13 As noted by this Court in Sukhbir Singh v. State of
Haryana (2002 (3) SCC 327) common object in terms of S.
149 can develop at the spot. Existence of the object has to
be considered at the time of actual occurrence and not
necessarily from anterior point of time.”
8 In the case of Vyas Ram @Vyas Kahar & Ors. [supra], the
Apex Court reiterated principles governing unlawful assembly under
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section 149 of the IPC and held that if an offence committed by any
member of an unlawful assembly in prosecution of the common object
by 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 and Section 149 is in a sense
vicarious, and does not always proceed on the basis that the offence has
been actually committed by every member of the unlawful assembly.
However, if a person is a member bystander, and no specific role is
attributed to him, he may not come under the wide sweep of section
149. In the above decision, other cases of the Apex Court in the case of
Masalti v. State of U.P. [AIR 1965 SC 202], Baladin v. State of U.P. [AIR
1956 SC 181] were relied and considered.
9 The case of Krishna Mochi [supra] is about murder of 35
persons and injuries sustained by several others as a result of gruesome
acts on the part of the accused in which they were charged under section
302 read with Section 149 of the IPC and also under TADA Act and
majority view of the Apex Court held extreme penalty of death. [In para
42 of the judgment, the Apex Court considered cases of Bachan Singh v.
State of Punjab [(1980)2 SCC 684], Machhi Singh v. State of Punjab
[(1983)3 SCC 470] and propositions emerge from the above two cases
and even in concurring view Arijit Pasayat, J. (as His Lordship then was)
placed reliance on other decisions also].
10 For the other decisions relied on by Mr. B.B.Naik, learned
Senior Advocate appearing for the victims to which refernece is made in
case law cited and relied on by Mr.J.M.Panchal, learned Special Public
Prosecutor and also by learned counsels for the defence.
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PART XID
Analysis of case law relied on by Shri A.D.Shah, learned Senior
Advocate for the defence
1 Paras 21 to 29 of Rabindra Kumar Pal @Dara Singh
[supra] reported in AIR 2011 SC 1436 are equivalent to paras 56 to 64
of the very judgment reported in (2011)2 SCC 490.
2 It is thus emphasized by Mr. Shah, learned senior counsel
that remanding accused to police custody is not justified and failure to
make searching inquiry by learned Magistrate as held in the facts of
Sivappa [supra] in which the Apex court reiterated the principles laid
down by the Apex Court in earlier cases of U.P. v. Singhara Singh [AIR
1964 SC 358] and provisions of Section 164 of the Code, 1973
emphasises an enquiry by the Magistrate to ascertain true and the
voluntary nature of the confession.
3 Case of Mohd. Ayub Dar [supra] was relied on in the
context of confession recorded under section 15 of the TADA, 1987.
4 On the same point case of Jogendra Nahak [supra] was
relied on by making a specific reference that a person, who is neither an
accused nor sponsored by the investigating agency, held, has no locus
standi to apply to the Magistrate to record his statement under Section
164 of the Code, 1973. However, in the very case it was held by the
Apex Court that evidence of such a person can, at the instance of any of
the parties, be taken during trial.
5 Reliance is also placed on Adambhai Sulemanbhai Ajmeri
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[Akshardham Temple Attack case] [supra] in which 35 persons died and
more then 85 were injured in which the Chief Judicial Magistrate
completed procedure within half an hour when confession was recorded
of more than 15 pages under section 32(5) of POTA, 2002. Further,
requirement that accused shall be sent to judicial custody is mandatory,.
The above case was also relied in the context of Section 120B of IPC
since confessions of accused were not corroborated by independent
evidence. Even contradictions in version of conspiracy given by each
conspirator was also not proved.
6 The case of Dagdu [supra] was relied on in the context of
evidentiary value of confessional statements and there is a risk involved
in convicting accused on the testimony of accomplice unless it is
corroborated in material particulars, is so real and potent that what
during the early development of law was felt to be a matter of prudence
has been elevated by judicial experience into a requirement or rule of
law. In the above decision the Apex Court relied on the decisions in the
cases of King v. Baskerville [(1916)2 KB 658], Rameshwar v. State of
Rajasthan [AIR 1952 SC 54] and Bhuboni Sahu v. The King [76 Ind App
147] and other decisions were considered, but at the same time, the
Apex Court also held that, a confession does not violate any of the
conditions operative under Sections 24 to 28 of the Evidence Act, it will
be admissible in evidence. The test is confession has to appear to be
voluntary, truthful and free from any threat, influence, allurement or
undue advantage or gain. In the above case, the concerned Magistrate
was blissfully ignorant about the provisons and procedure to be followed
under section 164 of the Code, 1973.
7 Case of Sarwan Singh Rattan Singh [supra] is in the
context of Section 133 of Evidence Act read with Section 367 of Code,
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1973 for appreciation of evidence, it was held by the Apex Court that the
Magistrate discharging the duties while recording confessions under
Section 164 of the Code, 1973 care must be taken to see that
requirement subsection (3) of Section 164 are fully satisfied. An
inquiry by the Magistrate and questions to be put forward should not
become a matter of mere mechanical inquiry. Further, reasonable time
at least of 24 hours for reflection and to decide whether or not a
confession be made to be given to the accused. Before convicting the
accused, the prosecution story should satisfy the test of “must be true”
and not “may be true”.
8 The case of Malay Kumar Ganguly [supra] was in the
context of Section 45 of the Evidence Act that in order to bring the
evidence of a witness as that of an expert it has to be shown that he has
made a special study of the subject or acquired a special experience
therein or in other words that he is skilled and has adequate knowledge
of the subject and his evidence is really of an advisory in character. The
expert is duty bound to furnish necessary scientific criteria for testing the
accuracy of the conclusions so as to enable the Judge to form his
independent judgment by the application of this criteria to the facts
proved by the evidence of the case. On the aspect of objections as to
admissibility of evidence, such evidence may be classified into two
classes: (i) an objection that the document which is sought to be proved
is itself inadmissible in evidence; and (ii) where the objection does not
dispute the admissibility of the document in evidence but is directed
towards the mode of proof alleging the same to be irregular or
insufficient. Para 50 of the above judgment reads as under:
“50 The said exhibits, however, are admissible before the
consumer court. This Court in R.V.E. Venkatachala Gounder v.
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Arulmigu Viswesaraswami & V.P. Temple,(2003) 8 SCC 752, at
page 763 :
“… Ordinarily, an objection to the admissibility of
evidence should be taken when it is tendered and not
subsequently. The objections as to admissibility of
documents in evidence may be classified into two
classes: (i) an objection that the document which is
sought to be proved is itself inadmissible in evidence;
and (ii) where the objection does not dispute the
admissibility of the document in evidence but is directed
towards the mode of proof alleging the same to be
irregular or insufficient. In the first case, merely because
a document has been marked as “an exhibit”, an
objection as to its admissibility is not excluded and is
available to be raised even at a later stage or even in
appeal or revision. In the latter case, the objection
should be taken when the evidence is tendered and once
the document has been admitted in evidence and
marked as an exhibit, the objection that it should not
have been admitted in evidence or that the mode
adopted for proving the document is irregular cannot be
allowed to be raised at any stage subsequent to the
marking of the document as an exhibit. The latter
proposition is a rule of fair play. The crucial test is
whether an objection, if taken at the appropriate point of
time, would have enabled the party tendering the
evidence to cure the defect and resort to such mode of
proof as would be regular. The omission to object
becomes fatal because by his failure the party entitled to
object allows the party tendering the evidence to act on
an assumption that the opposite party is not serious
about the mode of proof. On the other hand, a prompt
objection does not prejudice the party tendering the
evidence, for two reasons: firstly, it enables the court to
apply its mind and pronounce its decision on the
question of admissibility then and there; and secondly,
in the event of finding of the court on the mode of proof
sought to be adopted going against the party tendering
the evidence, the opportunity of seeking indulgence of
the court for permitting a regular mode or method of
proof and thereby removing the objection raised by the
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evidence. Such practice and procedure is fair to both the
parties. Out of the two types of objections, referred to
herein above, in the latter case, failure to raise a prompt
and timely objection amounts to waiver of the necessity
for insisting on formal proof of a document, the
document itself which is sought to be proved being
admissible in evidence. In the first case, acquiescence
would be no bar to raising the objection in a superior
court.”
9 The case of Akbar Sheikh [supra] is on the point of
unlawful assembly in the context of Sections 141, 149 and 34,
requirement by the prosecution to establish a case under Sections 149
and 141 of IPC and distinction between “common object” and “common
intention” were reiterated and in paras 18 to 35 of the said judgment the
Apex Court revisited law laid down on both the above aspects. Paras 18
to 35 of the above judgment read as under:
“18 The core question which arises for consideration is as to
whether some of the appellants who had not committed any
overt act must be held to be a part of the unlawful assembly or
shared the common object with the main accused.
19 Chapter VIII of the Indian Penal Code provides for the
offences against the public tranquility. Section 141 defines
‘Unlawful Assembly’ to be an assembly of five or more persons.
They must have a common object inter alia to commit any
mischief or criminal trespass or other offence. Section 142 of
the Indian Penal Code postulates that whoever, being aware of
facts which render any assembly an unlawful one, intentionally
joins the same would be a member thereof.
20 Section 143 of the Indian Penal Code provides for
punishment of being a member of unlawful assembly. Section
149 provides for constructive liability on every person of an
unlawful assembly if an offence is committed by any member
thereof in prosecution of the common object of that assembly
or such of the members of that assembly knew to be likely to
be committed in prosecution of that object.
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21 Whether an assembly is unlawful one or not, thus,
would depend on various factors, the principal amongst them
being a common object formed by the members thereof to
commit an offence specified in one or the other clauses
contained in Section 141 of the Indian Penal Code.
Constructive liability on a person on the ground of being a
member of unlawful assembly can be fastened for an act of
offence created by one or more members of that assembly if
they had formed a common object. The distinction between a
common object and common intention is wellknown.
22 In Munna Chanda v. State of Assam ((2006) 3 SCC
752), this Court held as under : [SCC pp. 75657, paras 1013]
“10. The concept of common object, it is well known, is
different from common intention. It is true that so far as
common object is concerned no prior concert is
required. Common object can be formed on the spur of
the moment. Course of conduct adopted by the members
of the assembly, however, is a relevant factor. At what
point of time the common object of the unlawful
assembly was formed would depend upon the facts and
circumstances of each case”.
11 Section 149, IPC creates a specific and distinct
offence. There are two essential ingredients thereof :
[i] commission of an offence by any member of an
unlawful assembly, and[ii] such offence must have been committed in
prosecution of the common object of that assembly or
must be such as the members of that assembly knew to
be likely to be committed.
12 It is, thus, essential to prove that the person
sought to be charged with an offence with the aid of
Section 149 was a member of the unlawful assembly at
the time the offence was committed.
13 The appellants herein were not armed with
weapons. They except Bhuttu were not parties to all the
three stages of the dispute. At the third stage of the
quarrel, they wanted to teach the deceased and others a
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lesson. For picking up quarrel with Bhuttu, they might
have become agitated and asked for apologies from
Moti. Admittedly, it was so done at the instance of
Nirmal, Moti was assaulted by Bhuttu at the instance of
Ratan. However, it cannot be said that they had
common object of intentional killing of the deceased.
Moti, however, while being assaulted could free himself
from the grip of the appellants and fled from the scene.
The deceased was being chased not only by the
appellants herein but by many others. He was found
dead the next morning. There is, however, nothing to
show as to what role the appellants either conjointly or
separately played. It is also not known as to whether if
one or all of the appellants were present, when the last
blow was given. Who are those who had assaulted the
deceased is also not known. At whose hands he received
injuries is again a mystery. Neither Section 34 nor
Section 149 of the Penal Code is, therefore, attracted.
(See Dharam Pal v. State of Haryana and Shambhu Kuer
v. State of Bihar)[(1982)1 ASCC 486]”
23 The question came up for consideration before this
Court in Baladin and others v. State of Uttar Pradesh, (AIR
1956 SC 181) wherein B. P. Sinha, J., as the learned Chief
Justice then was, opined that with a view to invoke the
provisions of Section 149 of the Indian Penal Code, “it was
necessary therefore for the prosecution to lead evidence
pointing to the conclusion that all the appellants before us had
done or been committing some overt act in prosecution of the
common object of the unlawful assembly”.
24 It was furthermore stated in Baladin v. State of U.P.
[AIR 1956 SC 181]:[AIR p.190, para 19]
“19 …………The evidence as recorded is in general
terms to the effect that all these persons and many more
were the miscreants and were armed with deadly
weapons, like guns, spears, pharsas, axes, lathis, etc.
This kind of omnibus evidence naturally has to be very
closely scrutinised in order to eliminate all chances of
false or mistaken implication. That feelings were
running high on both sides is beyond question.
That the six male members who were done to death that
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morning found themselves trapped in the house of
Mangal Singh has been found by the Courts below on
good evidence. We have therefore to examine the case
of each individual accused to satisfy ourselves that mere
spectators who had not joined the assembly and who
were unaware of its motive had not been branded as
members of the unlawful assembly which committed the
dastardly crimes that morning.
It has been found that the common object of the
unlawful assembly was not only to kill the male
members of the refugee families but also to destroy all
evidence of those crimes. Thus even those who did
something in connection with the carrying of the dead
bodies or disposal of them by burning them as aforesaid
must be taken to have been actuated by the common
objective.”
25 The aforementioned observation was, however, not
accepted later by this Court as an absolute proposition of law
and was held to be limited to the peculiar fact of the case in
Masalti v. State of U.P., ((1964) 8 SCR 133) in the following
terms :
“17 ………..What has to be proved against a person
who is alleged to be a member of an unlawful assembly
is that he was one of the persons constituting the
assembly and he entertained long with the other
members of the assembly the common object as defined
by Section 141, IPC. Section 142 provides that however,
being aware of facts which render any assembly an
unlawful assembly intentionally joins that assembly, or
continue in it, is said to be a member of an unlawful
assembly. In other words, an assembly of five or more
persons actuated by, and entertaining one or more of the
common object specified by the five clauses of Section
141, is an unlawful assembly. The crucial question to
determine in such a case 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 by Section 141. While determining
this question, it becomes relevant to consider whether
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as a matter of the idle curiosity without intending to
entertain the common object of the assembly……..”
26 We may, however, notice that whereas the principle of
law laid down in Masalti (supra) is beyond any doubt or
dispute, its application in the later cases has not been
strictly adhered to. This Court, as would appear from the
discussions made hereinafter, in some of its decisions had
proceeded to determine the issue in the factual matrix
obtaining therein although some observations of general
nature had been made.
27 In Sherey and others v. State of U.P., (1991 Supp (2)
SCC 437) involved a case where there was a dispute
between Hindus and Muslim of a village regarding a grove.
Whereas the Hindus were claiming that it was a grove, the
Muslims were claiming it to be a graveyard. A large number
of Muslims, about 25 in number, came out with lethal
weapons and killed three persons and injured others. Before
this Court an argument was advanced that the appellants
against whom no overt act was attributed but were part of
the unlawful assembly should be held to be not guilty was
accepted, stating : [SCC p.440, para 4]
“4 …….Therefore, it is difficult to accept the
prosecution case that the other appellants were
members of the unlawful assembly with the object of
committing the offences with which they are charged.
We feel it is highly unsafe to apply Section 149 IPC and
make everyone of them constructively liable. But so far
as the above nine accused are concerned the
prosecution version is consistent namely that they
were armed with lethal weapons like swords and axes
and attacked the deceased and others. This strong
circumstance against them establishes their presence
as well as their membership of the unlawful assembly.
The learned counsel appearing for the State
vehemently contended that the fact that the Muslims
as a body came to the scene of occurrence would
show that they were members of an unlawful
assembly with the common object of committing
various offences including that of murder. Therefore
all of them should be made constructively liable. But
when there is a general allegation against a large
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number of persons the Court naturally hesitates to
convict all of them on such vague evidence. Therefore
we have to find some reasonable circumstance which
lends assurance. From that point of view it is safe only
to convict the abovementioned nine accused whose
presence is not only consistently mentioned from the
stage of FIR but also to whom overt acts are
attributed…….”
28 Similarly, in Musa Khan and others v. State of
Maharashtra ((1977) 1 SCC 733), it was opined : [SCC p. 736,
para 5]
“5 …..It is well settled that a mere innocent presence
in an assembly of persons, as for example a bystander,
does not make the accused a member of an unlawful
assembly, unless it is shown by direct or circumstantial
evidence that the accused shared the common object of
the assembly. Thus a Court is not entitled to presume
that any and every person who is proved to have been
present near a riotous mob at any time or to have joined
or left it at any stage during its activities is in law guilty
of every act committed by it from the beginning to the
end, or that each member of such a crowd must from the
beginning have anticipated and contemplated the nature
of the illegal activities in which the assembly would
subsequently indulge. In other words, it must be
proved in each case that the person concerned was
not only a member of the unlawful assembly at some
stage, but at all the crucial stages and shared the
common object of the assembly at all these
stages……..”
[emphasis supplied]
It was opined therein that as evidence was wholly lacking that
all of them had taken part at all stages of the commission of
offence, they were held to be not guilty of the charges levelled
against them.
29 Yet again in Nagarjit Ahir v. State of Bihar ((2005) 10
SCC 369), it was opined : [SCC p.373, para 12]
“12 ……..Moreover, in such situations though many
people may have seen the occurrence, it may not be
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possible for the prosecution to examine each one of
them. In fact, there is evidence on record to suggest
that when the occurrence took place, people started
running helterskelter. In such a situation it would be
indeed difficult to find out the other persons who had
witnessed the occurrence…….”
It was furthermore observed : [SCC p.373, para 14]
“14 ……..In such a case, it may be safe to convict
only those persons against whom overt act is alleged
with the aid of Section 149, IPC, lest some innocent
spectators may get involved. This is only a rule of
caution and not a rule of law……”
30 Almost a similar view has been taken in Hori Lal and
another v. State of U. P., [(2006) 13 SCC 79) wherein this
Court noticed both Baladin (supra) and Masalti (supra) as also
other decisions to opine : [Hari Lal case [(2006) SCC 79] :
[SCC p. 85, paras 2325]
“23 Common object would mean the purpose or
design shared by all the members of such assembly. It
may be formed at any stage.
24 Whether in a given case the accused persons
shared common object or not, must be ascertained
from the acts and conduct of the accused persons. The
surrounding circumstances are also relevant and may
be taken into consideration in arriving at a conclusion
in this behalf.
25 It is in two parts. The first part would be
attracted when the offence is committed in
furtherance of the common object. The offence, even
if is not committed in direct prosecution of the
common object of the assembly, Section 149, IPC may
still be attracted.”
What was, therefore, emphasized was that not only the acts
but also the conduct and surrounding circumstances would be
the guiding factors.
31 In Shankaraya Naik and Ors. v. State of Karnataka,
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(2008 (12) SCALE 742), this Court held : [SCC p.689, para
15]
“5…….It is clear from the record that the accused had
come to the place of incident duly armed and had
immediately proceeded with the attack on the opposite
party and had caused serious injuries to the deceased
and to as many as eight witnesses. It is also clear from
the facts preceding the attack that there was great
animosity between the parties and it must, therefore, be
inferred that when the accused had come armed with
lethal weapons, the chance that somebody might be
killed was a real possibility.”
32 In Maranadu and Anr. v. State by Inspector of Police,
Tamil Nadu, (2008 (12) SCALE 420), this Court stated the
law, thus :
“17 ‘Common object’ is different from ‘common
intention’ as it does not require a prior concert and a
common meeting of minds before the attack. It is
enough if each has the same object in view and their
number is five or more and that they act as an assembly
to achieve that object. 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. For determination of the common object
of the unlawful assembly, the conduct of each of the
members of the unlawful assembly, before and at the
time of attack and thereafter, the motive for the crime,
are some of the relevant considerations. 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. It is not necessary under law that in all cases of
unlawful assembly, with an unlawful common object,
the same must be translated into action or be successful.
Under the Explanation to Section 141, an assembly
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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 instanti .”
33 We may, however, notice that therein this Court had
taken note of an earlier decision of this Court in State of U.P.
v. Dan Singh and others, ((1997) 3 SCC 747) wherein it was
held : [scc P.760, PARA 34]
“34. Mr. Lalit is right in submitting that the witnesses
would be revengeful as a largescale violence had taken
place where the party, to which the eyewitnesses
belonged, had suffered and it is, therefore, necessary to
fix the identity and participation of each accused with
reasonable certainty. Dealing with a similar case of riot
where a large number of assailants who were members
of an unlawful assembly committed an offence of
murder in pursuance of a common object, the manner in
which the evidence should be appreciated was adverted
to by this Court in Masalti case as follows : [AIR p.210
para 15]
“15 Then it is urged that the evidence given by
the witnesses conforms to the same uniform
pattern and since no specific part is assigned to all
the assailants, that evidence should not have been
accepted. This criticism again is not wellfounded.
Where a crowd of assailants who are members of
an unlawful assembly proceeds to commit an
offence of murder in pursuance of the common
object of the unlawful assembly, it is often not
possible for witnesses to describe accurately the
part played by each one of the assailants. Besides,
if a large crowd of persons armed with weapons
assaults the intended victims, it may not be
necessary that all of them have to take part in the
actual assault. In the present case, for instance,
several weapons were carried by different
members of the unlawful assembly, but it appears
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that the guns were used and that was enough to
kill 5 persons. In such a case, it would be
unreasonable to contend that because the other
weapons carried by the members of the unlawful
assembly were not used, the story in regard to the
said weapons itself should be rejected.
Appreciation of evidence in such a complex case is
no doubt a difficult task; but criminal courts have
to do their best in dealing with such cases and it is
their duty to sift the evidence carefully and decide
which part of it is true and which is not.”
34 The decisions of this Court in Shankaraya Naik (supra)
and Maranadu (supra), therefore, do not militate against the
proposition of law in regard to appreciation of evidence, which
we have to apply herein.
35 The prosecution in a case of this nature was required to
establish (i) whether the appellants were present; and (ii)
whether they shared a common object”.
PART XIE
Analysys of case law relied on by Ms. Nitya Ramkrishhan, learned
Senior counsel for the defence
1 The case of Suleman Usman Memon [supra] was relied on
in support of her contention that without factual data and reasons, the
report of the chemical examiner, though admissible but such evidence
has no evidentiary value. The above case had geneses in the offence
under Section 66(1)(b) of the Bombay Prohibition Act, 1949 where3
failure of accused to examine chemical examiner under subsection (2) of
Section 510 of earlier Cr.P.C., 1898 made no difference so far as
examining alcohol content of the blood of the accused.
2 On the same issue Ramesh Chandra Agrawal [supra] was
relied on in which the Apex Court held that in support of opinion under
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Section 45 of the Evidence Act can be considered if such opinion is
scientific, intelligible, convincing and tested along with evidence of the
case and admissibility of the expert evidence as to fulfill basic
requirement that witness has made a special study of the subject or
acquired special experience therein or is skilled and has adequate
knowledge of the subject and credibility of expert depends on the
reasons stated in support of his conclusions and data and material
furnished which form the basis of his conclusions. However, very
judgment also said that evidence of expert is admissible when; [i] expert
is heard, [ii] he must be within a recognized field of expertise, [iii] his
evidence must be based on reliable principles, and [iv] he must be
qualified in that discipline.
3 In the case of Sidhartha Vashist @Manu Sharma [supra]
the Apex Court held that an expert opinion is an expert only if he follows
wellaccepted guidelines to arrive at a conclusion and supports same
with logical reasoning.
4 In the case of Jai Lal [supra], District Horticulture Officer
was produced as an export witness, who had no scientific study or
research in assessment of productivity of apple crop in which, the Apex
Court held that his testimony cannot be given label of expert witness.
5 The case of Mahmood [supra] was relied on in the context
of requirement of the expert having skill, knowledge and experience in
the science of identification of finger prints and that it would be highly
unsafe to convict one on a capital charge without any independent
corroboration, solely on the bald and dogmatic opinion of such a person,
even if such opinion is assumed to be admissible under Section 45 of the
Evidence Act.
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6 The case of Dayal Singh [supra] was relied on the issue of
an opinion of the expert that it is to provide trial of fact that useful,
relevant opinion, but at the same time, the Court is expected to analyse
the report, read it in conjunction with the other evidence on record and
then form its final opinion as to whether such report is worthy of
reliance or not.
7 The case of Sudevanand [supra] is about power of
appellate court to take further evidence in the context of Section 391 of
the Code, 1973 in which it was held that such power is not limited to
recall of a witness for further crossexamination with reference to his
previous statement, but extends to taking additional evidence for any
reason to arrive at a just decision and law casts the duty upon the court
to arrive at truth by all lawful means.
8 The case of Kalyani Baskar [Mrs.] [supra] was relied on in
the context of duty of the court and rules of the procedure to be
followed scrupulously that there was no breach of rule sol as to deprive
the accused for fair trial and proper opportunities allowed by law to
prove innocence of accused to be given keeping in mind a valuable right
of defence to adduce evidence and also in view of Article 21 of the
Constitution of India. The case of Mukesh [supra], R.K.Anand [supra]
were relied on for sting operation.
9 For the cases of Haricharan Kurmi [supra], Mohd. Khalid
[supra] and Chikkarange Gowda [supra] we have already made
reference earlier since those decisions were relied on by the counsels
appearing for the State and victims and the same were elaborately
considered in this very chapter of the judgment.
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10 In the context of Sections 149 and 147 read with Section
302 of the IPC and the common object of the unlawful assembly,
reliance was placed in the case of Santosh [supra], in which the case of
Chikkarange Gowda [supra] was considered and the same is also
considered by us in this very chapter of the judgment, which defines
common object.
11 The case of Dan Singh [supra] was relied in the context of
Section 149 of IPC and ingredients of Section 149 particularly when
offence involves a large number of offenders under circumstances, only
those of the accused must be held to be members of the unlawful
assembly who have been specifically identified by at least four eye
witnesses. At the same time, the above judgment referred to earlier
decision of the Apex Court in the case of Masalti [supra] [para 32 of this
decision on the contrary considers in the context of Section 149 of the
IPC and about membership of unlawful assembly and proof of evidence.
That exaggeration or inconsequential in the testimony of the eye
witnesses not a ground to reject their evidence in its entirety in a right
case. What is to be seen is whether the basic feature of the occurrence
have been similarly viewed and/or described by the witness in a manner
which tallies with the outcome of the right.
12 The case of Roy Frernandes [supra] is in the context of
Section 149 of the IPC in which also decision in the case of Chhikarange
Gowda [supra] was considered.
13 In this case, the Apex Court had an occasion to consider
other decisions in which Section 149 of IPC was interpreted and
explained and in paras 19 to 34 it is held as under:
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“19. Section 149 IPC reads:
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.”
A plain reading of the above would show that the
provision is in two parts. The first part deals with cases
in which an offence is committed by any member of the
assembly “in prosecution of the common object” of that
assembly. The second part deals with cases where the
commission of a given offence is not by itself the
common object of the unlawful assembly but members
of such assembly `knew that the same is likely to be
committed in prosecution of the common object of the
assembly’.
20 As noticed above, the commission of the offence of
murder of Felix Felicio Monteiro was itself not the common
object of the unlawful assembly in the case at hand. And yet
the assembly was unlawful because from the evidence adduced
at the trial it is proved that the common object of the persons
comprising the assembly certainly was to either commit a
mischief or criminal trespass or any other offence within the
contemplation of clause (3) of Section 141 of the IPC, which
may to the extent the same is relevant for the present be
extracted at this stage:
“Section 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 isFirst: * * * *
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Second: * * * *
Third: To commit any mischief or criminal
trespass, or other offence”.
21 From the evidence on record, we are inclined to hold
that even when commission of murder was not the common
object of the accused persons, they certainly had come to the
spot with a view to overawe and prevent the deceased by use
of criminal force from putting up the fence in question. That
they actually slapped and boxed the witnesses, one of whom
lost his two teeth and another sustained a fracture only proves
that point.
22 What then remains to be considered is whether the
appellant as a member of the unlawful assembly knew that the
murder of the deceased was also a likely event in prosecution
of the object of preventing him from putting up the fence. The
answer to that question will depend upon the circumstances in
which the incident had taken place and the conduct of the
members of the unlawful assembly including the weapons they
carried or used on the spot. It was so stated by this Court in
Lalji and Ors. Vs. State of U.P. [1989 (1) SCC 437] in the
following words: [SCC p.441, para 8]
“8 ….Common object of the unlawful assembly can
be gathered from the nature of the assembly, arms used
by them and the behaviour of the assembly at or before
scene of occurrence. It is an inference to be deduced
from the facts and circumstances of each case.”
23 The Court elaborated the above proposition in Dharam
Pal and Ors. Vs. State of U.P. [1975 (2) SCC 596] as : [SCC
p.603, para 11]
“11. Even if the number of assailants could have been
less than five in the instant case (which, we think, on the
facts stated above, was really not possible), we think
that the fact that the attacking party was clearly shown
to have waited for the buggi to reach near the field of
Daryao in the early hours of June 7, 1967, shows pre
planning. Some of the assailants had sharp edged
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weapons. They were obviously lying in wait for the
buggi to arrive. They surrounded and attacked the
occupants shouting that the occupants will be killed. We
do not think that more convincing evidence of a pre
concert was necessary. Therefore, if we had thought it
necessary, we would not have hesitated to apply Section
34 IPC also to this case. The principle of vicarious
liability does not depend upon the necessity to convict a
required number of persons. It depends upon proof of
facts, beyond reasonable doubt, which makes such a
principle applicable. (See : Yeshwant v. State of
Maharashtra; and Sukh Ram v. State of U.P.). The most
general and basic rule, on a question such as the one we
are considering, is that there is no uniform, inflexible, or
invariable rule applicable for arriving at what is really an
inference from the totality of facts and circumstances
which varies from case to case. We have to examine the
effect of findings given in each case on this totality. It is
rarely exactly identical with that in another case. Other
rules are really subsidiary to this basic verity and depend
for their correct application on the peculiar facts and
circumstances in the context of which they are
enunciated.”
24 Coming then to the facts of the present case, the first
and foremost of the notable circumstances is that the appellant
was totally unarmed for even according to the prosecution
witnesses he had pushed, slapped and boxed those on the spot
using his bare hands. The second and equally notable
circumstance is that neither the cycle chain nor the belt
allegedly carried by two other members of the unlawful
assembly was put to use by them.
25 Mr. Luthra argued that the prosecution had failed to
prove that the assembly was armed with a chain and a belt for
the seizure witnesses had not supported the recovery of the
said articles from the accused. Even if we were to accept the
prosecution case that the two of the members of the unlawful
assembly were armed as alleged, the nonuse of the same is a
relevant circumstance. It is common ground that no injuries
were caused by use of those weapons on the person of the
deceased or any one of them was carrying a knife. The
prosecution case, therefore, boils down to the appellant and his
four companions arriving at the spot, one of them giving a
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knife blow to the deceased in his thigh which cut his femoral
artery and caused death.
26 The question is whether the sudden action of one of the
members of the unlawful assembly constitutes an act in
prosecution of the common object of the unlawful assembly
namely preventing of erection of the fence in question and
whether the members of the unlawful assembly knew that such
an offence was likely to be committed by any member of the
assembly. Our answer is in the negative.
27 This Court has in a long line of decisions examined the
scope of Section 149 of the Indian Penal Code. We remain
content by referring to some only of those decisions to support
our conclusion that the appellant could not in the facts and
circumstances of the case at hand be convicted under Section
302 read with Section 149 of the IPC.
28 In Chikkarange Gowda & Ors. Vs. State of Mysore [AIR
1956 SC 731] this Court was dealing with a case where the
common object of the unlawful assembly simply was to
chastise the deceased. The deceased was, however, killed by a
fatal injury caused by certain member of the unlawful
assembly. The court below convicted the other member of the
unlawful assembly under Section 302 read with Section 149
IPC. Reversing the conviction, this Court held : [AIR p.735,
para 9]
“9. It is quite clear to us that on the finding of the High
Court with regard to the common object of the unlawful
assembly, the conviction of the appellants for an offence
under Section 302 read with Section 149 Indian Penal
Code cannot be sustained. The first essential element of
Section 149 is the commission of an offence by any
member of an unlawful assembly; the second essential
part is that the offence must be committed in
prosecution of the common object of the unlawful
assembly, or must be such as the members of that
assembly knew to be likely to be committed in
prosecution of the common object.
In the case before us, the learned Judges of the High
Court held that the common object of the unlawful
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assembly was merely to administer a chastisement to
Putte Gowda. The learned Judges of the High Court did
not hold that though the common object was to chastise
Putte Gowda, the members of the unlawful assembly
knew that Putte Gowda was likely to be killed in
prosecution of that common object. That being the
position, the conviction under Section 302 read with
Section 149 Indian Penal Code was not justified in law.”
29 In Gajanand & Ors. Vs. State of Uttar Pradesh [AIR 1954
SC 695], this Court approved the following passage from the
decision of the Patna High Court in Ram Charan Rai Vs.
Emperor [AIR pp. 242243]
“Under Section 149 the liability of the other members for
the offence committed during the continuance of the
occurrence rests upon the fact whether the other
members knew before hand that the offence actually
committed was likely to be committed in prosecution of
the common object. Such knowledge may reasonably be
collected from the nature of the assembly, arms or
behavior, at or before the scene of action. If such
knowledge may not reasonably be attributed to the other
members of the assembly then their liability for the
offence committed during the occurrence does not arise”.
30 This Court then reiterated the legal position as under :
[Gajanand case [AIR 1954 SC 695, AIR p.699, para 9]
“The question is whether such knowledge can be
attributed to the appellants who were themselves not
armed with sharp edged weapons. The evidence on this
point is completely lacking. The appellants had only
lathis which may possibly account for Injuries 2 and 3 on
Sukkhu’s left arm and left hand but they cannot be held
liable for murder by invoking the aid of Section 149 IPC.
According to the evidence only two persons were armed
with deadly weapons. Both of them were acquitted and
Sosa, who is alleged to have had a spear, is absconding.
We are not prepared therefore to ascribe any knowledge
of the existence of deadly weapons to the appellants,
much less that they would be used in order to cause
death.”
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31 In Mizaji and Anr. Vs. State of U.P. [AIR 1959 SC 572]
this Court was dealing with a case where five persons armed
with lethal weapons had gone with the common object of
getting forcible possession of the land which was in the
cultivating possession of the deceased. Facing resistance from
the person in possession, one of the members of the assembly
at the exhortation of the other fired and killed the deceased.
This Court held that the conduct of the members of the
unlawful assembly was such as showed that they were
determined to take forcible possession at any cost. Section 149
of IPC was, therefore, attracted and the conviction of the
members of the assembly for murder legally justified.
32 This Court analysed Section 149 in the following words :
[Mizaji case [AIR 1959 SC 572], AIR, p.576, para 6]
“6. This section has been the subject matter of
interpretation in the various High Court of India, but
every case has to be decided on its own facts. The first
part of the section means that the offence committed in
prosecution of the common object must be one which is
committed with a view to accomplish the common
object. It is not necessary that there should be a
preconcert in the sense of a meeting of the members of
the unlawful assembly as to the common object; it is
enough if it is adopted by all the members and is shared
by all of them. In order that the case may fall under the
first part the offence committed must be connected
immediately with the common object of the unlawful
assembly of which the accused were members. Even if
the offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under
section 149 if it can be held that the offence was such as
the members knew was likely to be committed. The
expression ‘know’ does not mean a mere possibility, such
as might or might not happen. For instance, it is a matter
of common knowledge that when in a village a body of
heavily armed men set out to take a woman by force,
someone is likely to be killed and all the members of the
unlawful assembly must be aware of that likelihood and
would be guilty under the second part of section 149.
Similarly, if a body of persons go armed to take forcible
possession of the land, it would be equally right to say
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that they have the knowledge that murder is likely to be
committed if the circumstances as to the weapons
carried and other conduct of the members of the
unlawful assembly point to such knowledge on the part
of them all.”
33 In Shambhu Nath Singh and Ors. Vs. State of Bihar [AIR
1960 SC 725], this Court held that : [AIR p.727, para 6]
“6 …. members of an unlawful assembly may have a
community of object upto 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. As a consequence, the
effect of Section 149 of the Indian Penal Code may be
different on different members of the same unlawful
assembly. Decisions of this Court Gangadhar Behera and
Others Vs. State of Orissa [2002 (8) SCC 381] and
Bishna Alias Bhiswadeb Mahato and Others Vs. State of
West Bengal [2005 (12) SCC 657] similarly explain and
reiterate the legal position on the subject”.
14 The cases of Bhagwan Das [supra] and Sanjay Rai [supra]
are relied on by learned Special Public Prosecutor to which we have
already made reference in this very chapter of the judgment.
15 In the cases of Ugar Ahir [supa] and Devi Lal [supra], the
Apex Court held that the prosecution is not permitted to its story
changed the version of the prosecution altogether evolving a new theory
nor it is open for the court to do so.
PART XIF
Analysys of case law relied on by Shri I.H.Syed, learned counsel for
the defence
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1 The case of Karan Singh [supra] was relied on the aspect of
duty cast upon investigating officer not to indulge into unnecessary
harassment either to the complainant or to the accused and that his
conduct must be entirely impartial and must dispel any suspicion
regarding genuineness of the investigation. In the very judgment, the
Apex Court relied on in the case of State [Govt. of NCT of Delhi]
[supra]. Paras 16 to 20 of the judgment read as under:
“16 The investigation into a criminal offence must be free
from any objectionable features or infirmities which may give
rise to an apprehension in the mind of the complainant or the
accused, that investigation was not fair and may have been
carried out with some ulterior motive. The Investigating
Officer must not indulge in any kind of mischief, or cause
harassment either to the complainant or to the accused. His
conduct must be entirely impartial and must dispel any
suspicion regarding the genuineness of the investigation. The
Investigating Officer, “is not merely present to strengthen the
case of the prosecution with evidence that will enable the court
to record a conviction, but to bring out the real unvarnished
version of the truth.” Ethical conduct on the part of the
investigating agency is absolutely essential, and there must be
no scope for any allegation of mala fides or bias. Words like
‘personal liberty’ contained in Article 21 of the Constitution
of India provide for the widest amplitude, covering all kinds
of rights particularly, the right to personal liberty of the
citizens of India, and a person cannot be deprived of the
same without following the procedure prescribed by law. In
this way, the investigating agencies are the guardians of the
liberty of innocent citizens. Therefore, a duty is cast upon
the Investigating Officer to ensure that an innocent person
should not suffer from unnecessarily harassment of false
implication, however, at the same time, an accused person
must not be given undue leverage. An investigation cannot
be interfered with or influenced even by the courts.
Therefore, the investigating agency must avoid entirely any
kind of extraneous influence, and investigation must be
carried out with equal alacrity and fairness irrespective of
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investigation definitely leads to the miscarriage of criminal
justice, and thus deprives a man of his fundamental rights
guaranteed under Article 21 of the Constitution. Thus, every
investigation must be judicious, fair, transparent and
expeditious to ensure compliance with the rules of law, as is
required under Articles 19, 20 and 21 of the Constitution.
(Vide: Babubhai v. State of Gujarat and Ors., (2010) 12 SCC
254).
17 In Ram Bihari Yadav v. State of Bihar and Ors., AIR
1998 SC 1850, this Court observed, that if primacy is given
to a designed or negligent investigation, or to the omissions
or lapses created as a result of a faulty investigation, the
faith and confidence of the people would be shaken not only
in the law enforcing agency, but also in the administration
of justice. A similar view has been reiterated by this Court
in Amar Singh v. Balwinder Singh and Ors., AIR 2003 SC
1164 .
18 Furthermore, in Ram Bali v. State of Uttar Pradesh,
AIR 2004 SC 2329 : (2004 AIR SCW 2748), it was held by
this Court that the court must ensure that the defective
investigation purposely carried out by the Investigating
Officer, does not affect the credibility of the version of
events given by the prosecution.
19 Omissions made on the part of the Investigating
Officer, where the prosecution succeeds in proving its case
beyond any reasonable doubt by way of adducing evidence,
particularly that of eyewitnesses and other witnesses,
would not be fatal to the case of the prosecution, for the
reason that every discrepancy present in the investigation
does not weigh upon the court to the extent that it
necessarily results in the acquittal of accused, unless it is
proved that the investigation was held in such manner that
it is dubbed as “a dishonest or guided investigation”, which
will exonerate the accused. (See: Sonali Mukherjee v. Union of
India, (2010) 15 SCC 25 : (AIR 2010 SC (Supp) 415) : (2010
AIR SCW 499); Mohd. Imran Khan v. State Government (NCT
of Delhi), (2011) 10 SCC 192 : (2011 AIR SCW 6821); Sheo
Shankar Singh v. State of Jharkhand and Anr., AIR 2011 SC
1403 : (2011 AIR SCW 1845); Gajoo v. State of Uttarakhand,
(2012) 9 SCC 532 : (2012 AIR SCW 5598); Shyamal Ghosh v.
State of West Bengal, AIR 2012 SC 3539 : (2012 AIR SCW
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4162); and Hiralal Pandey and Ors. v. State of U.P., AIR 2012
SC 2541) : (2012 AIR SCW 2503).
20 Thus, unless lapses made on the part of Investigating
authorities are such, so as to cast a reasonable doubt on the
case of the prosecution, or seriously prejudice the defence of
the accused, the court would not set aside the conviction of the
accused merely on the ground of tainted investigation”.
2 On the above issue, cases of Sunil Kundu [supra] and
Adambhai Sulemanbhai Ajmeri [supra] are relied.
3 The case of Dilavar Hussain [supra] was relied on the point
that heinousness of crime or cruelty in its execution howsoever
abhorring and hateful cannot be reflected in deciding the guilt. Paras
3 and 4 of the judgment read as under:
“3 All this generated a little emotion during submissions.
But sentiments or emotions, howsoever, strong are neither
relevant nor have any place in a court of law. Acquittal or
conviction depends on proof 111 or otherwise of the
criminological chain which invariably comprises of why,
where, when, how and who. Each knot of the chain has to be
proved, beyond shadow of doubt to bring home the guilt. Any
crack or loosening in it weakens the prosecution. Each link,
must be so consistent that the, only conclusion which must
follow is that the accused is guilty. Although guilty should not
escape. But on reliable evidence truthful witnesses and honest
and fair investigation. No free man should be amerced by
framing or to assuage feelings as it is fatal to human dignity
and destructive of social, ethical and legal norm.
Heinousness of crime or cruelty in its execution howsoever
abhorring and hateful cannot reflect in deciding the guilt.
4 Misgiving, also, prevailed about appreciation of
evidence. Without adverting to submissions suffice it to
mention that credibility of witnesses has to be measured with
same yardstick, whether, it is an ordinary crime or a crime
emanating due to communal frenzy. Law does not make any
distinction either in leading of evidence or in its assessment.
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Rule is one and only one namely, if depositions are honest
and true: Whether the witnesses, who claim to have seen the
incident in this case, withstand this test is the issue? But
before that some legal and general questions touching upon
veracity of prosecution version may be disposed of”.
4 The cases of B. Sarwan Singh Ratan Singh [supra] was
relied on by Mr. A.D.Shah, learned counsel for the defence, the reference
of which is made in this chapter of judgment.
5 The case of Aloke Nath Dutt [supra] was relied on the point
of confession [paras 87 to 90]. The court also considered constitutional
protection given to accused and retracted confession along with
legislative paradigm of retracted confession and evidentiary value of
retracted confession [paras 95 to 117]. Paras 87 to 90 and 95 to 117 of
the judgment read as under:
“CONFESSION GENERALLY:
87 Confession ordinarily is admissible in evidence. It is a
relevant fact. It can be acted upon. Confession may under
certain circumstances and subject to law laid down by the
superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the
court has to satisfy itself in regard to: (i) voluntariness of the
confession; (ii) truthfulness of the confession; (iii)
corroboration.
88 This Court in Shankaria v. State of Rajasthan [(1978) 3
SCC 435] stated the law thus : [SCC p.443, para 23]“23 This confession was retracted by the appellant
when he was examined at the trial Under Section 313
Cr. P.C. on June 14, 1975. It is well settled that a
confession, if voluntarily and truthfully made, is an
efficacious proof of guilt. Therefore, when in a capital
case the prosecution demands a conviction of the
accused, primarily on the basis of his confession
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apply a double test:
[1] Whether the confession was perfectly voluntary?
[2] If so, whether it is true and trustworthy ?
Satisfaction of the first test is a sine quo non for its
admissibility in evidence. If the confession appears to the
Court to have been caused by any inducement, threat or
promise such as is mentioned in Section 24, Evidence
Act, it must be excluded and rejected brevi manu. In
such a case, the question of proceeding further to apply
the second test does not arise. If the first test is satisfied,
the Court must before acting upon the confession reach
the finding that what is stated therein is true and
reliable. For judging the reliability of such a
confession, or for that matter of any substantive piece
of evidence there is no rigid canon of universal
application. Even so, one broad method which may be
useful in most cases for evaluating a confession, may
be indicated. The Court should carefully examine the
confession and compare it with the rest of the
evidence, in the light of the surrounding
circumstances and probabilities of the case. If on such
examination and comparison, the confession appears
to be a probable catalogue of events and naturally fits
in with the rest of the evidence and the surrounding
circumstances, it may be taken to have satisfied the
second test.”
[Also see Anil @ Raju Namdev Patil v. Administration of
Daman and Diu, Daman and Anr. [(2006)13 SCC 36.
89 A detailed confession which would otherwise be within
the special knowledge of the accused may itself be not
sufficient to raise a presumption that confession is a truthful
one. Main features of a confession are required to be verified.
If it is not done, no conviction can be based only on the sole
basis thereof.
90 In Muthuswami v. State of Madras [AIR 1954 SC 4], this
Court opined :
“8. The only reason the High Court give for accepting the
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there was intrinsic material to indicate its genuineness.
But the only feature the learned Judges specify is that it
contains a wealth of detail which could not have been
invented. But the point overlooked is that none of this
detail has been tested. The confession is a long and
rambling one which could have been invented by an
agile mind or pieced together after tutoring. What would
have been difficult is to have set out a true set of facts in
that manner. But unless the main features of the story
are shown to be true, it is, in our opinion, unsafe to
regard mere wealth of uncorroborated detail as a
safeguard of truth.”
“Constitutional Postulates and Retracted confession :
95 Article 20(3) of the Constitution of India provides that
no person accused of any offence shall be compelled to be a
witness against himself. The right to remain silent is an
extension of the rule of civil liberty enjoined by our
Constitution.
96 Considering the guarantee under Article 20 (3) and
also humanizing standards under Article 21 we need to
tread cautiously while construing retracted confession.
Although such caution is subject to some exceptions such as
per se evidence of the motivating factors of retraction or
retraction based on extraneous circumstances.
97 In this regard it is important to address the scope and
ambit of Article 20(3) i.e. at which stage of criminal process
the safeguard becomes operative. In Smt. Nandini Satpathy v.
P.L. Dani and Another [AIR 1978 SC 1025], this Court stated
the law thus : [SCC p.454, para 57]
“57. We hold that Section 161 enables the police to
examine the accused during investigation. The
prohibitive sweep of Article 20(3) goes back to the stage
of police interrogation not, as contended, commencing
in court only. In our judgment, the provisions of Article
20(3) and Section 161(1) substantially cover the same
area, so far as police investigations are concerned. The
ban on selfaccusation and the right to silence, while one
investigation or trial is under way, goes beyond that case
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and protects the accused in regard to other offences
pending or imminent, which may deter him from
voluntary disclosure of criminatory matter.”
98 In this context, it will be useful to refer to the following
passage from the decision of this Court in State (N.C.T. of
Delhi) v. Navjot Sandhu @ Afsan Guru [(2005)11SCC 600] :
[SCC p.721, para 159]
“This Court rejected the contention advanced on behalf
of the State that the two provisions, namely, Article
20(3) and Section 161, did not operate at the anterior
stages before the case came to Court and the
incriminating utterance of the accused, previously
recorded, was attempted to be introduced. Noting that
the landmark decision in Miranda v. Arizona [1966, 384
US 436] did extend the embargo to police investigation
also, the Court observed that there was no warrant to
truncate the constitutional protection underlying Article
20(3). It was held that even the investigation at the
police level is embraced by Article 20(3) and this is what
precisely Section 161 means.”
[See also Directorate of Enforcement v. Deepak Mahajan and
Another, (1994)3 SCC 440], and Balkishan A. Devidayal v.
State of Maharashtra, (1980) 4 SCC 600].
99 To withdraw from what has been said previously
needs to be interpreted in the vein of right to remain silent
as an extension of this civil liberty. The quality or merit of
confession, in no uncertain terms, is in voluntary narration
by the accused. At the same time we are equally in know of
the troubled times the judiciary is plagued with. The issue of
evidentiary standards is a very delicate one and has a great
bearing on the outcome of cases. But be it as it may, basic
tenets of criminal law can not be lost sight of. In similar vein
the law on retracted confession must be judged in the
context of each case.
100 Legislative paradigm on retracted confession : In this
regard it is important to consider the retracted confession
within the legislative paradigm laid down under Sections 24 to
26 of the Indian Evidence Act and Section 162(1) and Section
164 of the Code of Criminal Procedure, 1973.
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101 Also it will be in the fitness of the case to appraise the
value of retracted confession for the coaccused under section
30 of The Indian Evidence Act a little later.
102 Sections 24 to 30 deal with confession. Section 24
speaks of the effect of a confession made by an accused
through inducement, threat or promise proceeding from a
‘person in authority’. Whereas section 25 and section 26 deal
with situations where such ‘person in authority’ is police. It is
an institutionalized presumption against confession extracted
by police or in police custody. In that frame of reference,
Section 24 is the genus and sections 25 and 26 are its species.
In other words, section 25 and section 26 are simple corollaries
flowing out of the axiomatic and generalized proposition
(confession caused by inducement where inducement proceeds
from a person in authority, is bad in law) contained in section
24. They are directed towards assessing the value of a
confession made to a police officer or in police custody.
103 The policy underlying behind Sections 25 and 26 is to
make it a substantive rule of law that confessions whenever
and wherever made to the police, or while in the custody of the
police unless made in the immediate presence of a magistrate,
shall be presumed to have been obtained under the
circumstances mentioned in Section 24 and, therefore,
inadmissible, except so far as is provided by Section 27 of the
Act.
104 Section 164, however, makes the confession before a
Magistrate admissible in evidence. The manner in which
such confession is to be recorded by the Magistrate is
provided under Section 164 of the Code of Criminal
Procedure. The said provision, inter alia, seeks to protect an
accused from making a confession, which may include a
confession before a Magistrate, still as may be under
influence, threat or promise from a person in authority. It
takes into its embrace the right of an accused flowing from
Article 20(3) of the Constitution of India as also Article 21
thereof. Although, Section 164 provides for safeguards, the
same cannot be said to be exhaustive in nature. The
Magistrate putting the questions to an accused brought
before him from police custody, should some time, in our
opinion, be more intrusive than what is required in law.
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[See Babubhai Udesinh Parmar v. State of Gujarat 2006 (12)
SCALE 385].
105 In a case, where confession is made in the presence of
a Magistrate conforming the requirements of Section 164, if
it is retracted at a later stage, the court in our opinion,
should probe deeper into the matter. Despite procedural
safeguards contained in the said provision, in our opinion,
the learned Magistrate should satisfy himself that whether
the confession was of voluntary nature. It has to be
appreciated that there can be times where despite such
procedural safeguards, confessions are made for unknown
reasons and in fact made out of fear of police.
106 Judicial confession must be recorded in strict
compliance of the provisions of Section 164 of the Code of
Criminal Procedure. While doing so, the court shall not go
by the black letter of law as contained in the
aforementioned provision; but must make further probe so
as to satisfy itself that the confession is truly voluntary and
had not been by reason of any inducement, threat or
torture.
107 The fact that the accused was produced from the
police custody is accepted. But it was considered in a
routine manner. The learned Magistrate in his evidence
could not even state as to whether the appellants had any
injury on his person or whether there had been any tainted
marks therefor.
108 The courts while applying the law must give due regard
to its past experience. The past experience of the courts as also
the decisions rendered by the superior courts should be taken
as a wholesome guide. We must remind ourselves that despite
the fact that procedural safeguards contained in Section 164 of
the Cr. P.C. may be satisfied, but the courts must look for
truthfulness and voluntariness thereof. It must, however, be
remembered that it may be retracted subsequently. The court
must, thus, take adequate precaution. Affirmative indication of
external pressure will render the retracted confession nugatory
in effect. The court must play a proactive role in unearthing
objective evidence forming the backdrop of retraction and later
the examination of such evidence of retraction. However in
cases where none exists, the court must give the benefit of
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doubt to the accused. Where there is no objective material
available for verifying the conditions in which the confession
was retracted, the spirit of section 24 of the Evidence Act
(irrelevance of confession caused by inducement) may be
extended to retracted confession. An inverse presumption must
be drawn from absence of materials.
109 In a case of retracted confession, the courts while
arriving at a finding of guilt would not ordinarily rely solely
thereupon and would look forward for corroboration of
material particulars. Such corroboration must not be referable
in nature. Such corroboration must be independent and
conclusive in nature.
Evidentiary value of retracted confession :
110 A retracted confession of a coaccused cannot be relied
upon for the purpose of finding corroboration for the retracted
confession of an accused. It was so held in Bhuboni Sahu v. R.
[AIR 1949 PC 257], stating : [IA p.156]
“The court may take the confession into consideration
and thereby no doubt, makes its evidence on which
the court may act; but the section does not say that
the confession is to amount to proof. Clearly there
must be other evidence. The confession is only one
element in the consideration of all the facts proved in
the case; it can be put into the scale and weighed with
the other evidence.”
[See Hari Charan Kurmi and Jogia Hajam v. State of Bihar
(1964) 6 SCR 623]
111 However, we are not unmindful of the fact that in this
country, retractions are as plentiful as confessions. In a case of
retracted confession, the courts should evidently be a little
slow in accepting the confession, although the accused may not
be able to fully justify the reasons for his retraction.
112 It is interesting to note that in R. v. Thompson, [1893, 2
QB 12, 18], Cave, J. stated the law thus : [All ER p.380 AC]
“I would add that for my part I always suspect these
confessions which are supposed to be the offspring of
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penitence and remorse and which nevertheless are
repudiated by the prisoner at the trial. It is
remarkable that it is of very rare occurrence for
evidence of a confession to be given when the proof of
the prisoner’s guilt is otherwise clear, and satisfactory,
but when it is not clear and satisfactory, the prisoner
is not frequently alleged to have been seized with a
desire, born of penitence and remorse, to supplement
it with a confession a desire which vanishes as soon as
he appears in a court of justice.”
Straight J, observed in R v. Babulal, [ILR (1884)6 All 509][ILR
at pp. 542 & 543]
“An endless source of anxiety and difficulty to those who
have to see that justice is properly administered, I have
said, and repeat now, it is incredible that the
extraordinarily large number of confessions, which come
before us in the criminal cases disposed of by this court,
either in appeal or revision, should have been voluntarily
and freely made in every instance as represented the
retraction follows almost invariably as a matter of
course” .
[See Sarkar on Evidence, 15th Edn. Volume 1 page 466]
113 The value of a retracted confession is now wellknown.
The court must be satisfied that the confession at the first
instance is true and voluntary. [See Subramania Goundan v.
The State of Madras [AIR 1958 SC 66] and Pyare Lal Bhargava
v. State of Rajasthan, [AIR 1963 SC 1094].
114 Caution and prudence in accepting a retracted
confession is an ordinary rule. [See Puran v. The State of
Punjab AIR 1953 SC 459]. Although if a retracted confession
is found to be corroborative in material particulars, it may be
the basis of conviction. [Balbir Singh v. State of Punjab AIR
1957 SC 216].
115 We may notice that in 1950’s and 1960’s corroborative
evidence in “material particulars” was the rule. [See Puran
(supra), Balbir Singh (supra), Nand Kumar and Others v. State
of Rajasthan 1963 Crl. LJ 702]. A distinctiveness was made in
later years in favour of “general corroboration” or “broad
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corroboration”. [See for General Corroboration State of
Maharashtra v. Bharat Chaganlal Raghani and Others [(2001)
9 SCC 1]; “General trend of Corroboration” Jameel Ahmed
and Another v. State of Rajasthan [(2003) 9 SCC 673]; and
“Broad Corroboration” Parmananda Pegu v. State of Assam
[AIR 2004 SC 4197].
116 Whatever be the terminology used, one rule is almost
certain that no judgment of conviction shall be passed on an
uncorroborated retracted confession. The court shall
consider the materials on record objectively in regard to the
reasons for retraction. It must arrive at a finding that the
confession was truthful and voluntary. Merit of the
confession being the voluntariness and truthfulness, the
same, in no circumstances, should be compromised. We are
not oblivious of some of the decisions of this Court which
proceeded on the basis that conviction of an accused on the
basis of a retracted confession is permissible but only if it is
found that retraction made by the accused was wholly on a
false premise. [See Balbir Singh (supra)].
117 There cannot, however, be any doubt or dispute that
although retracted confession is admissible, the same should be
looked with some amount of suspicion a stronger suspicion
than that which is attached to the confession of an approver
who leads evidence to the court”.
6 The case of Haricharan Kurmi [supra] was relied on by Ms.
Nitya Ramkrishnan the discussion of which is made in this chapter of
judgment.
7 The case of Krishnan [supra] was relied on the point of
credibility, trustworthiness and truthfulness of eye witnesses. Paras 21
to 24 of the judgment read as under:
“21 It is trite that where the eyewitnesses’ account is found
credible and trustworthy, medical opinion pointing to
alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and ears of justice.
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Hence the importance and primacy of the quality of the trial
process. Eye witnesses’ account would require a careful
independent assessment and evaluation for their credibility
which should not be adversely prejudged making any other
evidence, including medical evidence, as the sole touchstone
for the test of such credibility. The evidence must be tested for
its inherent consistency and the inherent probability of the
story; consistency with the account of other witnesses held to
be creditworthy; consistency with the undisputed facts the
‘credit’ of the witnesses; their performance in the witnessbox;
their power of observation etc. Then the probative value of
such evidence becomes eligible to be put into the scales for a
cumulative evaluation.
22 A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt. Though
this standard is a higher standard, there is, however, no
absolute standard. What degree of probability amounts to
‘proof’ is an exercise particular to each case. Referring to of
probability amounts to ‘proof’ is an exercise the inter
dependence of evidence and the confirmation of one piece of
evidence by another a learned author says: (See “The
Mathematics of Proof II”: Glanville Williams: Criminal Law
Review, 1979, by Sweet and Maxwell, p.340(342).
“The simple multiplication rule does not apply if the
separate pieces of evidence are dependent. Two events
are dependent when they tend to occur together, and the
evidence of such events may also be said to be
dependent. In a criminal case, different pieces of
evidence directed to establishing that the defendant did
the prohibited act with the specified state of mind are
generally dependent. A junior may feel doubt whether to
credit an alleged confession, and doubt whether to infer
guilt from the fact that the defendant fled from justice.
But since it is generally guilty rather than innocent
people who make confessions, and guilty rather than
innocent people who run away, the two doubts are not
to be multiplied together. The one piece of evidence may
confirm the other.”
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23 Doubts would be called reasonable if they are free from
a zest for abstract speculation. Law cannot afford any favourite
other than truth. To constitute reasonable doubt, it must be
free from an over emotional response. Doubts must be actual
and substantial doubts as to the guilt of the accused persons
arising from the evidence, or from the lack of it, as opposed to
mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt
based upon reason and commonsense. It must grow out of the
evidence in the case.
24 The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof
beyond reasonable doubt. There is an unmistakable subjective
element in the evaluation of the degrees of probability and the
quantum of proof. Forensic probability must, in the last
analysis, rest on a robust common sense and, ultimately, on the
trained intuitions of the judge. While the protection given by
the criminal process to the accused persons is not to be eroded,
at the same time, uninformed legitimization of trivialities
would make a mockery of administration of criminal justice.
This position was illuminatingly stated by Venkatachalia, J(as
His Lordship then was) in State of U.P. v. Krishna Gopal and
Anr. (AIR 1988 SC 2154)”.
[Emphasis is supplied in all the above paragraphs of concerned
cases by us]
8 All the above judgments reveal law laid down by the Apex
Court with regard to various provisions of IPC, Code of Criminal
Procedure 1973 and Evidence Act, to which reference is made by
learned counsel for the parties in the context of evidence emerging in
the facts and circumstances of the case. That principles, parameters,
factors and even guidelines to some extent emerging from the above
decisions to which we have applied our mind in the context of
submissions made by learned counsels for the parties and emphasis
supplied therein is to be understood and construed as our understanding
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of law in this regard.
9 We are in complete agreement with the law laid down by
the Apex Court in all the above cases and we do not propose to add,
alter or put it in a different manner inasmuch as common thread which
run through all the above judgments is about believing the witness on
the analysis of his testimony based on its trustworthiness, truthfulness,
inspiring confidence, and therefore, such statement is reliable and
quality of the testimony and not quantity of the witnesses, provided such
testimony fulfills other requirements of law is important viz. basic
ingredients of the offence, lawful procedure adopted by the Investigating
Agency and bringing admissible evidence on record by the prosecution
within the four corners of penal statute, Code of Criminal Procedure,
1973 and law of Evidence.
VOLUMEIII
PART XII
APPRECIATION OF EVIDENCE
PART XIIA
PASSENGERS / INJURED / EYE WITNESSES AND OTHER WITNESSES
ON DEADLY ASSAULT BY MEMBERS OF UNLAWFUL ASSEMBLY
1 It is the case of the prosecution that several coaches of
Sabarmati Express, more particularly, Coach No.S6 was attacked by
the assailants; about 1000 to 1500 in number. Whole coach No.S6
was surrounded on one side i.e. platform side by the assailants.
Therefore the victims inside the boggy i.e s6 would be able to give
first hand account of the incident in question.
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2 For that purpose, we have demarcated the testimonies of
the occupants of coach S6 in three groups according to the seats or
the places near the seats they were occupying at the relevant point of
time. Group-1 comprises of those occupying seats No.1 to 25 and its
surroundings; Group-2 comprises of those occupying seats No.26 to 51
and its surroundings and Group-3 comprises of those occupying seats
No.52 to 72 and its surroundings.
3 It is the case of the prosecution that fire in the train started
at the end of the coach i.e. somewhere around Seat No.72. Therefore, it
will be relevant to first note the testimonies of the victims occupying or
present near Seat No.52 to 72. Those witnesses are PW-82 (Seat
Nos.58, 59 and 61), PW-94 (Seat No.60 or 62), PW-114 (Seat Nos.69,
70 and 71), PW-84, 87 & 88 – unauthorized occupants occupying the
space near Seat No.70. PW-91 and 92 present near Seat No.72
unauthorized occupants, PW-99, 102 & 103 – unauthorized occupants,
PW-99, 102 & 103 – authorized passengers in coach No.S7, but
occupying space between toilet in the end of coach No.S6.
4 Before discussing the testimony of witnesses groupwise,
it would be convenient to tabulate those testimonies as under:
The crucial facts emerging from deposition of this witness
Subhashchandra Ramchandra Mishra PW114 occupying Seat Nos.69,
70 and 71 are mentioned below. In Column No.2 other witnesses
corroborating the facts referred to by the witness in Column No.1 are
also mentioned
Particulars of Crucial facts Prosecution Witnesses who
corroborate the following pointwise
crucial facts
1. Arrival of Sabarmati express PWs-77, 78, 94, 84, 86, 87, 88, 89
between 6:30 a.m. and 7:30 91, 93, 95, 98, 99, 102, 103, 96,Page 620 of 988
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a.m. on 27/02/2002 107, 120, 79, 81, 89, 97, 113, 202,
164, 150, 152, 154, 155, 159, 172. ,
138, 228, 136, 135, 127, 128
2. It’s halt of five minutes Pws84, 91, 99, 79, 119,
3. Its movement and halting PWs-77, 82, 84, 86, 94, 102, 103,
again and restarting 78, 96, 107, 120, 79, 89, 97, 113,
202, 85, 150, 152, 154, 155, 159,
172, , 138, 228, 136, 135, 127, 128,
4. Its movement again and PWs-77, 84, 95, 107, 79, 119, 81,
halt after covering a 113, 202, 82, 85, 127,
distance of about one or
one and half kilometer
5. Stone pelting from outside. PWs-77, 82, 84, 87, 91, 92, 94, 95,
98, 99, 102, 103, 78, 86, 89, 120,
79, 81, 113, 202, 152, 154, 155,
159, , 172, , 38, 228, 136, 135, 127
6. Closing of the windows and PWs87, 91, 92, 94, 95, 102 , 120,
doors 79, 81, 97, 119
7. Deposes that the window of
the seats occupied by him
did not have aluminum
protection, but it had a
protection of glass which
gave way to stone pelting.
8. Breaking of the window PWs-77, 82, 84, 86, 87, 91, 92, 93,
and doors due to stone 94, 95, 99, 102, 103, 120, 79, 119,
pelting. 81, 97, 113, 202, 150, 152
9. He moved to the toilet side
for safety along with his
sister and mother.
10. Two miscreants PWs-77 [corroborates the triggering
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window and ignited it and i.e. somewhere near seat No.72],
thereby triggering the PW86 [states that he heard from
smoke. the direction of seat No.72 that
coach has caught fire], PW95
[corroborates the factum of
triggering of smoke, fire and
suffocation], 98 [corroborates
triggering of smoke], PW99
[corroborates breaking of glass
windows and eruption and
spreading of fire and smoke and
suffocation], PW102 [corroborate
breaking of fire], PW103
[corroborates eruption of fire and
smoke], PW96 [corroborates
eruption of fire and smoke at the
end of the coach and he sustained
burn injuries on both hands], PW
107 [corroborates the sprinkling of
inflammable, throwing of burning
rags, setting ablaze the coach at its
end and triggering of smoke], PW
120 [corroborates breaking of
glasses of windows, setting ablaze
the coach, triggering of smoke],
PW97 [was occupant of S/6 seat
No.11 and 13; corroborates hearing
of screams from the rear end of the
coach that the coach has caught fire
and noticed the smoke and sensesPage 622 of 988
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the smell of petrol and also deposes
that his wife started coughing
because of smoke], PW113 [seat
Nos.8 and 72; hears shattering of
bottle and notices smoke,
experiences suffocation, hears
screams that the coach has caught
fire; deposes that density / thickness
of smoke caused blinding effect.
11. Suffocation on PWs-77, 82, 84, 85, 86, 87, 91, 92,
account of smoke and 95, 98, 99, 103, 79, 119, 81, 113,
therefore opening of the 202, 150, 152, 154, 155, 172, ,
door and disembarking the
coach along with his
mother and sister.
12. When standing near PWs-88, 93, 99, 102
toilet, knocking of sliding
door
13. Noticing the coach in Pws-88, 91, 89, 94, 96, 99, 120,
flames after disembarking. 150, 152, 154, 155, 159, , 172, ,
127, 128
Omissions / improvements /
proved through PW244 Mr. Noel
Parmar, Investigating Officer.
1. Admits having not stated in his
statement dated 08.05.2002 that “I
saw that two boys had placed hey
of grass from outside on the broken
window and ignited it and that is
how the smoke was generated”.
2. Admits that he did not state in
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his statement dated 08.05.2002
that when he was standing near
toilet, he heard knocking of sliding
door at his back, from outside.
In the above table, we have pointed out the witnesses
corroborating the facts deposed by PW114. For the sake of brevity,
we avoid repetition of such corroborative facts while referring to
other corroborating witnesses and we refer to only additional facts
deposed to by the following corroborative witnesses.
PW-77 Rajendra Ramfersing Rajput (Occupying Reserved Seats
No.62, 63 and 64)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Movement of the train and at
that time window was open
2. Sees 1000 to 1500 people on PWs-94, 87, 103, 96, 107, 81,
the platform pelting stone and 164, 171, 228, 127, 128, 85.
charging towards the train, Almost all the witnesses are
holding weapons and sticks consensus ad idem on these facts.
3. People trying to escape from
windows for safety
4. Receives burn injuries on
hand, leg and ear
5. Taken to Civil Hospital
6. Indoor patient for three days.
7. The smoke started from rear PWs-82, 94, 95, 228, 136, 128
of the coach
Contradictions / omissions
1. Admits that in his statement dated
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08.05.02, he stated that “at that point
of time, some Karsevaks came running
in our coach and stated that there was
a quarrel with a tea vendor and stones
were being pelted and therefore get
inside”
2. Admits that he omitted to mention
in his statement that “the said windows
were broken due to attack by sticks
and pipes”.
3. Confronted with two statements
being 06.03.02 wherein he stated that
he himself came out of window and the
statement dated 08.05.02 wherein he
has stated that he fell unconscious and
was helped by somebody, and states
that the first statement is correct.
PW-82 Verpal C. Pal (Seat Nos.58, 59 and 61, occupying place on the
floor. Gets down as the train was overcrowded and then comes back
in coach No.S6)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Overcrowded train PWs78, 86, 81 (almost all) ?
2. Wanted to buy a cup of tea PWs97, 113
for wife, but Karsevak did
not allow him and the tea
vendor who had come inside
was taken out of the coach
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by Karsevak and after
sometime, there was a
commotion.
3. Wife and daughter injured by
stones.
4. Heavy stone pelting resulting PW-94
into breaking of iron rods of
the window.
5. Heard the noise of breaking PW113
of bottles (See PW-114 who
says the glass window was
broken). Did not see the
actual breaking of the bottle
and perhaps refers to the
breaking of glass, but
perceives the sound as that
of breaking of bottle.
Actually the window as
stated by PW-114 had
broken. Thus, corroborates
PW-114.)
6. The Shawl of his wife was
burnt and saree also caught
fire. Shawl was removed and
doused by somebody who
came from S7. He also
doused her Saree and helped
her out of the train.
7. Injuries on the forehead of the
wife and treatment given
outside the train.
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8. Lost daughterinlaw.
9. Goes to Baroda with wife
10. Returns to Godhra on
the next day
11. Gives application for
searching his daughterinlaw.
12. Did not find his
daughterinlaw
Omissions
1. Admits the omission that because
of heavy stone pelting, iron rods of
window had broken and at that point
of time, his wife obstructed the
window by placing a bag, and
therefore, the stone did not hit her
and at that point of time, the hand of
his wife was protruding the window
and somebody tried to pull it, but his
wife pushed him and withdrew her
hand.
2. Admits the omission that the noise
generated by bottles was heard from
the backside in the coach.
3. Admits the omission that the
coach caught fire from the backside.
PW-94 Bachubhai Dhanjibhai Ladwani (Complainant)
(Seat Nos.60 or 62)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Gets down the train and again
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on movement of the train
comes back.
2. Miscreants were throwing PWs93, 119 (Seat No.24), 89
burning rags through
windows.
3. Helps other to come out of the
train through windows after
breaking rods.
4. Was helped by Nilkanth
Bhatia and Prahlad Patel in
coming out of the train.
Omissions / improvements
Admits the omission that the people
comprising the mob possessed sticks
and carboys.
PW-84 Hetalben Babubhai Patel (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Hurling of a burning rag with PWs-85, 91, 92, 93, 95, 107, 113
inflammable material caused a blast
and as such she advises others to
disembark the coach as the coach has
caught fire.
2. Deposes that she was blind sited PW-91, 79, 113
and experienced suffocation, burning
sensation on eyes and ears.
3. After coming out of the coach, PWs-79, 119
sees many persons on fire.
4. Savitaben who accompanied this
witness received burn injury – was
admitted in local hospital, Godhra.
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5. Deposes that Lalitaben and
Manguba were burnt alive
6. Deposes that Prahladbhai received
burn injuries and succumbed during
treatment
Omissions
Admits the omission in her statement
dated 08.05.2002 that the people
comprising the mob reached the coach
and broke open the windows.
PW-85 Rakeshbhai Kantibhai (Complainant)(Seat Nos.56 in S6)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. After train stopped for official Pws138, 228
halt, heard shouts from engine side
that stone pelting is being done,
was on the platform at that point of
time
2. Sees Muslims on the street
pelting stones on the train.
3. Rushes to the train and then goes
to the toilet falling towards platform
near Seat No.72 of S/6.
4. Hears the noise of bashing
windows by pipes.
5. Sees legs of many people
through toilet window
6. Fearing that the toilet window
may be broken by the assailants and
he will be beaten, decides to move
out of the toilet and in the
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meanwhile, glass of the said window
was broken.
7. People around him doused burning
rags. On seeing that burning rag was
doused, the people comprised in the
mob started shouting that “they have
doused it, bring more” and then
something was poured and burning
rag was again hurled on the train
which smoke and ignited fire in the
coach .
8. Sensing smell of petrol from the PW97
side of Seat No.72, he jumped out of
the train.
9. 50 to 100 people were pelting
stones from outside, and therefore,
there was a retaliation in defence by
stone pelting in order to scare away
the mob.
10. Nilkhantbhai received burn PW-87
injuries on the lower limbs
11. Sadashivbhai, Chiragbhai Patel,
Sonikaka and his son, parents of
Gayatriben Panchal, and two sisters
and other Karsevaks and passengers
died due to burn injuries.
12. Simple burn injuries received on
right eye.
13. Identifies Hasan Ahemad
Charkha as one of the assailants.
Omissions
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Admits the omission regarding
throwing of burning rags, its dousing,
its throwing again, etc.
PW-92 Dineshbhai Narsinhbhai Narsinhbhai
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. This witness does not refer to the PWs79, 202
second unofficial halt of the train but
it appears that her referring to the
occurrence which took place at “A”
Cabin after the second unofficial halt
of the train
2. Stone pelting from metal stones
heap
3. Liquid started flowing in.
4. Falls unconscious because of
suffocation
5. Treatment at Godhra Civil
Hospital and transferred to Civil
Hospital
6. Treatment continued for 2 to 3
days
7. Not willing to identify the
assailants due to lapse of time
Contradictions / omissions
1. Disputes he having stated in the
statement dated 08.05.2002 that
“owing to a quarrel with tea vendor,
stones were being pelted; close doors
and windows; therefore, passengers
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closed the doors and windows of the
coach”.
2. Disputes that during his statement
dated 08.03.2002, when asked about
seat number occupied by him in S/6,
he was unable to identify the same.
3. Admits he having not clearly
stated that owing to stone pelting, the
glasses of windows of the coach were
broken.
4. Admits the omission in his
statement that they were laced with
sphere with swords, axe and were
cutting the iron rods of the windows
and were pelting the metal pieces
from the heap of the metal.
5. Admits the omission in his first
statement that “thereafter, at the rear
side, burning rags were thrown and
liquid flow had come”.
PW-93 Shardaben (Seat No.72)(injured witness)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Movement of the train and stone PW128
pelting.
2. Received forehead injury by stone.
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3. Moves to the safer place between
two toilets.
4. Deposes that last door in the end PW98
of the coach was closed and was
being knocked with the exhortation
“kill Hindus chop them, Hindustan
murdabad Pakistan jindabad”.
5. Indiraben, Shantaben, Kamlaben
found safer place between two toilets
with him. She and Nandubhai
jumped out of the train.
6. Champaben Manubhai, Sheelaben
Mafatbhai, Diwaliben, Shantaben,
Manjulaben, Kamlaben were burnt
alive
Contradictions / omissions
1. Disputes she having made statement
that before recording of her statement,
the police had shown him the sketch of
S6 wherefrom she specified that she
was sitting on Seat No.72.
2. Disputes the omission in her
statement that to save themselves from
the stone pelting, they went to the
space between the toilet and the door
at the end of the coach was closed and
noise of the knocking on the side door
was being heard and they were saying,
“kill Hindus, etc…..”.
3. Disputes the omission in her
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statement that they had thrown the
liquid.
PW-95 Vandanaben R.Ramfersinh (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Prahaladbhai a resident of PW102
Mehsana was helped out of the train
in burning condition
2. Helps Savitaben and injured
victim to Godhra Civil Hospital and
then moves to Ahmedabad Civil
Hospital with Savitaben.
Contradictions / omissions
Admits she having not produced any
documentary evidence in support of
her say as regards occupancy of Seat
No.33 in S6 at the time of incident.
PW-98 Maheshbhai Cheljibhai (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Was sleeping and got up due to
shouts
2. Senses smell of petrol
3. Admitted to Godhra Civil Hospital
and then to Ahmedabad Civil Hospital
4. Not able to identify the assailants
Contradictions / omissions
1. Admits having not produced
documentary evidence justifying
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occupancy of specific seats, at the time
of recording of his statement, nor did he
specify the seat occupied by him.
2. Admits having clearly not stated in
his statement that “there were
exhortations for killing and stone
pelting was being done and he sensed
the smell of petrol”.
PW-99 Prakash Hiralal (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Closes door between S6 and S7 to
save his uncle from cold wind.
2. The fire started from the place
where they were sitting on latrine side
3. Opening of doors of the offside. PWs102, 103, 86, 107, 113
Almost all the witnesses
corroborate this fact.
4. Shifted to Godhra Civil Hospital.
5. Does not know the assailants
Contradictions/ omissions
No material contradiction
PW-102 Rampal Jigilal Gupta (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Uncle injured and suffocated
2. Shifted to Godhra Civil Hospital
Contradictions / omissions
No material contradiction
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PW-103 Somnath Sitaram Kahar (complainant) Reservation on Seat
Nos.66 to 71 in S7, but was asked to move to S6 from S7
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Train stopped near “A” Cabin
Contradictions / omissions
No material contradiction
5 Second Group comprises of following witnesses:
1. PW78, Seat Nos.45
2. PW 86, Seat Nos.41, 44/43,
3. PW87, was occupant of S/6 coach and he was occupying
seat No.47 and at the time of stone pelting climbed to seat
No.48
3. PW89, Seat Nos.26, 27, 28, 29
4. PW96, Seat Nos.33, 34, 35Unauthorized passenger in the second group were:
1. PW107, above Seat No.35,
2. PW120, Seat No.33
PW-78 Maheshbhai Jayantibhai Patel (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Hears that there is stone pelting
2. He was occupying space near Seat
No.45, however, to save himself
moves to the space between two
toilets.
3. While coming out of the door, gets
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injured by stone
4. Goes to Godhra Civil Hospital and
then to Ahmedabad Civil Hospital in
AmbulanceContradictions / omissions
No material contradictionPW-86 Hariprasad Maniram Joshi (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Learns that there would be stone PWs-96, 164
pelting and a suggestion was made
to close the doors and windows.
While the people were closing the
doors and windows, stone pelting
started from the platform side.
2. Chain of the train was pulled twice PW164, 138, 228, 127, 128,
and the train halted.
3. Windows near between 41 to 46
were accidentally left open and the
stones were coming from there
4. People gathered between Seat PWs79, 97, 113, 202
Nos.41 and 72 for safety. Hears the
suggestion from near Seat No.72
that the coach is on fire.
5. Goes to Seat Nos.1, 2 and 3 and
finds the door leading to the yard
open, gets down.
6. Wife died in the incident.
Contradictions / omissions /
improvements
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Admits having stated in the statement
dated 12.06.2002 that he had not seen
any person pelting stone or setting
ablaze the coach as the doors and
windows were closed and his wife had
shifted to the upper birth.
PW-87 Maheshbhai Jayantibhai Patel, was occupant of S/6 coach and
he was occupying seat No.47 and at the time of stone pelting climbed
to seat No.48 (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Sees smoke emerging from the
rear side of the coach.
2. Hears the people screaming that
the coach was set ablaze from the
backside
3. Continued attack – Sees burning
rags, stones and bulbs coming into
the coach
4. Joshikaka, Sadashivbhai, Nitaben
Panchal, Harsadbhai Panchal and his
two daughters were burnt alive.
5. Taken to Godhra Hospital and
then shifted to Ahmedabad.
6. Nilkhant also in the Civil Hospital
Ahmedabad
Contradictions / omissions /
improvements
Admits the omission in his statement
dated 28.02.2002 that “the windows
were broke open by pipes and stone
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pelting, thereafter smoke was
triggered at the rear side of the coach
from some burning substance, from
that side people were screaming and
saying that the coach has been set
ablaze at its rear side, people ran
helterskelter in the coach at this
point of time also burning rags, bulbs
and stones were being hurled, he and
Satishbhai climbed the seat to save
themselves of the stone pelting,
thereafter the coach starting burning
and he proceeded towards the exit,
then he came out of the coach with
the help of other workers, his
colleagues Joshi Kaka, Sadashivbhai,
Nitaben Panchal, Harshadbhai
Panchal and his two daughters could
not come out, and were burnt alive in
the coach, some people were pulled
out from the right hand side of the
coach by workers, Nilkanthbhai was
pulled out of the window, one other
lady was also pulled out of the
window, when Nilkanthbhai was
pulled out, his pants were burning.
PW-89 Premaben A. Mali (Seat Nos.25 to 29)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
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1. Heard that the coach is on fire
Contradictions / omissions
No material contradiction
PW-96 Satishkumar Ravindra Mishra (Seat Nos.33,34 and 37)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Gets down at the platform, hears Similar fact was stated by many of
that stone pelting is being the witnesses referred to herein
done. above and also; below
2. Both the windows were closed
3. Both the windows broke so moves
to the upperbirth
4. Fire started from the PWs-79, 119
backside of the coach
5. Wild fire reaching at his PW-79
back
6. Removes window bar and saves
daughter and himself and other
passengers
7. Burn injuries on both hands, wrist
and forehead
8. Taken to Godhra Hospital and his
employer Maheshbhai shifted him
to Vadodara Civil Hospital for a day
and then moves to private hospital
9. Loses wife
10. Admittedly hospitalized upto
17.03.2002
Contradictions / omissions
1. Admits the omission as regards
breaking of both windows due to
heavy stone pelting.
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2. Admits the omission as regards
stone coming through the windows
and starting of the fire from the rear.
3. Admits having not stated in his
statement that “my wife, daughter
and myself attempted to go ahead
for safety and in the meanwhile the
fire followed us”
4. Admits having pleaded ignorance
in the end of his statement dated
28.02.2002 about the incident and
application of bandage on both of his
hands.
PW-107 Parsottam Gordhan (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Alights on the platform
Some of the witnesses state that blanket (Rajai) was also used for
setting ablaze. PW107 says that blanket (Rajai) was placed by them on
the window to protect themselves which was snatched by the people of
the mob.
Contradictions / omissions
1. Disputes the omission that after
pouring inflammables and throwing
burning rags, the coach was set
ablaze.
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2. Disputes the omission regarding
breaking of windows on account of
stone pelting.
PW-120 Nitinbhai Chaturbhai Patel (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Gets down on the platform, finds PW97
commotion or unrest there.
Therefore, gets back into the train.
2. Deposes that Prahladbhai
received injury
3. Taken to Godhra Civil Hospital,
then Ahmedabad Civil Hospital and
discharged on 28.02.2002.
4. Though claims that he can
identify the accused, fails (it was
noticed by the Court that during the
evidence of this witness as many as
9 accused were in the waiting room
and were not present in the Court)
Contradictions / omissions
No material contradiction
6 Group1 comprises of following witnesses:
1. PW79, Seat Nos.17 to 21, but was given only Seat
No.24
2. PW81, Seat Nos.4, 5 and 6
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4. PW97, Seat Nos.11 and 13, but was occupying the space
near the seats
5. PW113, reservation of Seat Nos.8 and 72 in S7, occupies
Seat No.7 in Coach No.6
6. PW119, reservation of Seat Nos.18 to 21, but was given
Seat No.24 only
7. PW202, Seat No.9 in S6, but allowed to occupies Seat
No.3PW-79 Amarkumar J.Tiwari
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Was allotted seat Nos.17, 18, 19
& 21 in S/6, but about 75 to 80
karsevaks had boarded the coach
unauthorizedly and they were
occupying the said seats and he was
offered seat No.24 and was
occupying the said seat.
2. Blocking of the windows by bag to
prevent assault of the stones
3. Attempted snatching of the bag by PWs119
a bearded man
4. His father, sisterinlaw and
himself were injured by stones
5. Loses parents
6. Taken to Civil Hospital, Godhra
7. Unable to identify the accused
Omissions
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had caught fire and were running
helter and skelter.
PW-119 Punamkumari Sunilkumar Tiwari (Complainant)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Was companion of PW79
2. Deposes dousing of burning
rags by his fatherinlaw
3. SonAshish and brotherin
law Amarkumar were taken to
Godhra Hospital
4. Lost parents in law
5. Took treatment in Civil
Hospital
6. Identifies dead body of
parents in law on the next day
Contradictions / omissions
Disputes the omission that the fire
had started on the left side of their
place of sitting as also from the
opposite direction; which generated
heavy smoke in the coach.
PW81 Pujaben B.Kuswaha
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. After train started, a mob came PW164, 228
from platform side and started
pelting stones; closed windows.
After train started opened the
windows
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2. Moves to the latrine side for
safety. Hears bashing of weapons
on the coach
3. Inflammable smelling petrol was
thrown from outside
4. Vestibule in the passage between
two coaches [between S/5 and S/6]
was teared by her father to come
out of coach.
5. All came out of the train and
proceeded to one house, there
shelter was given to them by the
inmates, and then arrangement was
made for boarding the bus to
Bhavnagar.
Omissions
1. Admits the omission that after
movement of the train, a mob came
on the platform and started pelting
stone; she closed the doors and
windows and after the train moved
she opened the windows and while
the train moved about the kilometer,
many people comprised in the mob
were coming from the platform side,
they were having weapons and were
pelting stones.
2. Admits having stated in her
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statement that she had not seen
anyone breaking the coach or setting
it ablaze.
3. Not able to say whether she
stated in the police statement that
the noise of breaking windows
where they were sitting, from the
outside was being heard and since
the window broke, some substance
was thrown inside and therefore,
she, her mother and father moved
towards toilet.
PW-97 Hariprasad Manilal (complainant) (injured witnesses)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Hears commotion from other
passengers on the platform
2. Train moved and then slowed
down stone pelting
3. Explains that when the train
started, windows were opened by
passengers and found the mob of
200 to 250 persons with weapons,
etc.
4. Blocking of windows by
suitcase bag
5. Both of his hands received
burn injuries and his clothes were
also burnt.
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Contradictions / omissions /
improvements
1. Admits having stated that from
some distance of the coach on
platform no.1, she heard about
commotion or quarrel between
Karsevaks and members of
Bajrangdal, and refreshments store
keeper/s.
2. Admits the omission that after
starting of the train, people opened
the windows and saw mob
comprised of 200 to 250 people.
PW-113 Radheshyam Ramchandra (Complainant) (injured witness)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Allottee of Seat Nos.8 and 79 in
S7, but because of paucity of space
there, came to S6
2. Gives shelter to his wife and
grandson under Seat No.7, covered
them with military bedding, is a
military man (HavaldarArmy)
3. Goes under Seat No.7
4. Blocks the stones with bag
5. Hit by stones on nose as the bag
slipped
6. Goes to opposite seat
7. Jumps out of the train, a piece of
glass pierced into his leg
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Contradictions / omissions
Admits the omission that after the
train crossed the platform, windows
on opposite side were opened and in
the meanwhile, from the platform
side, many people comprised in mob
were shouting and charging, but
explains that the statement was
made by him that from the
platform side, a mob comprised of
Muslims people was shouting and
pelting stone from platform side.
PW-202 Govindsinh Ratansinh Panda (Complainant)(injured
witness)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Is Deputy Subedar and C.C. Head
Quarter, Udhampur
2. Most occupants – members of
Bajrangdal, came out of the train
and started chanting “Jay Shri
Ram” and then returned.
3. Tries to open the right side (off
side) door but feels as if it is locked
and tied by wires; forces it partly
open with help of others and from
the space so created comes out of
the coach.
4. Finds 4 or 5 people with
weapons i.e. the rods, pipe and
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knife after coming out, they
charged at him. Wanted to escape
but was cordoned, was hit by stone
and stick at his back.
5. Presuming him to be the
member of Bajrangdal, exhortation
was made to beat him
6. Introduced himself as Fauji with
warrant as his identification.
7. Was hit by iron rod on his head
by one person; consequently started
bleeding
8. Explains that initially, he was
attacked by knife on the waist but
his belt saved and then was hit by
iron rod on head and then one of
the persons stated that he should be
dropped near the road and offered
him water.
9. He was helped to reach the road
in the jeep; other passengers
desirous of similar help ran towards
the jeep and all of them boarded it.
Then the boy helped him to board
the bus.
10. Reported to Shahibaug NCC
head quarters and meets the
Director there and informs about
the incident in S6
11. He was sent to military hospital
Shahibaug for treatment; xray
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taken and stitches were applied on
his injury.
12. During treatment in the military
hospital, his statement was
recorded on 16.03.02
13. Identifies his saviour on
16.05.02
14. Fails to identify the assailants
Contradictions/omissions
1. Admits having not stated in any
of his statement that he felt that
offside doors wherefrom he
attempted to get down was locked
by wires.
2. Admits that after first chain
pulling, some of the members of
Bajrangdal who were left behind got
into the coach and closed the door
from inside and at their instance the
doors and windows were closed as
there had been a quarrel outside.
3. Admits the omission that his
saviors were Muslim people, who
helped other two passengers as well.
4. Admits the omission in his
statement dated 16.03.2002 that
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after movement of the train and
stoppage, some stones were pelted
and after half a kilometer when the
train stopped again, there was heavy
stone pelting from the left side of
the train; resulting into breaking of
the glasses of the windows and in
addition even the steel shutter
windows were broken because of
heavy stone pelting. Safety rods
were also broken. Clarifies and
explains that he stated in the
statement that there was heavy
stone pelting.
5. Admits having omitted in his
statement dated 16.03.2002 that
after sometime, the sensation of
burning of rubber was felt from the
end of the Godhra side of the coach
and the fire started very fast.
7 We may now appreciate the testimonies of the witnesses
groupwise. The presence of the authorized passengers in coach S/6
and other authorized passengers, who had come from other coaches
to S/6 cannot be doubted. As the following discussion would show
presence of even unauthorized occupants in coach S/6 has been
established by testimonies of numerous witnesses.
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8 According to the prosecution, the inception point of the fire
was at the end of coach S/6. Therefore, we may first appreciate the
testimonies of witnesses of Group3, who were the occupants at the end
of the coach.
8.1 We may first take up PW-114 Subhashchandra
Ramchandra Mishra occupying Seat Nos.69, 70 and 71). He was
travelling along with other family members in coach No.S6 on the
fateful day. He had a plan of staying at the place of his visit for about
two months and thus was carrying a huge luggage. Though had three
seats reserved, was offered only seat No.69, other two being occupied
unauthorizedly by Karsevaks. His testimony is tabulated as above. From
the above tabulated testimonies of numerous witnesses, it would be seen
that said numerous witnesses; in corroboration with the testimony of
PW114 deposed about date and time of arrival of Sabarmati Express, its
halt for 5 minutes, its movement and halt again; its movement again and
halt after coverage of distance of about 1 or 1½ kms., stone pelting,
suffocation on account of smoke and opening of door and disembarking
the coach by several witnesses, knocking of sliding door and the coach
being in flames. The testimony of PW114 would further indicate that
window of seat No.72 of coach S/6 lacked aluminum shutter and only
had a glass protection which was broken by the miscreants and to save
himself he moved to the toilet side along with his sister and mother for
safety. He then explains that hay of grass was placed on the broken
window and ignited by the miscreants, generating the smoke. Lack of
aluminum shutter in the window, placement of hay of grass by two boys
from outside after breaking of window and generation of the smoke and
then fire is accepted by this witness as an omission in his previous
statement dated 08.05.2002. The witness is sought to be criticized for
such improved version of his. The witness, however reiterates having
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stated that the window protection of glass was broken by stone pelting,
in his previous statement.
Omissions, contradictions or improvements, may occur for several
reasons e.g., a witness may forget to mention particular facts in a
particular way in his previous statement owing to trauma or stress or
tension or similar such circumstances; when confronted with assault of a
high magnitude like the one in the present case. Omitted and
contradicted facts or improved version or other incidental material facts
connected with omitted, contradicted or improved version; if supported
by other witnesses without such omissions, contradictions and
improvements, then such omissions, contradictions or improvements
would pale into insignificance. Therefore, the testimonies of witnesses
on mere ground of omission, contradiction or improvements by few
amongst many witnesses cannot be discarded. It is therefore required to
be seen as to whether his version or facts connected therewith gets
corroboration from other witnesses.
8.2 It is material to note that for those passengers comprised in
Group1 and Group2, who were facing direction opposite seat No.72
were at their backside and PW113 and PW82 [seat Nos.58, 59 and 61]
who shifted from coach S/7. Those seats were unauthorizedly occupied
by Karsevak and were not even offered to his pregnant daughterinlaw.
The family therefore disembarked coach S6 for alternative arrangement
which they could not do and ultimately returned to S6.], depose having
heard the sound of shattering of glass and generation of smoke from
backside. They had not seen the breaking of glass as they were facing
the direction opposite to s72. Shri Virpal Chhedilal PW82 and PW113
appears to have heard the sound generated by shattering of glass as the
sound generated by breaking of bottle, without noticing the object which
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had broken. Therefore, it would not be appropriate to mince their words
and it appears that what they meant was that a glass had broken. Thus,
the said witnesses corroborate the deposition of PW114 regarding
shattering of glass window and the contradiction or the omission on that
count are insignificant.
8.3 PW77 Rajendra Ramshankersing Rajput was the occupant
of seat Nos.62, 63 and 64 of S6. Therefore, other seats following seat
No.64 would obviously be the seats at his back. He deposes having seen
the smoke in the back side of the boggy and thus corroborates PW114
regarding generation of smoke.
8.4 PW86, the occupant of seats No.41 and 44 along with his
wife in S6 deposes having heard from seat No.72 side that the coach has
been set ablaze. He thereafter saw the smoke. No material contradiction
on this count are found in the evidence of this witness.
8.5 PW99 is the passenger having reservation of seats No.25 to
28 in coach No.S7. However, because of paucity of space in that coach,
he was asked to move ahead and thus he came to coach No.S6 and
occupied the space along with the luggage between the two toilets
situated in the end of S6 i.e. somewhere after seat No.72; the last seat.
According to his testimony, the fire had taken place from outside the
toilet. No material contradiction appears in his testimony.
8.6 Similarly, PW102 had the reservation of the seat in S7 but
was asked to come ahead and thus was occupying the space between the
two toilets situated in the end of S6. According to him also, the smoke
was generated at the place where they were sitting.
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8.7 PW96, the occupants of seats No.33, 34 and 35 also
deposes that the fire had taken place at his back side; although he
admits having omitted to mention the said fact in his statement under
Section 161 of Code of Criminal Procedure, but the fact remains that he
has been corroborated by other witnesses aforesaid on this aspect.
Similar is the version of PW119, 81 and 97.
9 Group2 = PWs78, 86, 89, 96, 107, 120
9.1 PW89 (reserved Seat Nos.26 to 29), PW96 (reserved Seat
Nos.33 to 35), PW120 (unauthorized occupying reserved Seat No.33 of
PW96), PW107 (unauthorized occupant sitting above Seat No.35), PW
86 (reserved Seat Nos.41, 43 and 44), PW78 (Seat No.45) are the
witnesses in the second group aforestated. Except PW120, they do not
claim the initiation of fire at the place where they were sitting.
9.2 PW120 makes a half hearted statement that the train was
set ablaze but does not specify as to whether the fire was initiated at the
place where he was sitting. He was confronted with the omission as
regards pouring inflammable, throwing of burning rags and setting
ablaze coach which he disputed but I.O. proved such existence of
omission in his statement under Section 161 of the Cr.P.C. It thus
appears that the fire was not initiated at the place where the passengers
in Group2 were traveling in the coach.
9.3 It can be noticed from the testimony of PWs79, 119 and
113 that the passengers in the train comprised in Group1 were
resisting the assault and were trying to save themselves.
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9.4 PW79 testifies having blocked the windows by bag to
prevent the stones being pelted from outside, hitting them, and
snatching of her bag, her being hit by stones and her treatment in the
Civil Hospital.
10 Group1 : PW81 Pujaben Bahadursinh Kushwah of Seat
Nos.4, 5 and 6 along with her family members as discussed in greater
detail in the later part of this judgment, would establish the assault and
smoke, fire even in the beginning.
10.1 Breaking of the windows due to stone pelting (PW114),
throwing of burning rags through window (PW94 and others), hearing
the noise of hitting the windows (PW85), making of the suggestion to
close the windows due to stone pelting and in the meanwhile, starting of
the stone pelting before windows could be closed (PW86), leaving of
the windows accidentally opened near Seat Nos.41 to 46 (PW86),
closing of two windows and its breaking (PW96), blocking of the
windows by a suitcase (PWs97, 113 and 79), arming of the assailants
with weapons (PWs150, 77 and 97), are the facts establishing assaults
by stones, fire, burning rags and weapons from outside the train.
10.2 Pelting of stones from outside and breaking of the windows
thereby is deposed to by PWs77, 82, 84, 87, 91, 92, 94, 95, 99, 100, ,
120, 79 and 113 who were the passengers traveling in the coach,
without contradictions and omissions.
10.3 PWs94, 84, 103 and 97 are the passengers who, without
omission or contradiction, attribute either the possession of weapons or
its use for breaking the windows and carrying assault to the accused.
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11 Thus, incidental and related facts viz. existence of windows with
glass shutters, breaking of windows and doors due to stone pelting,
screams of fire from the end of the coach, triggering of smoke at the end
of the coach, suffocation, breaking of glass windows, etc. are
corroborated by witnesses being PWs77, 86, 95, 97, 98, 99, 102, 103,
96, 107, 120, 97 and 113. Thus, the version of PW114 gets
sufficient corroboration and is required to be accepted as credit
worthy.
11.1 The evidence also indicates that attempt was made to
burn the coach from platform side and it was successfully set ablaze
somewhere from S72. When the ocular version is eloquent and clear,
other possibilities or logics based on scientific reasons and scientific
opinions which comprehends only theories rather than real fact
situation deposed to by eye witnesses, relied upon in defence pales
into insignificance. The ocular version, discussed above, rules out
accidental fire due to smoldering, short circuit or similar other
reasons. However, we may consider the arguments advanced in
defence; based upon scientific theories at appropriate place in this
judgment.
12 The fact that after the fire broke out, there was a
suffocation in the boggy, because of which many of the passengers came
to the offside either through the door or after tearing the vestibules
between S5 and S6, is deposed to by PWs77, 82, 84, 85, 86, 87, 91,
92, 95, 98, 99, 103, 79, 119, 81, 113, 202, 150, 152, 154, 155 and 172.
12.1 Relying upon the evidence of many witnesses who referred
to generation of smoke first and then fire, it was argued that causation
of fire cannot be attributed beyond reasonable doubt to petrol inasmuch
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as it is only smouldering fire that would generate the smoke first and the
fire in the next stage.
12.2 The phenomenon of `smoke first and then fire’ is better
explained by PW240, a Scientific Expert, which has been discussed in
greater detail in later part of this judgment.
12.3 It is misconceived to argue much less to be believed that
until the passenger got down to the offside, it was only smoldering,
smoke and fire could be noticed only after getting down of the
passengers inasmuch as, various witnesses discussed herein above as
also the following witnesses depose having seen the fire in the coach
itself.
12.4 PW96, who sustained the burn injuries on hands, wrist and
forehead, explains how the fire chased him in the coach itself.
12.5 PW82 also deposes hurling of burning rags, its dousing by
her father as discussed in greater detail hereinafter.
12.6 PW157 Savitaben Tribhovandas Sadhu deposes the hurling
of burning rags into the train; one of which fell on her, she sustained
burn injuries. She also deposes the throwing of petrol from the window.
Her right ear and hand were burnt. Because of stone pelting, the
windows had broken. Her version as to burn injuries is corroborated by
Dr.Parulben Rameshbhai Vaghela PW68 Exh544. The Medical
Certificate and OPD case papers respectively in that connection are
produced at Exh:545.
12.7 PW80 Gyanprakash Lalanprasad Chaurasia’s deposition
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that his parents sustained burn injuries from flames is corroborated by
PW70 through the Medical Certificate Exhs572 and 573 respectively.
Similarly, one of the injured passenger Prahaladbhai Jayantibhai Patel
was treated with 30% superfluous and or deep burns caused to him by
flames, in the civil hospital as deposed by PW70.
12.8 It is however true that many other passengers were
diagnosed for suffocation congestion and breathing problems because
of inhalation of the smoke. They were however fortunate enough to
rush out of the train, mostly on offside. It is also true that
smoldering before eruption of fire may generate smoke and such
smoke would cause suffocation and breathing related problems.
However, the ocular version by many of the witnesses that
inflammable was thrown or sprinkled into the train, hay of grass was
ignited on the window of s6, burning rags were thrown, fire was
initiated at or around Seat No.72, rules out the possibility of
accidental/smoldering fire.
12.9 The above detailed discussion would indicate the manner
and method and the nature of assault carried out by the miscreants
on Sabarmati Express more particularly, coach S/6, on fateful day.
To appreciate the manner of formation of the unlawful assembly and
whether or not subsequently the conspirators joined the unlawful
assembly for implementing their plans, it may be recapitulated that
two separate incidents triggered the trouble for the passengers in the
Sabarmati Express. The assailants at that point of time called for the
help in response to which hundreds or thousands of members of Muslim
community are deposed to have come to their rescue as also for taking a
revenge from the occupants of the train for they have being allegedly
molested the Muslim women or beaten the Muslim tea vendors. The
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said two incidents took place during the official halt of train. It then
started moving and it is borne out from the evidence on record that
some of the passengers were left behind and, therefore, chain was pulled
to stop the train from four coaches. At the same time, the evidence also
shows that the miscreants wanted to take a revenge and, therefore,
wanted to stop the train. Thus, the passengers and the miscreants both
had a motive to stop the train. However, in absence of clear evidence
implicating the miscreants in the act of pulling the chain at this juncture,
we may proceed on the assumption that the chain was pulled by the
passengers to facilitate the boarding of the train by other passengers left
on the platform. The evidence however indicates that when, after the
official halt, and after its halt because of first chain pulling, the train was
on the move, it halted again because of the chain pulling. This second
chain pulling cannot be attributed to the passengers inasmuch as they
were already under assault and thus could not have ventured to pull
the chain; rather they would have wished that the train moves
towards its onward journey, safely. The testimony of PW236
indicates that accused exhorting the other miscreants to stop the
train and testimonies of PW228 shows that accused had jumped on
to the hose pipe of coach and was trying to damage it. That repairing
of the hose pipe is admitted by PW236 in his testimony before the
trial court. Thus, the miscreants had a reason to stop the train and
eventually the train came to a halt at `A’ cabin. It appears that before
the train halted at `A’ cabin, it was under an assault mostly by stone
pelting and by use of certain weapons of offence. It was assaulted by
hurling fire rags, sprinkling or throwing of inflammable in addition to
stone pelting and assault of other nature only at `A’ cabin and the
said facts are noted in greater detail earlier from the testimonies of
passengers travelling in the train.
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13 The happenings on the platform or at `A’ cabin can better
be known from the nonpassengers available on the platform or near
`A’ cabin. To have a bird’s eye view of their testimonies, we may
tabularize their version, as under:
PW164 Shri Mohan Jagdishsingh Yadav (Constable) to be discarded.
The facts deposed by him are:
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. He was on petrolling duty with
his duty hours being 02:00 to 08:00
between 26.02.2002 and
27.02.2002.
2. His duty area extended from
CPWI Office to “A” Cabin.
3. RPF Constable Karansinh
accompanied him during patrolling.
4. Passengers got down from the
train chanting “Jay Shri Ram” “Jay
Shri Ram”
5. Some people from single fadiya
came to the platform side and
started pelting stone.
6. Those chanting “Jay Shri Ram”
were asked to occupy the train
7. Train started
8. Chain pulling was resorted to.
9. Train stopped again after moving
by two or three coaches
10. Stone pelting continued by
miscreants.
11. Police ran towards the coach PW128
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12. Train started moving again.
13. Stoppage of train at `A’ cabin Pw136, 127
14. Goes to guard lobby and
telephonically apprises his officials
about stone pelting and sought extra
force to counteract stone pelting
15. Comes out and sees thousands
of people charging towards “A”
Cabin and proceeds towards the
train; notices pelting stones by
miscreants.
16. Deposes that they were laced PW94
with weapons like pipes, sticks, etc.
17. Notices the smoke coming out
from train near “A” Cabin.
18. Goes to “A” Cabin and opens
fire because the mob had ignited the
train
19. Deposes about arrival of RPF
Officer and others police
20. Karansinh and himself fired one PW171
round each and Ambishkumar two
rounds
21. Apprehends some people from
the mob
22. Other officials also apprehended
many persons
23. On 08.03.2002, handed over the
empty cartridge to PW241 Shri K.C.
Bava in presence of
panchas.__________
24. Identifies the empty cartridge
25. His statement was recorded on
08.03.2002
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26. Exhibits inability to identify
those apprehended
Contradictions / omissions /
improvements / exaggerations, etc.
1. Having been posted by transfer in
Godhra about 10 months of the date
of incident, he admits that he is not
acquainted with the residents of
surroundings of the Railway Station
and their work or profession. He
further admits that he had not stated
names of the miscreants apprehended
by him in his statement dated
01.03.2002 [pertinently, examination
in chief the witness declares his
inability to identify the miscreants
apprehended by him or other police
personnel. In the examination in chief
itself he was confronted with his
statement dated 01.03.2002 which
contained the names of the miscreants
rounded up by him and other police
personnel; but disputes having stated
such names in the said statement.
2
3. Admits omission regarding rushing
of the mob from signal faliya; their
stone pelting on the train, his scaring
them away, asking the people
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chanting “Jay Shri Ram” to occupy the
train, moving of the train after
sometime, chain pulling and stoppage
of the train after its moving by two or
three coaches, stone pelting, their
rushing towards the coach; asking
people to occupy the coaches
immediately.
4. Admits the omission that he went to
the guard room calling additional
force, his coming out and seeing
people thousands in number moving
from singhal fadiya to”A” Cabin and
towards the train.
5. Explains that he stated in his
statement that at “A” Cabin again
chain pulling was done and train
stopped and from singhal fadiya
people thousands in number came,
etc.
This witness is found to have substantially improved his version
and having regard to the fact that there are number of omissions and
contradictions and exaggerations referred to herein above on material
points in his testimony, we would like to discard this witness.
PW171 Ambishkumar Siyaram Sake [Police]
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Duties hours on 27.02.2002
between 08:00 to 20:00 hours.
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2. Received telephone call from PW173
Karansinh Jhala PW200.
3. Comes to “A” Cabin along with
Constable Bhavarlal and Head
Constable Rajesh Sharma and meets
Karansinh (PW200) and Mohan
Yadav (PW164).
4. Goes to “A” Cabin from beneath
the train and finds 1000 to 1200
members of Muslim community
pelting stones on the train and
exhorting to kill and burn Hindus
5. Deposes about possession of
weapons by miscreants
6. Finds Jhala PW200 scaring the
mob with stick; but the mob refused
to disburse.
7. Jhala orders firing – fires two PW135
round in air.
8. Jhala and others apprehended
seven persons
9. He himself also helped to catch
those persons
10. Weapons from those persons who
were caught, were recovered
11. Apprehended people were PW173
cordoned near “A” Cabin
12. Jhala was writing the names of
the persons so apprehended.
Contradictions/omissions, etc.
1. Disputes the omission that the
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apprehended people had sticks, iron
rod, and axe with them.
2. Admits the omission that
apprehended persons were cordoned
by Jhala Saheb near “A” Cabin; Jhala
Saheb was noting the names of those
apprehended; thereafter he went to
the off side beneath train.
PW173 Karansinh Lalsinh Yadav
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Companion witness of PW164
2. The people in the mob had with
them carboys and were charging
towards the train.
3. Announcement from the mike
of nearby Masjid that chop, burn
and kill Hindus was being made.
4. Ambishkumar received the call
from him.
5. Returns to “A” Cabin from PW228
platform after telephonic talk, as
above.
6. Finds people with weapon. PW228
Breaking doors, windows and
sprinkling, inflammable on the
train and setting the coach ablaze.
7. Deposes that after the stone
pelting was done, he went to the
platform no.2 to guard driver lobby.
8. Further deposes that he saw the
people of the mob sprinkling
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inflammable on the coach.
09. Names Yusuf Sabir with axe,
Yahmahammad Chhakda with stick,
Ajgarali Kamrudin with axe and
Ahemad Abdulrahim with iron rod as
the persons identified in the mob.
10. Names Nasirkhan Sultankhan
with iron pipe, Sadiqkhan with rod,
Allahuddin Ansari with iron road, as
persons apprehended, along with
other persons apprehended by other
police personnel.
11. Deposes cordoning of the
apprehended persons at “A” Cabin.
12. Identifies following persons
without names:
(1) Husain Abdulsatar Durvarsh
(2) Nasirkhan Sultankhan Pathan
(3) Mehboob Yakub Mitha
(4) Siddiq Abdulla Madam
(5) Idrish Abdulla Imarji
(6) Kamal Badshah Mohammad
SharifContradictions / omissions /
improvements / exaggerations, etc.
1. Disputes the omission that the
exhorting from the announcement
from the Masjid to kill Hindus, burn
Hindus was being done and
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in guard drivers lobby.
2. Disputes the omission that the
Muslims people were breaking the
doors and windows by using sword,
axe and pipes.
3. Disputes the omission that the
apprehended people were cordoned
near “A” Cabin.
Visitors who had come to receive the karsevaks in the train. They
are the witnesses who were available at Platform No.1 before arrival of
the train, in order to receive the karsevaks travelling from Ayodhyaya in
the train.
PW150 Jayantibhai Umeddas Patel [Passenger in S/6]
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. He came out of a broken window
and saw a huge crowd pelting stones.
2. Felt suffocated and then shifted to
Godhra Civil Hospital.
3. Deposes weapons with the mob.
4. Shifted to Civil hospital,
Ahmedabad – Ward G1 in the
evening (indoor patient for 2 or 3
days)
5. Identifies Raiskhan Mitha, Yunus
Abdul Haq Samol, Saukat Faruk,
Rafik Patadiya, Mohd. Saeed Abdul
Salam Badam without naming them.
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Contradictions/omissions, etc.
1. Admits the omission that This fact is corroborated by
because of pelting of stones, doors other copassengers
and windows were broken and stones
were coming inside.
2. Admits the omission that the This fact is corroborated by
burning rags were thrown inside. other copassengers
3. Admits the omission that because of
the throwing of the burning rags the
coach caught fire and smoke was
emitting.
4. Admits the omission in the
statement dated 07.03.2002 that “we
all karsevaks were frightened and did
not open the doors and windows but
we all got suffocated because of the
smoke inside”.
5. He states that there was a
small mob on the offside. He was
occupying Seat No.40.
This is an injured witness and barring few omissions /
improvements, he is credit worthy as several facts stated by him are
corroborated by other independent witnesses.
PW154 Chandrashanker Nathuram Sonaiya
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Being the resident of Godhra, he
knows Ahmed Abdul Karim, Asif @
Babu and Harun @ Husain with
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weapons like rod, pipe etc.
Following facts deposed by this witness gets corroboration from
several witnesses as discussed herein above:
Firing, stick bashing, apprehension of some persons by police,
their cordoning at “A” cabin.
Gathering of huge number of Muslims to harm other karsevaks in
the train and to get the apprehended persons released.
Bashing of batons for disbursing the mob and apprehension of
some other persons from the second mob.
Identifies two persons Ahmed Abdul Rahim Hathibhai and Idris
Yusuf Mafat but does not identify Asif @ Babu who was present
amongst the accused in the court.
No material contradiction, omission, improvement and
exaggerations are found in his testimony.
PW155 Manojbhai Hiralal Adwani
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Identifies Anwar Husain Ahmed
and Mohd. Salman with deadly
weapons as the persons present in
the mob.
Contradictions / omissions /
improvements / exaggerations, etc.
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1. He identifies two persons Mohd.
Abdul Salam (the defence stated
that the witness named initially as
Ahmed Abdul Salam during
identification).
2. On verification the accused stated
his name as Mohd. Abdul Salam
Getali.
3. The witness does not know the
name of other accused who was
identified by him. On verification by
the court, the said person was
introduced himself as Nasirkhan
Sultankhan Pathan.
4.The witness also referred to one
Anwar Husain Ahmed who was
present in the court as accused but
did not identify him.
5. In the crossexamination he
explains that the inflammable was
being sprinkled from the heap of
metal stones situated near by the
train after approaching the train
from a very close distance.
PW159 Rajesh Vithhalbhai Darji
Particulars of Crucial facts Prosecution Witnesses who
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corroborates the crucial facts
1. He deposes that RPI people came
and then the train moved.
2. Noticed five to six persons with PW127
carboys sprinkling inflammatory
substance on the train; followed by
burning rags which triggered fire;
and on arrival of RPF personnel and
police, lathi charge and firing was
resorted to; which made the mob to
disburse.
3. Names the following persons
from the mob viz. Habib Bin Yamin
Behra, Saukat Dagal, Harun Dav,
Siraj Abdul Jamsa, Rafik Mohd.
Kalandar, Mehmood Ahmed Hasan
(knife). Rafik, Habib, Siraj (pelting
stones and exhortation.
4. Identifies three persons in the
court, but not able to name them.
On verification by court, they
introduced themselves respectively
as Siddiq Abdul Baqar, Habib Bin
Yamin Behra, Mohd. Kutub Mohd.
Ansari. From amongst other persons
seen by him in the mob being Habib
Bin Yamin Behra, Saukat Dagal,
Harun Dav, Siraj Jamsa, Rafik
Kalandar and Mehboob Hasan,
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Habib Bin Yamin Behra was present
in the court and others being
MehboobAhmed Hasan (the correct
name is Mehboob Ahmed Yusuf)
was also present. Rafik Abdul Majid
Kalandar was also present but
Saukat Dagal was not present,
however, Saukat Mohd. Kalandar
(accused No.34 in Sessions Case
No.69 of 2009) was present in the
court. These persons though
named in the testimony were not
identified by him.
Contradictions / omissions /
improvements / exaggerations, etc.
1. Admits the omission that they This fact is corroborated by other
had assailants were breaking the witnesses
doors and windows by using sticks and
iron pipes.
2. Admits the omission that they had This fact is corroborated by other
thrown the burning rags. witnesses
3. Admits the omission that Rafiq
Kalandar, Habib Behra and Siraj Jamsa
were pelting stones and making
exhortation.
4. Admits having mentioned in his
police statement that the people of the
mob were having carboys filled with
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kerosene.
PW172 Nitinkumar @ Kakulkumar Hariprasad Pathak
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Names Amin Husain Hathila,
Siddiq Ibrahim Hathila, Usmangani
Kofiwala, Ibrahim Dantiya, Kalu
Chunga as the assailants seen by
him. He attributes the assailants
with carboys filled with inflammable
and setting the train ablaze by them.
2. Identifies two persons namely
Ibrahim Adam and Kofiwala, who
on verification by court respectively
introduced themselves as Ibrahim
Adam Dantiya and Ismail Gani
Ahmed Kofiwala.
3. Amin Husain Hathila and Siddiq
Ibrahim Hathila and Kalu were
present in the court but could not be
identified by the witness.
4. Identification of Usmangani
Kofiwala was done through this
witness on 31.08.2004 by the
Mamlatdar and that of Ibrahim
Dantiya on 01.09.2009.
Pertinently, his one of the statements was recorded
immediately on the next day of the incident i.e. 28.02.2002 and no
contradiction as regards possession of carboys with inflammable
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substance is found in his testimony and even on other points no material
contradictions, omissions, improvements and exaggerations are found in
this witness.
14 Though the trial court has not believed the evidence of local
VHP workers witnessing the crime in para 89 of the judgment of the trial
court by assigning reasons, but the presence or absence of the eye
witnesses can be inferred on various facts and where the witnesses
whose credibility is doubted by the defence are shown to have made
such statements in the testimony as can only be known to the eye
witnesses, they cannot be discredited for the reasons noted by the trial
Court. While we are inclined to discard the testimonies of PW151, 167,
and 208 for improvement and exaggeration by them on vital and
material facts, as also that of PW 203 who is hostile to the prosecution;
testimony of PW 154, 155, 159 and 172 is found to be creditworthy on
certain material points as discussed hereinbelow.
14.1 PW154 Chandrashekhar Nathuram Sonaiya is not found to
have made any serious omission or contradiction or improvement in his
statement under Section 161 and his testimony as regards firing by the
railway police firing stick winging and apprehension of some of the
persons and they are being cordoned at A cabin and arrival of a second
Muslim mob to harm other Karsevaks in the train as also to get
apprehended persons released and resorting of the police personnel lathi
charge firing for the purpose of dispersement of the mob and
apprehension of some accused from the said second mob gets
corroboration from various witnesses and he has successfully identified
Ahmed Abdul Rahim Hathibhai and Idrish Yusuf Mafat in the Court.
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14.2 PW155 Manoj Hiralal Advani also gets corroboration on
material points from several witnesses discussed herein above. That
apart in the crossexamination, he has explained that the inflammable
was being sprinkled from the heap of the metal stone situated very near
to the train. Such a statement can come from an eyewitness who is
alive to the minute details in the surroundings of the place of incident to
which he may spontaneously refer to during his testimony to justify his
evidence. By a concocted witness the focus would normally be on
exaggeration and improvements on the material incriminating
circumstances so as to implicate the accused to a severest possible
extent. Pertinently, his statement gets corroboration about the existence
of heap of metal stones from none other than independent and injured
or other passengers who are victims of the incident in question; being
P.W.175, 118, 91 and 127.
14.3 No serious and material contradictions, exaggerations or
omissions are noticed in the testimony of P.W.159 and he has been
corroborated on material particulars by several witnesses as discussed
above. The only improvement which can hardly stated to be an
improvement as regards his reference to the carboy containing
“kerosene” in his statement under Section 161 of Cr.P.C. Therefore his
evidence cannot be justifiably discarded on the ground suggested by the
trial court.
14.4 P.W.172 is also very crucial witness whose statement under
Section 161 was recorded on the very next day i.e. on 28.2.2002 leaving
virtually no room for exaggeration or improvement in his story. Apart
from corroborating other witnesses on various facts, the witness
attributes amongst other weapons, the plastic carboys filled with
inflammable, to the accused. Although other statements of witnesses
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were also recorded, the defence has not been able to controvert the
factum of possession of carboys in the hands of accused, during the
crossexamination of this witness. Having regard to the fact that a
crucial fact abovereferred is borne out from the testimony of this
witness as also having regard to the fact that on all material facts his
testimony is corroborated by other witnesses abovereferred, it would
be unjustified to discard his testimony for the reasons recorded by
the trial court.
PART XIIB
KNOCKING OF SLIDING DOOR, ASSAULT MADE BY VIOLENT MOB
ON THE TRAIN AND SETTING THE COACHES ON FIRE AND
EXISTENCE OF METAL STONES
1 Knocking of sliding door situated at the end of Coach S6 is
deposed to by PW114, however, with the omission in his statement
dated 08.05.2002 recorded under Section 161 of the Cr.P.C. Similarly,
PW93 Shardaben Manubhai Patel also deposes the knocking of the
sliding door and exhortation by the people behind it, that Hindus should
be killed. She however disputes the omission as regards knocking of the
sliding door, etc. in her statement recorded under Section 161 of the
Cr.P.C., however, such omission is proved through Mr. Noel Parmar,
Investigating Officer PW244 .
2 PW88 Shantibhai Shankarbhai Patel was the occupant of
Seat No.70 and according to his version to save himself, he moved
towards the toilet side and therefrom he heard the knocks from the
middle portion where he was standing. No contradictions and omissions
are found in his testimony. Similar deposition is given by PWs99 and
102 without any contradiction, omission and improvement. Thus, while
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these witnesses proved only knocking of the sliding door at the end of S
6 and exhortation, they do not depose breaking of sliding door and entry
of accused with petrol carboys therefrom. In fact, none of the witnesses
referred to in this judgment so far depose to the entry of accused with
carboys filled with petrol into S/6 after breaking of the sliding door, and
some of the witnesses abovereferred deposed having sensed kerosene
smell at both ends of the Coach S6; none of them, however, deposed
having seen any of the accused pouring inflammable after obtaining
entry through the broken sliding door or through teared vestibules, into
the Coach S6.
3 The question therefore would be whether the accused made
good their entry into coach No.6 with carboys filled with inflammable.
Before appreciating this aspect, it is required to be noted that the train
was jampacked with double the capacity than its official capacity; with
luggage of the passengers in huge quantity, restricting the free
movement of the passengers. The passengers, who could successfully
disembark coach S/6 have not been able to depose about the entry of
the accused into the said coach because it was impossible for the accused
to obtain a free entry into the jampacked coach. It is borne on record
that over 150 passengers with their luggage were occupying coach S/6
and eventually 57 or 58 passengers were burnt alive. If the whole
scenario after the assault on the train is recalled, it becomes clear that
while over 150 passengers were in the coach, the fire had already started
and it continued to aggravate. The fortunate few who were either near
to the doors at two ends of the coach on the offside or were near to the
windows falling on the offside could come out of the train with minor or
serious burn injuries. While such passengers were in the process of
coming out of the train, the situation was aggravating continuously
suffocating others, who were not that fortunate. Obviously, the
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suffocation made them motionless and defenseless. The medical
evidence would show that many of the passengers developed serious
pulmonary complications on account of suffocation. Thus, it appears that
eventually 59 passengers were rendered motionless and defenseless and
by that time almost 2/3rd of the coach was vacated by other passengers
who came out of the coach. This appears to have made the coach
vulnerable to easy entry of the accused by cutting the vestibule situated
between coach S/6 and S/7 and as indicated in later part of this
judgment, PW236, PW237 and confessional statement of accused Jabir
Binyamin Behra explain how the accused could obtain the entry into the
coach and carried out further assault on the trapped passengers being 59
in number.
4 PW175 Gayatriben H. Panchal refers to the metal heap in
cross in Paragraph19. It was so close to the train, on onside that her
companion pooja could jump and land on to it from the window of
burning coach s6 as deposed by PW175. Similar reference to metal
heap is made by PWs91, 155, however, omissions are proved. Existence
of the metal heap very close to S6 and pelting of the metal stones
therefrom is deposed to also by PWs 92 and 131 with the omission in
their statement under Section 162 of the Cr.P.C. as also PWs155, 118,
175, 91 and 127 without any omission. It is thus clear that metal heap
situated at a very close distance from S6 was being used by the
assailants as a platform for pelting the stones and hurling of burning
rags on Coach S6. However, with an enthusiasm to prove that the petrol
if thrown from the heap would not reach Coach S6, an experiment was
done after about 50 days of the incident in question by taking into
consideration the unreal situation of the metal heap at a distance of 14
ft. from S6. This experiment was made to show that to pour and the
sprinkle the petrol into the coach, it was necessary for the accused to
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enter into the coach after cutting open the vestibules and sliding doors
separating S6 and S7. With the said experiment, testimony of PW236
Ajaykumar Kanubhai Bariya and other similar witnesses is sought to be
justified.
5 Ghanprakash Lalanprasad Chorasia, PW80. This witness
was travellling in Sabarmati Express by reserving 3 seats and boarded
from Kanpur for Ahmedabad with his father, mother and nephew having
seat Nos. 8 and 72. According to this witness one of the reserved seat
was occupied by karsevaks and there were about 150 to 200 passengers
in the coach S6. Paras 3 and 4 revel the incident of chain pulling of the
train at 2 different places after departure from Godhra Railway Station.
That father and mother of this witness sustained 90% and 40% burn
injuries respectively and were admitted to Godhra Civil Hospital, while
nephew died therein. Paras 3 and 4 read as under:
“3 Our train arrived at Godhra Railway Station at about
half past seven o’clock on 27/2/2002. The train halted for
about five minutes at Godhra Railway Station. At that time
passengers and karsevaks sitting in our coach got down to
drink water tea etc. After about five minutes, the train
departed from the railway station. It stopped immediately after
the departure. Thereafter, it started from there again. After
departing in this manner second time, the train stopped again
after about five minutes. When the train started in this manner
second time, the windows were open and many people came
running from the village side and after reaching near the train,
stone pelting was started. Stone pelting was done for a long
time and thereafter, petrol and chemical was thrown from the
back part of the place where I was sitting and fire was ignited
and there was smoke. Many persons of the coach died due to
fire. My nephew also died therein.
4 My father sustained 90 percent burns and my mother
sustained 40 percent burns at that time. After reaching Godhra
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Ahmedabad over phone. Therefore, he arrived at Godhra. My
parents and I received treatment at Godhra Civil Hospital. My
mama (mother’s brother) and masa (husband of mother’s
sister) also reached Godhra. After those people arrived, search
for Rishabh was carried out, but he was not found. We came to
Ahmedabad Civil Hospital in an ambulance from Godhra Civil
Hospital on that same day at four – five o’clock in the evening.
Three of us received treatment in Ahmedabad Civil Hospital. I
am shown Mark619/1 and the name J. D. Chorasia written
therein at seat no.8 is the name of my mother. The dead body
of Rishabh was identified by DNA test. Police recorded my
three statements after inquiring to me”.
In crossexamination, the above witness described situation of seat
Nos.8 and 72, both were at different ends of the coach and there were
doors at both the ends of the coach for movement and that there were
toilets facing each other adjacent to those doors. In para 7 of cross
examination, the above witnesses stated as under:
“7 I saw police when we were in Godhra Civil Hospital. I
did not give my address or any statement in connection with
the incident to Godhra Police at that time. It is true that police
was also present at Ahmedabad Civil Hospital and I did not
give any information to the police regarding the incident over
there also. It is true that I continued my studies even after the
incident. I know to read, write and speak Gujarati. I was in
Ahmedabad Civil Hospital on 4/3/2002. I do not remember as
to whether the police visited me on that day. My first
statement was recorded in Ahmedabad Civil Hospital. I do not
remember as to on which date it was recorded. It is not true
that I was discharged from Ahmedabad Civil Hospital on
2/3/2002. I do not remember as to at what time my statement
was recorded in Ahmedabad Civil Hospital. At the time of that
statement, I dictated whatever I knew regarding whatever was
asked to me. It is true that I ascertained after reading that
statement that it was written correctly. It is true that I have
dictated in police statement dated 4/3/2002 that “after the
train departed, it suddenly halted after about five minutes
and suddenly stones started to arrive from the left side of
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immediately started to close the glass and iron windows
and they also started to close the doors of the coach.
Despite that stone pelting continued on the coach. Some
stones out of the same fell into the coach and the glasses of
the windows were also broken. Before the iron windows
could be closed, some burning article was thrown by
breaking the glass window. After it fell into the coach,
suddenly there was excessive black colour smoke in the
coach. On seeing the same, first I told my mother that there is
smoke, therefore, my mother told my father to get out of the
coach immediately with my nephew Rushabh. At this time, all
four of us were sitting on the upper seat. As there was smoke
below and as the smoke came up, the visibility decreased.
Thereafter, my father immediately got down from the upper
seat with my nephew and he told my mother also to get
down and he stated that as there is fire in the coach, come
out of the coach immediately. Therefore, my mother and I
immediately got down from the seat. At that time my father
was shouting that there is fire, there is fire, get down
immediately. Therefore, my mother and I left all the luggage
in the coach and got down towards the side of the coach
where my father and others had got the door opened.” It is
true that after the incident I was reading the news published in
the newspapers regarding the incident. It is true that news and
visuals of the incident were also being telecast on the TV. It is
true that when my statement was recorded in the year 2005,
the police made me aware regarding the incident and my
earlier statement”.
However, this witness is unable to state clearly about why and
how the train stopped twice after departure from Railway station. In
para 9 of the crossexamination, the witness reveals that he had no
knowledge whether the stone pelting started at the time itself when the
train departed from the platform. Para 9 of the crossexamination is
reproduced herein below for appreciating trustworthiness of the
statement made by him before the police. Para 9 reads as under:
“9 I do not know as to whether the stone pelting started
at the time itself when the train departed from the platform.
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It is not true that due to the stone pelting, the passengers in
the train closed all the doors and windows of the coach. It is
not true that I am falsely stating the fact, which I have
stated in examinationinchief, that a mob belonging to
Muslim caste came and threw petrol and chemicals in the
coach. It is true that there were horizontal iron bars on the
outer side in the windows of this train and thereafter, there
was iron window at the inside part and at last there was
glass window inside. It is true that if one wants to pour
petrol or chemical in the coach, the window made of metal
sheet has to be broken. The witness states that the stones
were pelted with the same intention. It is true that I have not
stated in any statement before the police or in examinationin
chief that the iron window were broken by pelting stones. It is
not true that in stone pelting, the glass window breaks only
after the iron window is broken. The witness states that the
glass windows were shut first. It is not true that I have dictated
in my first police statement that “some burning article was
thrown.” My mother or I did not sustain any injury during
stone pelting. My father sustained injury. He sustained injury
as he was hit with stone in the coach. I did not dictate in my
police statement that my father sustained injury with stone”.
6 Pujaben Bahadursinh Kushvah, PW81. This witness is the
passenger who had reserved seat Nos.4, 5 and 6 in S6 coach of
Sabarmati express train which was to leave from Kanpur on 25.02.2002
and it was running late since beginning and that though seats were
reserved some passengers were occupying seat Nos.4, 5 and 6 and in
para 2 of examination in chief, it is stated as under:
“2 Thereafter when the said train started, a mob came from
platform side and as stones were pelted on the train, we closed
the windows. After the train started, we opened the windows
and saw and while the train went ahead for about one
kilometer, a mob consisting many people was coming from
platform side. The people of the said mob were armed with
weapons and they were pelting stones at the train, therefore,
we closed the window. Despite of closing windows, more stone
pelting continued. As this stone pelting etc. was done, the
metal sheet windows etc. got broken. As the window broke, we
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side, sound of beating with weapons was heard, therefore, we
stood over there near the door. Thereafter, as we saw liquid
smelling like petrol was thrown from outside through the
window of toilet. Thereafter, as there was smoke in the coach
we felt suffocated and faced breathing problem. As stone
pelting was done in the manner I stated earlier, my parents
and I – three of us came near toilet. My mother and I started
crying, therefore, my father tore open the raxin like layer of
the passage between the two coaches and my father jumped
down. Thereafter, my mother and I jumped down on the other
side of platform. Thereafter, we started running and when we
looked back, the coach was on fire. Thereafter, as we ran
towards a house located there, some women who were in that
house called us inside. Thereafter, they gave us water to drink.
Thereafter, a male person came to drop us on the road and he
made us to sit in a bus going to Bhavnagar. All our luggage
was left in the said coaches and we all reached our house in
Bhavnagar. Police recorded my statement in this regard. I am
shown Mark 6191. I state after seeing this reservation chart
that the seat no.4 of the said S6 coach was reserved in my
father name and seat no.5 was reserved in my mother name
and seat no.6 was reserved in my name”.
In paras 6, 7 and 8 of her crossexamination, she has stated
as under:
“6 It is true that when we got into the coach from Kanpur,
passengers and karsevaks were sitting inside the coach in the
middle passage near the door and in the part of passage having
toilet and bathroom and we had difficulty in moving in. It is
true that karsevaks were also sleeping on our seats. Two
persons each were sleeping on one seat having their heads
facing each other. It is true that when we woke them up and
asked to vacate our reserved seat, they stated that “we are
karsevaks.” It is true that they had also stated that “this entire
train belongs to us.” It is true that they also stated that “seat
wherever you want.”
7 I do not know as to whether there was any quarrel
between the karsevaks and the hawkers of the station when
this train was standing on the platform at Godhra Railway
Station. I do not know that that quarrel took place near
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canteen on the platform. It is true that when the train was on
the platform itself, I had heard the noise of stone pelting on
the train at that time. It is true that due to this stone pelting,
those passengers who had got down on the platform,
immediately got into the coaches. It is true that the passengers
of the coach were frightened due to this reason. It is true that
the karsevaks etc., who got into the coach, asked to close the
doors and windows of the coach. The witness states that we
ourselves closed the doors and windows.
8 It is true that the doors of the coaches of the train were
such that can be closed from inside only. It is true that in the
windows and doors of the coach have horizontal iron bars at
the outer side first, then there is an iron window on the inside
part and at the end there is glass window inside. I do not know
that when the karsevaks got into the coaches from the
platform, they brought with them stones and pieces of bricks. I
do not know that the stones and pieces of bricks brought by
them, were with them in the coach till we jumped off the
coach”.
From the above crossexamination, it appears that even reserved
seats were occupied by karsevaks and unauthorised passengers, but she
had no idea about if any quarrel took place between karsevaks and
hawkers at Godhra Railway Station.
In further crossexamination, she admits to have not stated certain
specific words in her police statement dated 11.07.2002 and about a
mob coming from platform side and pelting stones and after the train
started windows are opened to see that a mob consisting many people
was coming from platform side. In para 12, the above witness stated as
under:
“12 It is true that the coach caught fire after we went little
far after getting down from the coach. It is not true that the
house in which we drank water and the person who came to
drop us at the crossroads belonged to Muslim community. It is
not true that as I have been tutored today, I am stating thatPage 685 of 988
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the said house and the person did not belong to Muslim
community. It is not true that the area in which we drank
water belonged to Muslim community. It is true that when
there was smoke in the coach, foul smell started. The
witness states that the smell was like petrol. It is true that
the foul smell coming due to smoke was of different types. It
is true that due to smoke there was difficulty in breathing. It
is not true that there was no smell of petrol at the time of
smoke. My parents and I were taken to Godhra Police Station
to record our statement. The said police station was located in
Godhra City. I did not see as to whether stones were pelted
against one another on the platform on that day. I do not know
as to whether there was quarrel on that day at the canteen on
the platform just opposite to our coach. It is true that I have
dictated in my police statement that “I have not seen anyone
breaking or burning the coach.”
In para 13 of her crossexamination, she has stated that there was
smoke in the in the coach as some substance was thrown and there was
difficulty in breathing due to the smoke and they got frightened and
according to her say the substance which was thrown was like petrol and
it was smelling like that.
7 Virpal Chhedilal Pal, PW82, is a retired Sargent of the
Indian Air Force and his sons were to settle down in Vapi in the State of
Gujarat. He was travelling with his family in the train. The witness, his
wife and daughter in law all three boarded at Kanpur on 25.02.2002 and
that they had reserved for seat Nos.58, 59 and 61 in coach S6 of
Sabarmati Express. It was crowded and karsevaks were occupying
reserved seats and request was made by him to vacate the seat for his
daughter in law who was pregnant, but none of the karsevak vacated the
reserved seats and all three sat down on the floor. In view of difficulty
in travelling, it was decided to get down from the train and to travel in
other train, but at Jhansi Railway Station upon checking it was found
that no other train was available and, therefore, they requested the
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Ticket Examiner to make some arrangement for their sitting in some
other coach, but they were told that all the coaches were equally
crowded and, therefore, they went back to coach S6 at Jhansi Railway
Station. The above witness in his examination in chief stated about the
behaviour of karsevaks and requesting them not to buy tea from Muslim
hawkers of Godhra Railway Station and after departure, the train
stopped about 10 meters ahead and thereafter it started and again
stopped after going to 5 to 10 meters. That stone pelting started after
2 to 4 minutes from left side, which hit his wife and daughter in law.
This witness also heard sound of bottles on the back part and smoke
started coming and he decided to go to left side with bag to save
himself and found a person wearing kurta and pyjama having
spectacles signaling the mob. He tried to search his wife and
daughter in law by shouting in the commotion which took place and
after some time he found shawl and sari of his wife caught fire and a
person who came out of S7 coach threw away the shawl of his wife
and doused the fire and pushed his wife from door. He contained to
search for his daughter in law, but he could not trace her out.
Unfortunately, even after inquiry and search on the next date her
dead body was not found.
In crossexamination, this witness confirms about unruly
behaviour of karsevaks and other unauthorised passengers, who not only
misbehaved with the witness, but also with Ticket Examiner. Further,
this witness had no knowledge why train had stopped twice and had no
information exactly about stone pelting. Again in para 10 this witness
described that he was asked not to buy tea from Muslim vendors and
further shouting of slogans by karsevaks in para 11 of his cross
examination. That coach S6 was so overcrowded that the persons sitting
inside were facing difficulty even to reach toilet. In para 12 the above
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witness stated that “It is true that before the smoke started in our
coach there was a noise and thereafter smoke arose and spread in the
entire coach. It is true that the smoke seemed poisonous and it
seemed that the smoke arose from some chemical”. In paras 15 and
16 of crossexamination, this witness stated as under:
“15 It is true that after the train stopped for the second
time at the place of incident, stone pelting began and due to
that reason the passengers etc. of our coach started running
here and there to save themselves. At that time the right side
door of this coach was four to five feet far from the place
where we were sitting in the coach. The said door was open at
that time. I do not know as to whether the passengers of the
train were trying to get out from the open door at that time. I
got out from this coach through this open door. I do not know
as to where my wife and my daughterinlaw were when I was
getting out. Within two to three minutes after I came out of
the coach, my wife was brought out of the coach by pushing
her. She was also brought out from the door itself. After
getting down from the coach, my wife and me went 20 to 25
feet far and sat in an open place. It is true that when my wife
was brought out of this coach by pushing her, the person, who
pushed her, was in S/6 itself. I did not meet this person prior
to that or after he pushed.
16 It is true that after I came out of this coach, the entire
coach got filled with smoke. The condition was such due to
fire that it cannot be seen as to who was at which place in
the coach. When the police recorded my statement, the fact of
the written application submitted by me to the police station
was not read over to me before recording my statement at that
time. At that time a military person was also there in out
coach. I had sat down on his seat for some time. After I came
out from the coach I had seen that military person at the place
of incident”.
However, in para 17 of the crossexamination, this witness
denies to have stated in his earlier statement that sound of bottles was
heard in the coach at back part and further not dictated in his statement
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that the coach was set ablaze from rear side. He admits that the person
had pushed his wife to save her from fire and had itching in his eyes
due to smoke. Again, presence of a person wearing kurta, pyjama and
spectacles is not denied.
8 Radheshyam Ramshankar Mishra, PW113, who is Ex
Army man has similar version to that of PW82. He got seat Nos.8 and
72 reserved in S7 coach in Sabarmati Express, which is over crowded.
Therefore, this witness with his wife and grandson went to coach S6. In
para 8 of the crossexamination, this witness stated as under:
“8 When the train stopped at Godhra Railway Station,
there was uproar on the platform as I stated in the
examinationinchief, but I do not know what was the cause of
it. It is true that after the train had started from the platform,
when it stopped after covering some distance, stonepelting
started and hence, all people closed windows and doors. It is
true that after there was the sound of blast of bottle in the
coach and after there was smoke, we came out in offside.
Some had got out through windows and some from doors, in
offside. It is true that I have not dictated in my statement
before the police that “after the train had passed from the
platform, the windows opposite to us were opened, in the
meantime, a mob of many people was coming from the side of
the platform on the road.” The witness states that I have
dictated in the statement that “a mob of Muslim people had
come from the side of platform hurling stones.” It is not
true that only the glasses of windows broke down due to
stonepelting and that windows did not break. It is true that
I have dictated in my statement before the police that “they
started breaking the windows of our coach and the glasses
of windows broke down on account of stonepelting.” It is
not true that I have not clearly dictated in my statement
before the police that the sound of explosion was due to
blast of bottle and as it caused smoke, I was facing difficulty
in breathing. It is true that I have not dictated clearly in my
statement before the police that “taking the stone which
had fallen in the coach due to stonepelting, I had tried to
break the rod of the window. At that time, as someone triedPage 689 of 988
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to break the rod from outside also, it broke down.” The
witness states that I have dictated in my statement before
the police that “the rod of the window was broken by
opening the window of offside of seat no. 7 where I was
sitting.” It is true that I have not dictated in my statement
before the police that I was provided with first aid by a
karsevak who sprinkled spray on my injury of nose. Thereafter,
the train was taken in yard, and after the burnt coach had
been separated, the train moved again and we left for
Ahmedabad in it.” It is true that I have not dictated in my
statement before the police that “after I had reached home at
Ahmedabad, I came to know while changing clothes that there
are scars on my backpart. As there was disturbance for two to
three days, I went to the Civil Hospital for treatment after
second or third day. The witness states that it has been
dictated that “I got treated in Ahmedabad Hospital.”
In crossexamination, this witness admits to have dictated in
his statement before the police that “they started breaking the windows
of our coach and the glasses of windows broke down on account of
stonepelting”. Further in his statement before the police he had
dictated that “the rod of the window was broken by opening the
window of offside of seat no. 7 where I was sitting.”
9 The following witnesses are injured witnesses, who were
travelling in Sabarmati Express on the day of incident.
9.1 Gayatriben Harshadbhai Panchal, passenger in
Sabarmati Express having Seat Nos.41 to 46 in S/6 coach, PW175
Exh.891 stated in paragraph 3 of examination in chief and
paragraphs 17 to 20 of crossexamination, as under:
“3. On 27/2/2002 in the morning at about quarter to eight
our train had arrived at the Godhra Railway Station. There the
train had stopped for about ten minutes. Thereafter the train
started again and immediately stopped at the railwayPage 690 of 988
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platform. At that time there was stone pelting on the train.
Thereafter after some time the train started again, and after
travelling about half a kilometer again it had stopped. There
from the side of the coach there was heavy stone pelting
started and the Muslims were shouting instigating slogans.
They were shouting, “Hindu ko jala daalo, kafiro ko maar
dalo’ [burn the Hindus, kill the fanatics], and they were
abusing. Due to heavy stone pelting I was scared and shut
the windows. These persons were carrying weapons like
sword, rods, pipes and etc and they had broken the windows
and started to pour liquid inside from the carboys and these
persons had thrown fire inside . Due to stone pelting we had
climbed onto the upper seats. These persons had pelted
stones one stone hit my elder sister Pratiksha and my sister
started crying. She had shouted that, ‘mummy I am hit by
stone on my stomach and on my head’, these persons had
thrown fire inside the coach so my father had called us
down. Due to fire the people in the coach were shouting.
We were going with our father in the meanwhile my sister
Chhaya was left behind onetwo persons. Thus, my father
started to cry that, ‘my Chhaya is left behind’, there was lot
of smoke inside and we had tried to come out but could not
come out and due to smoke the vision was blocked and we
family members got separated. I had gone to the left side of
the coach, a little light was there and all the rods of a
window were broken and one rod was loose which was
pulled out by me and one old man so it came out. Thereafter
the old man had jumped out from the window. I had pushed
out my face and hand and asked the old man to pull me out,
so the old man had pulled me out. Similarly Pujadidi was
also pulled out from the window. After coming out my
sister’s friend was injured she was got thrown at a little
distance. After pulling us down the old man ran away from
there and where I had descended I had seen there that at
a little distance fourfive Muslim youths came carrying
weapons towards me. These persons were in Pathani
apparels. They had cap on their head and beard and were
having red handkerchief round their neck. Of them one
Muslim youth had held my left hand. I had mustered
courage and tried to release my hand but he had not left
my hand so my sister’s friend had pelted one stone and the
said stone hit him on his hand so he released my hand.
Thereafter immediately myself and Pujadidi had gone
beneath the coach and went onto the other side. After goingPage 691 of 988
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onto the other side in a short while my aunt and her son came
from opposite side I had seen them and I ran and hugged
my aunt and started crying and while crying I said that,
‘mummy, pappa and two sisters are left inside the coach’,
my maternal aunt informed me that, ‘your mummy, pappa
and sisters have come out from the coach, and they are taken
to the hospital’, thereafter in the same train at about 1230
we departed for Ahmedabad.
17 Our train had stopped at the Godhra Railway Station at
the time of incident total three to four times. As per my say
there was stone pelting on the train twice. It had not
happened that the train started from the platform and
thereafter stopped only once and there was stone pelting
only once.
Question :: Is your understanding low?
Reply :: I do not have reply to your question.
Question :: Do you have difficulty in hearing?
Reply :: NoI do not remember that on 8/3/2002 and on 22/1/2005 in my
statement before the police I had stated that ‘after the train
started it reached about half a kilometer and immediately it had
become slow and stopped and immediately from the left side
there was sudden stone pelting started’, I do not remember that
in both my statements before the police whether I had stated
that ‘train started from the platform and thereafter it had
stopped twice and both times there was stone pelting’.
18 The liquid that was thrown in the coach what was
that liquid I do not know. The witness states that along
with throwing the liquid the fire was catching. The liquid
was sprinkled from the carboys as per my say. I am not
aware of the fact that when the liquid was sprinkled from
the carboys into the coach at that time, whether part of it
had dropped on the ground or not, I am not aware of the
same. This liquid was kerosene and petrol and it was
spilled in the coach from the carboys I had not seen that.
I am not aware of the fact that at the time of spilling the
petrol or kerosene in this manner it was spilled on the
ground or not. I am not aware of the fact that whether
there was any lid or cover on the carboys or not. ThisPage 692 of 988
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liquid was spilled inside the coach from the windows. It
had not happened that I had not seen anyone pouring
petrol or kerosene into the coach, but I had seen the
sudden fire from the back of the coach. I do not remember
that in statement before the police I had stated that, ‘in the
meanwhile from the rear of the coach suddenly there was
fire and smoke started coming towards us’, it is true that
due to smoke in the coach I was getting suffocated and
nothing could be seen in the coach. In my previous
deposition I have stated that liquid was sprinkled in the
coach, thereafter I had seen them pouring petrol and
kerosene in the coach and thereafter from the rear of the
coach suddenly there was smoke, thus I have stated
these facts of having seen spraying liquid is correct.
19 On the left side the person who had assisted me in
getting down from the window what was the age of that
person I cannot say. The said person might have been
about fourty five years old. On the left side of the window
we had come out at that place on the ground there were
heaps of metal stone, Pujadidi had jumped over it. The
said metal heap was how far from the coach of the train I
do not know. The heap was about two to two and half feet
hight. It is true that, at that time on the left side there was
mob of about one thousand to one thousand five hundred
persons. I am not aware of the fact that between the heap
and the train whether there was any way or not. Pujadidi
had fallen on the heap so she was injured by stones. I am
not aware of the fact that whether with regard to these
injuries Pujadidi had taken any treatment or not. It is true
that after breaking the rod the person who was with me
he had saved me. That the rod was broken by me and the
person together. It had not happened that this rod was
pulled out by me and Pujadidi together. On 8/3/2002 in
my statement before the police I have not stated that this
rod was pulled out by me and Pujadidi. It is not true that,
in my statement before the police on 22/1/2005 it is
stated that the rod of the window was broken and
removed and we came out, I have not stated this. It is
true that on 22/1/2005 in my statement before the police
I have stated that, ‘whoever got place from anywhere
tried to make efforts to go out, I was also making efforts
to go out from the window, first the person who had gone
out from the same window had pulled me out from thePage 693 of 988
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window and Pujadidi had also jumped out from the same
window.’20 I am not aware that on the right side of the train
whether there was any mob or not. On the left side of the
train when I was trying to get out at that time I had seen
the mob with weapons and carboys. The witness states
that, due to fire in the coach they had moved back a little.
It is true that at the time of descending on the left side
from the train on seeing the mob I was scared of death.
When I was descending at that time the mob was about
200 to 250 feet away. The witness states that her hand
was held and at that stage she had identified. I state
about holding my hand, at that time, the said person was
not running but as per my say he was walking speedily
and came towards me. On seeing him coming towards me
I had stood up to make efforts to run, at that time this
person came near me. At that time Pujadidi was about five
– seven feet away from me. Whether anyone tried to catch
her also or not I am not aware. After my hand was
released then from amongst those persons whether any
person chased me or not I do not know. The witness
states that at that time immediately she had gone below
the coach No. S/6 and went onto to the right side, at that
time the coach was burning. It is true that from beneath
the coach when we crossed over to the right side, she and
Pujadidi did not sustain any burn injury. In this manner,
they had gone from beneath the coach and due to stones
she had injury on my knees. Our hands were also bruised
due to crawling over stones. The injuries on the hands and
legs which I am stating, in this regard I had not taken any
kind of treatment. Puja had not sustained any injuries on
going from beneath the coach. On the right side
ambulance arrived or not I am not aware. From that side
the injured were taken in ambulance to the hospital for
treatment whether I had seen this or not I do not
remember. After coming onto the right side I had not
gone to the platform. The witness states that on that side
at a distance she sat down on the tracks. On that day upto
about twelve I sat there. At that time with me was my
maternal aunt Yoginiben, her son Chirag and Pujadidi. It is
true that thereafter when the train departed for going
towards Ahmedabad then we had left for Ahmedabad.
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maternal aunt had informed me that my motherfather
and sisters were taken to the hospital for treatment at
that time I had felt it necessary to find out about them. I
had personally not gone to any place for making inquiry
in this regard. My aunt or her son had also not gone
anywhere for making their inquiry. I do not remember
that due to incident the persons who were injured were
rescued by karsevaks, volunteers, police persons or not.
At the place of incident we stopped for about four hours, in
the meanwhile I had not made any inquiry about my
mother, father or sisters in any manner. When the train
arrived at Vadodara at that time on the platform there were
doctors, I had taken treatment from them and I had
informed them that how I was injured. On the platform at
that time the policemen were also present. At that time I
had informed the policemen about the incident and my
mother, father and sisters were not found. The police had
recorded these facts or not, I do not know. It is true that
on 8/3/2002 the police came to record my statement over
there, prior to that I had not declared any facts regarding
the incident before police in Ahmedabad. The witness states
that the situation in the house was such that I could not go
out”.
9.2 Satishkumar Ravidutt Mishra, a passenger in Sabarmati
Express having Seat Nos.33, 34 and 35 in S/6 coach, PW96 Exh.666
stated in paragraphs 2, 6 and 8 of his deposition as under;
“2 On 27.02.2002 in the morning at about seven thirty to
quarter to eight our train arrived at Godhra Railway Station.
At that time I had descended on the platform for tea and
refreshments, and after taking tea I had come back to the
coach, in the meanwhile there was commotion and I came
to know that there was stone pelting on the coach. Thereafter
the train had started, and after running for about five
minutes again it had stopped, and again the stone pelting
had started. There was heavy stone pelting and so we had
closed both the windows, in spite of this there was heavy
stone pelting so both the windows were broken, therefore for
saving we had climbed on the seat. At that time from the
outside the shouts of ‘maaro, kaato’ [beat, cut] were heard.
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Therefore the people inside were also shouting due to stones
hitting, and were trying to save themselves. In the
meanwhile the stones started coming inside from the broken
windows also and from the rear side of the coach the fire
had started and thereafter smoke started to form in the
coach. Thus, for protecting ourselves myself, my wife and
daughter started to make efforts for going in front. In the
meanwhile the fire had increased and the fire had reached
behind me. At that time for protecting ourselves went near
the window on the opposite side of the platform where
there is single seat there I had broken the rods of the window
and there was another one rod broken. After breaking the
window first of all I had thrown out my daughter from the
coach and I had also assisted other passengers from going
out from the windows. I was assisting all of them from going
out from the window at that time the fire reached me and
both my hands, back and forehead were burnt and I was
injured and I had made efforts of going out from the window
at that time several persons who had gone out from the
window had pulled me out from the window. After coming
out I made search for my wife, but I could not find her. At
that time the police came and the police had fired.
Therefore several persons tried to run, they were carrying
swords, sticks, rods, pipes in their hands.
6 It is true that the train was on the platform at that time
there was stone pelting. It is not true that the said stone
pelting was free fight between the passengers and the
persons on the platform. The witness states that the stole
pelting was done on the train from outside the platform
boundary area. It is true that I had taken tea from the
platform and gone at that time I had heard that there was
stone pelting on the train. It is true that therefore I had
closed the windows. It is not true that in this manner the
windows were close and at that time there was fire in the
coach. The witness states that after the windows were
broken thereafter there was fire. It is not true that in my
statement before the police I had stated that, ‘we had shut
the windows. Thereafter after about one kilometer
distance the train stopped and the stone pelting started,
and when the stone pelting started and the coach was on
fire we had tried to run.’ the witness states that due to
stone pelting the windows were broken. It is true that in none
of my statements before the police I have stated clearly that,Page 696 of 988
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‘inspite of this there was heavy stone pelting both the
windows were broken. Thus for saving ourselves we had
climbed onto the upper seats.’ it is true that in any of my
statements before the police I have not stated that, ‘in the
meanwhile the stones started flying in from the broken
windows, and the fire from the rear side of the coach
started’ it is true that in my statement before the police I had
not stated that, ‘therefore for protecting ourselves myself, my
wife and my daughter made efforts to go towards the front
side. In the meanwhile the fire had spread and it had
reached behind me. ‘it is true that in none of my police
statements I have not stated that, ‘at that time for protecting
ourselves went near the window on the opposite side of the
platform where there is single seat there I had broken the
rods of the window and there was another one rod broken.’
The witness states that in my statement before the police
I had stated that, ‘the window was opened and using
strength broken the rod’. It is true that in none of my
statements before the police I have stated clearly that, ‘the
injuries that were caused to me were caused when I was
trying to make efforts to help Archana and other passengers to
go out from the windows at that time I had sustained
injuries.’ it is true that in none of my statements before the
police it is clearly stated that, ‘at that time the police came
and the police had fired and therefore several persons had
tried to run away, they were carrying swords, sticks, rods,
pipes and etc. in their hands.’ the witness states that on
6/3/2002 in my statement before the police it is stated
that, ‘the police had fired so the people in the mob ran
away I had seen them. They were about 1000 to 1500
Muslim women, men, children they were carrying swords,
sickle, steel pipes, sticks and carboys filled with liquids.’8 In this coach at that time how many passengers were
there approximately I do not know. The stone pelting that
was going on at that time it was not from both sides but
was from the platform side. I am not aware of the fact that
when the stone pelting was done at that time platform side
windows of the coach were close or not, it had not happened
that the seat on which I was sitting on the said seat and at
that time the burn injuries that were caused to me. It is not
true that when I got burnt at that time I was sitting in
front of my daughter Archana. It is true that when I had
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coach. It is true that at that time the passengers were
pushing each other for going out from the coach. It is true
that during the incident I did not have any burns injuries
below my waist. It is true that the pant worn by me at
that time was also not burnt at that time from any place.
The witness states that on certain parts there were holes
formed. I have not produced the clothes worn by me at the
time of incident before the police. It is not true that when
the fire broke out at that time in the coach the windows and
doors of the coach were closed. The witness states that the
windows were broken. It is true that in the passengers in the
coach and the persons of the mob outside were shouting at
the time of incident. It is not true that on 18/3/2002 in my
statement before the police I had stated that, ‘who had set
fire to our coach and who had pelted stones or to which
community they belong I have not eyewitnessed it,
therefore I cannot identify anyone.’ it is not true that the
people in the mob were of Muslim community, this I came to
know after the incident on watching the TV news and daily
newspapers. It is not true that on 18/3/2002 in my
statement before the police I had stated that, ‘but from the
news media I came to know that on the date of the incident
the persons who had pelted stones on the coach No. S/6 of the
Sabarmati Express Train on the Godhra Railway Station were
Muslim community persons.’ It is true that in the coach
there was smoke and so there was burning in the eyes and
choking of breath. It is true that due to the smoke nothing
could be seen. It is not true that due to the smoke I could
also not see anything outside the coach.
9.3 Pravinkumar Amthalal Patel, passenger in Sabarmati
Express , PW170 Exh.873 stated in paragraphs 3, 10 and 14, as under:
“3. On 27/2/2002 in the morning at about 7.30 our train
had arrived at the Godhra Railway Station. After the train
stopped then we had descended at the railway station and had
tea and refreshments. Thereafter in a short while the train
started and in the meanwhile there was scuffle at that time
we had seen and there was stone pelting on the train. When
this stone pelting was done at that time the train was on the
platform, thus we had shut the windows. Thereafter the trainPage 698 of 988
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had started from the platform and went a little ahead then
we had opened the windows. In the meanwhile from the
Godhra side the stones started coming. After traveling
about one kilometer the train had stopped suddenly and
there was heavy stone pelting, therefore we had shut the
windows. The glass windows were close, we had seen
through it that 1500 to 1000 persons mob carrying stones,
sticks, sickle and etc. and these persons were saying
that, ‘Karsevaks bahar niklo ham maar dalenge, Ram
Mandir nahin banega, Pakistan Zindabad’ [Karsevaks come
out we will kill you, Ram Mandir will not be formed, hail
Pakistan]. At that time there was smell of kerosene, and I
had seen that from the rear side from the third window
the kerosene was sprayed from the carboy. Thereafter after
some time from the Godhra side there was smoke started
coming inside the coach, and we started choking and
people started shouting. In this coach on the engine side
towards the highway road side door near the window there
was seat for two persons, I was sitting on it. At that time
Ranjitsinh was also sitting with me. Opposite to me one
military man was sitting, whose leg was cut, he and his wife
and son were sitting. At that time the stone pelting was going
on. Since there was stone pelting so the military man had
kept his suitcase on the window, and hid his son below the
seat. The suitcase moved so the stone hit the military man
on his nose. There was fire in the coach so myself and
Ranjitsinh had taken out the military man and also taken out
his wife and son. I could also not bear so. I had also
come out. When I had descended from the coach then at
a distance of 70 feet there were two persons standing, I
went there. They had spread out their hand so I had gone
towards them. Over there 6 to 7 persons had gathered,
someone had stick and someone had rod, these persons
started to assault me. From them one person had said
that, ‘finish him’, therefore I sat down and these persons
were assaulting me using sticks I had raised my left hand
so due to stick hitting me I had fracture, and I was also
assaulted on my back using stick and rod. Below the
knees of two legs I was assaulted using sticks and rods,
therefore I had acted of becoming unconscious. These
persons had assaulted me and taken my two gold rings and
gold chain. From my trousers pocket they had taken out Rs.
3000/. in the meanwhile I had taken out other money from
my pocket and offered them and on seeing the mandaliya onPage 699 of 988
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my hand I said to them that, ‘main aisa hun, main aisa mantaa
hun’ [I am like this, I believe this], so from amongst them
one said that, let him go. Thereafter I had saved my life and
ran and came to the road.
10. When the train started for the second time from the
platform then thereafter after about one kilometer it
stopped again. In this one kilometer distance the train was
running at that time I had not seen the stone pelting with my
eyes. The witness states that there were sounds of stones
falling. During this time period the windows were opened,
and left open. It is not true that during this period from
the window there was no stone landed inside the coach and
it did not hit anyone, this had not happened. I say that
during this period the stones came in and also hit. I was
inside the coach at that time I was hurt by one – two
stones. The said stone hit me on my shoulder and head.
The train stopped at the place of incident and the mob
was seen so the doors and windows of the coach were
shut. The side on which I was sitting doors and windows
were shut. It is true that after the doors and windows
were shut then what was the mob doing outside could not
be seen. I had seen the smoke spreading in the coach.
The witness states that after the windows were broken
thereafter seen the smoke forming. After the fire in the
coach, first, the military man was providing help and
thereafter after some time I had also come out. I am not
aware of the fact that due to smoke and fire in the coach the
commotion had started or not. The side on which I had
descended on the said side how many other passengers had
descended. When I had descended at that time there were no
policemen. At that time on that side there was no mob. It is
true that when I came out from the coach till then I did
not have any burn injury. It is true that due to smoke in the
coach I had breathing problem and burning sensation in the
eyes, after descending from the coach I had not provided
the assistance to anyone else for descending from the coach.
14 It is true that on 17/4/2002 in my statement before
the police I have stated that, ‘on 27/2/2002 in the morning
at seven o’clock I had come to the Godhra Railway Station
and so myself and other Ram Sevaks had descended at the
Godhra Railway Station for tea and refreshments, and after
the tea and refreshments we and other Ram Sevaks had
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boarded Coach No.S/6, and from the Godhra Railway
Station the train had started and thereafter after travelling
for about one kilometer there was chain pulling and I had
seen that about fifteen hundred to one thousand persons
mob was pelting stones on the train, and after some time
the coach No. S/6 which I had boarded they started to
break the doors and glass of windows of the said coach
and in our coach they had thrown kerosene and set on
fire. Therefore myself and other Ram Sevaks started to
choke. Thus, we had opened the off side door and came out
and started running at that time at a little distance an
unknown person wearing pant shirt called me. And I had
gone towards him so six persons mob was there, they had
assaulted me using fists and kick blows and dealt stick
blows on the left hand and my hand was fractured and on
the right and left leg also I was assaulted using stick and
so I had become faint like.’ I am not aware of the fact that
in my statement before the police I had stated that, ‘I was
assaulted so I had become unconscious therefore Rs.3000/
and two gold rings and one gold chain were taken by these
two unknown persons. This is my request to investigate the
same. I had become scared and therefore I cannot identify
the persons who had taken this ring and gold chain and cash
amount Rs. 3000/.’ it is true that in my statement dated
17/4/2002 I had personally not gone anywhere for making my
statement. During the period of my statements I was not
knowing any of the police officers in Mehsana by their names,
I am not aware that who are called the constable, PSI, and
PI. My neighbour Rameshbhai was not knowing the name of
any Police Officer. It had not happened that any Bajrang Dal
member had given me the name of any police officer or not,
this had not happened. In this case the investigations were
carried out by Mr. Noel Parmar, I was not knowing this.
Who is the Superintendent of Police I am aware of the same. I
have not heard the name of Mr. Mothaliya. I did not have any
occasion to meet Mr. Mothaliya personally. Mr. Mothaliya had
called me and recorded my statement this had not happened.
For identification of chain a certain officer had called me, but
whether he was Mr. Noel Parmar I cannot say. How was the
appearance of the police officer and how was his physical
appearance or any other identification marks I cannot state.
How was the appearance of the Executive Magistrate I cannot
say”.
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10 The testimonies of the above witnesses not only establish
intention of members of unlawful assembly, but their presence in
furtherance of their common object to commit the crime and their
testimonies are inextricably interwoven to establish execution of
conspiracy by the core group of conspirators and to make an assault on
the train and to set on fire coaches inasmuch as members of unlawful
assembly were armed with deadly weapons, acid bulbs, burning rags,
iron pipes, etc. and in spite of round of firing, the mob refused to
disburse and continued to make violent attack. When members of
unlawful assembly were apprehended and they were rounded off by the
police once again an attempt was made by such members to release
them. All these would collectively reveal purpose and design viz. object
of unlawful assembly to commit the crime for which they were charged.
PART XIIC
RAILWAY EMPLOYEES
1 The next group of witnesses are the Railway Employees
who were discharging their duties either on the field or in the train;
they are:
[1] P.W.111 Fatehsinh Dabesinh Solanki (Points Master)
[2] P.W.138 Gulabsinh Laxmansinh Tadvi (Parcel Office Clerk)
[3] P.W.153 Points Man
[4] P.W.126 Harimohansinh Meena (Assistant Station Master)
[5] P.W.127 Traffic Inspector “A” Cabin
[6] P.W.116 Uday Chandrakant Katiyar (Electrician, Vadodara)
[7] P.W.128 Aakhirlal Gurjarilal Verma (Station Master “A”
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Cabin)
[8] P.W.185 Janak Bhupendra Popat (Jr.Engineer, Godhra
Railway Stn)
[9] P.W.131 Mukesh Raghuvir Prasad Pancholi (Wagon
Repairer, Godhra Yard)
[10] P.W.162 Gangaram Javanram Rathod (Senior Section
Engineer, Ahmedabad).
[11] P.W.135 Satyanarayan Panchuram Verma (Railway Guard)
[12] P.W.136 Sajjanlal Mohanlal Raniwal (T.C.)
[13] P.W.228 Rajendrarao Raghunath Jadav (Engine driver).
2 Witnesses other than karsevaks on platform No.1 or
platform No.2 private witnesses.
PW138 Gulabsinh Laxmansinh Tadvi (Parcel Office Clerk)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Duty hours 6:00 a.m. to 2:00 p.m.
dated 17.02.2002
2. He went for other work to
platform nos.2 and 3 then returned
and saw commotion at ‘A’ Cabin
Contradictions/omissions, etc.
1. Disputes the omission in the
statement dated 01.03.2002 that the
passengers were pelting stones on the
people standing behind the parcel
office.
2. Admits that the peoples standing
behind the parcel office were pelting
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stones and bottles.
PW228 Rajendrarao Raghunath Jadav (Engine Driver)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Himself, Assistant Driver
Mukeshbhai Panchori and GuardS.N.
Verma were present with him on the
train.
2. Informs that he was sending
Assistant Driver Panchori.
3. Resetting of chain pulling.
4. Vacuum drop at ‘A’ Cabin.
5. Double P.V. switch on steel train
stopped at Kilometer No.468/1990,
informs the guard, mob comes, closes
the engine doors, threats.
6. Mob goes to the coach.
7. Informs SS Godhra, asking them to
help.
8. Lifted the windows and notices
stones pelting on the coach.
9. Goes for the help of police, fire PWs127, 128
brigade and asks the Assistant Engine
Driver Pachori and engine Assistant
Driver to help the passengers by fire
extinguishers.
10. Failed
11. Instructs the unclipping of the
affected coach.
12. Could not be unclipped for want
of electricity supply.
13. Puts the wooden obstruction to
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prevent them.
14. Goes to Railway Godhra Police
Station for lodgment of the
complaint.
15. Was frightened and therefore
gave complaint in brief.
16. Takes the train to yard, affected
coaches were unclipped.
17. Taken to the scene of offence
18. Recovery of burn pieces of cloth
and other articles.
19. Informs at 08:05 hours
incident ? or informed the incident
occurred at 08:05 hours to Deputy SS
and made entries in the driver
notebook.
20. Reason for drop of vacuum stated
by him can be; (I) chain pulling, (II)
dislodgement of hosepipe or
puncture in it or upsetting of disk by
outsider.
21. Learns from Assistant Virendra
Khuswa who was in the lobby as also
carriage department personnel that
two punctured hosepipe were
replaced.
22. His statements were recorded on
02.03.2002 and 26.04.2002.
23. Whistle, PW: 127
24. Gets on the driving seat
25. Gunshot
26. Gets down from engine
Contradictions/omissions, etc.
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1. Admits the omission as regard his
going to Police Station and revealing
the information to the police.
2. Admits the omission regarding PWs135
arrival of mob at ‘A’ Cabin, closing of
shutters of windows, threat by mob, its
proceeding towards the coaches,
weapons with them, his informing to
deputy SS by walkietalki and guard,
his lifting of windows shutter and
noticing mob pelting stones on the
coach and attempts of the mob to
break open the shutter of the windows
of the coach by use of weapons, his
instructing assistant driver to
unclipped the affected coach and his
reluctance, the loss of electricity
supply and other omission (Para25)
PW136 Sajjanlal Mohanlal Raniwal (T.C.)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Incharge S3 and S4, S3 and S4
overcrowded, not permitted to let in,
not entered into other coaches also
because of overcrowdedness.
2. Gets down to go to other coach.
3. Finds commotion between some
persons on the platform.
4. Guard and himself come down.
5. Again gets into the guard coach.
6. Guard coach on railway garnada.
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7. Passage of the fire brigade was
blocked by some people – police tried
to dispel them, firing and then arrival
of the fire brigade.
8. Guard resets disk
PW135 Satyanarayan Panchuram Verma (Railway Guard)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. On chain pulling comes down.
2. Resets the disk – chain pulling.
3. Notices Assistant Driver, who had
also come for resetting the chain
pulling.
4. Movement of the train at 8:00
o’clock, stoppage at 8:05 o’clock
again.
5. Locks himself in the guard coach
after shutting down the windows and
doors.
6. One of the windows broke
because of stone pelting.
7. Learns about burning of the coach,
calls for help.
8. Comes down on the offside.
9. Notices fire.
10. Statements recorded on
27.02.2002, 09.03.2002 and
11.02.2005.
Contradictions/omissions, etc.
1. Exh:778 guardbook notings that
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he went to GRP Office for lodging the
FIR but disputes that he and driver
both have gone together.
PW127 Rajendraprasad Mishrilal Meena (Traffic Inspector “A”
Cabin)
Particulars of Addl. facts Prosecution Witnesses who
corroborate the crucial facts
1. Instructs Shri Akhil Kumar to give
signal at 7:45 a.m.
2. Gets down to reset chain pulling.
3. Notices 300 to 400 people,
running with train from station side.
4. Climbs into the cabin
5. Instructs disconnection of
electricity supply
PW128 Aakhirlal Gurjarilal Verma (Station Master “A” Cabin)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Statements recorded on
01.03.2002 and 04.05.2002.
2. Goes for resetting of chain
pulling,
3. Police caught some witnesses
Contradictions/omissions, etc.
1. Admits the omission in the
statement dated 04.05.2002 that the
police personnel resorted stick
winging, firing and apprehended
some persons.
PW131 Mukesh Raghuvirprasad Panchori
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Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. The train started at 7:57 in the
morning.
2. Statement recorded on
27.02.2002.
Contradictions/omissions, etc.
1. Standing on the metal heap and
pelting stones.
2. Important omission in Para15.
3. Admits that second time stoppage
was not on account of chain pulling,
but was on account of drop in the
vacuum, which is not chain pulling.
4. Admits that he did not inquire the
support from which vacuum had
dropped.
5. Admits that vacuum pipe opens
accidentally, there may be droppage of
the vacuum.
PW162 Gangaram Javanram Rathod (Senior Section Officer)
Particulars of Crucial facts Prosecution Witnesses who
corroborate the crucial facts
1. Did maintenance work of 1 to 50
coaches of Sabarmati Express after
17:30 hours.
2. Relevant Paras4 to 8
Cross: New system of chain pulling no possibility of chain
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pulling from outside if the train is not on the platform, the vacuum
disk cannot be reached from ground level. Height of the train from
railway track is 13 ft. 1 inch.
3 PW111 Fatehsinh Dabsinh Solanki This witness was a
pointsman who unclipped the effect and took the train to line No.10.
Only significance of evidence of this witness in the context of the
arguments that the accused were involved in managing the chain pulling
for halting of the train at a convenient and agreed place i.e. ‘A’ cabin, is
that he does not whisper about resetting of the chain pulling system
before unclipping the effect took and taking the train to line No.10.
From his testimony, it appears that he noticed boggy No.S6 inflames
and after the restoration of electricity supply, he could move the train for
the aforesaid purposes, in the usual course, without having to reset the
chain pulling system.
However, in the crossexamination (para-6 of PW-126
Harimohan Fulsing Meena, who was also a pointsman), it is made clear
that droppage of the vacuum on account of chain pulling may be
responsible for the halting of the train and after the release of the pulled
chain, vacuum would automatically returned within two or three
minutes. In evidence of Rajendraprasad Raghunathrao Jadav, Engine
Driver of Sabarmati Express PW228 in his testimony before the trial
court admits to have repaired the hose pipe and even Ajay Kanu Bariya
PW236, who witnessed the incident also make reference to such
damage to the hose pipe. This aspect could explain that movement of the
train after restoring the electricity supply upon repairing the hose pipe.
4 It also appears from the crossexamination PW-126 that at
the time of first chain pulling, there was a stone pelting from both the
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sides i.e. from the back of parcel office and from the persons standing
opposite to those persons.
PW-110 Bhupatbhai Maniram Dave
[1] Supports all material particulars including possession of
carboy, sprinkling of inflammable therefrom etc.
PW-118 Ashwinbhai Govindbhai Patel
[1] Supports the story of carboy. He also supports the existence
of heap of metal. He also supports the exhortation through mike
of the mosque.
Testimonies of Railway Employees
5 Rajendrarao Raghunathrao Jadav, PW228, who was
Engine Driver of illfated Sabarmati Express train and took up the
control and command of the train from Ratlam Station along with
Assistant Driver Mukesh Pachori, PW131 and guard of the train
Satyanarayan Pachuram Varma PW135. The above witness in paras 1
to 6 stated as under:
“1 I have been performing my duty as an engine
driver of train in Western Railway since 1995. I have been
residing in Ratlam, Madhya Pradesh at my aforesaid address
since my birth.
2 On 27/2/2002, I was present at my house. At that
time, at about 330 hrs. I received a phone call at my house
that I have to go to Vadodara taking the Sabarmati Express
Train. Therefore, I came to Ratlam Station. Sabarmati Train
arrived at Ratlam station at 425 hrs. At this time, Mukesh
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as assistant driver and guard respectively. Number of the said
train was 9166Up. We left for Vadodara from Ratlam Station
at 440 hrs. We reached to Godhra Railway Station at 740 hrs.
in morning. On receiving signal at 745 hrs., I blew whistle and
received a sign of “all right” from the guard and started the
train from the station.
3 The train may have gone about onetwo coaches
ahead and as chain was pulled, I blew whistles of the chain
pulling. I informed the guard through walkietalkie about
chain pulling. I informed the guard through walkietalkie and
said that I am sending the assistant driver from front side;
inquire about the coach where chain pulling has taken place.
The assistant driver and the guard reset the chain pulling in
the coach where it had taken place and informed me about
this. After receiving sign of “all right” from the guard, I
started the train. The train left but meanwhile stone pelting
started on the train. “All right” was received with a flag in
connection with signal near from ASM of ‘A’ cabin. Our train
may have gone about fourfive coaches ahead from ‘A’ cabin
and it was found that vacuum drop had taken place in the
train. Considering the situation of stone pelting on the train,
I switched on double PV switch in the train and hence
double exhauster got started. Though there were 1000
amperes, 700 volts and 6 notches in the engine, our train
stopped near kilometer No.468/19. I immediately blew
whistle about chain pulling. I also informed the guard in
this connection through walkietalkie. At this time, a mob
came near the engine. As they were seen rushing towards
us, doors and windows of the engine were shut for our
protection. This mob gave such warning that “Master, if you
will get down, you will be chopped (killed).” Thereafter, this
mob went towards backside of the engine i.e. towards the
coaches. I had seen deadly weapons like sword, gupti, sticks,
etc. with the persons of this mob. I immediately informed
about this to Deputy S.S., Godhra through walkietalkie. Along
with this, I also informed to the guard of the train. I asked
them to send persons of RPF, GRP and staff for the protection
of passengers.
4 I lifted window of the engine and saw towards
the coaches that the persons of mob were pelting on the
coach. Persons of the mob were trying to lift and damage
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closed by the passengers. After some time I saw smoke
coming out of the coach. I informed regarding this to
Deputy S.S., RPF and GRP of Godhra. I also told the master
through walkietalkie that immediately sent firebrigade.
Thereafter I called my assistant driver and assistant driver of
our dead engine and asked them to try to put out the fire with
fire extinguishers which we had. Both of them had gone with
the fire extinguishers and after some time they returned and
told that they could not succeed in extinguishing the fire.
Thereafter, I again reminded Deputy S.S. through walkietalkie
as to whether he has informed firebrigade or not; we have
tried to extinguish the fire but we could not succeed.
Thereafter, I told the assistant driver to unfasten coupling of
the coach in which fire has taken place. But he was giving
excuses for doing so. Therefore, I told him that you are an
employee of railway, go with flag and because of this you will
not face any problem. As the assistant driver was seeking for
a sign from me in order to loose the coupling, I started the
train and tried to take it little backward. But, electric supply
stopped suddenly at that time. The assistant driver came to
me and said that though I am asking for a sign to unfasten the
coupling, why don’t you do so. Therefore, I told him that
electric supply has stopped. I informed Deputy S.S. of Godhra
station through walkietalkie about the stoppage of electric
supply. I also informed that as electric supply has stopped and
as it is necessary to protect other coaches from the fire, send a
diesel engine. As electric supply had stopped, in order to avoid
“roll back” of the train, I put wooden obstacles and as electric
supply had stopped, I switched of the engine and instructed
the assistant driver to remain present in the engine.
5 Meanwhile, three to four police personal arrived
towards engine and told me that come to Godhra Railway
Station and inform about the incident. Therefore, I went to
Godhra Railway Police Station with them. As I had got
frightened due to the incident, I dictated facts of the incident
in brief before the officer in Godhra Railway Police Station.
Thereafter, I came towards the engine within some time.
Officers of Railway told me that electric supply will be restored
in some time and hence you remain present in the engine.
Thereafter, I made pressure to start the engine. Instruction
was received from railway officer that electric supply has
been restored and you lift “pento” of the engine. Therefore,
I lifted “pento” of the engine so that it can touch with thePage 713 of 988
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wire of electricity. Thereafter, as electric supply was
restored, I started the engine and removed the obstacles
which I had placed below the wheels of the train. Thereafter,
I received an order to brake the train in yard. Meanwhile, a
mob arrived there and they started heavy stone pelting.
Meanwhile I heard sound of firing. I performed the work of
centering with the help of walkietalkie after closing the
windows of the engine. Thereafter, I took the train front side
and backside for twothree times. Two burnt coaches were
separated in the yard and the train along with other coaches
was kept in the yard. As I was very much frightened due to the
incident, I requested the railway authority to relieve me as a
driver of this train. During the time between 1230 to 1235,
charge of this train was handed over to another driver.
Thereafter, I again went to Railway Police Station. After
some time, the police personals took me to the place where
the incident had occurred where burnt pieces of clothes and
other articles were lying. The police carried out procedure
in that regard. As our ADRM had arrived from Vadodara, he
was briefed about the incident. Thereafter, at about 5 6
hours, police personals took me in the yard where 58 dead
bodies were lying covered with cloth. I am being shown the
complaint at Mark28/1. It bears my signature in the margin
at the backside of first page and at the end of the writeup. I
identify my signatures. I had put my signature for receiving
copy of the complaint. The facts written therein are true.
Mark28/1 has been given Exh1190. I am being shown
‘driver notebook’ at Exh761. Viewing the same, I state that
name of stations, time of arrival and departure of trains are
written and they have been written in the handwritings of
my assistant driver Mukesh Panchori. I identify them. Coach
numbers of the coaches in which chain pulling took place, the
entries about informing the Deputy S.S. in connection with the
incident took place at 805 hrs, etc. have been written in my
handwritings. I identify them and the facts written therein are
true. Necessary entries regarding our work performed during
the time when we are present on duty in the engine, have been
made in this ‘driver notebook’.
6 There is one vacuum gauge in engine which
indicates position of the vacuum. After starting the train, the
train gets braked with quantity of vacuum becoming less. As
the speed of train gets slower, we come to know about
vacuum drop in the meter of vacuum which is fitted in thePage 714 of 988
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engine. There is also arrangement of meter of vacuum
gauge in the coach of guard and in the case of vacuum being
dropped, the guard can know the same through its meter.
Initially it was not known as to why vacuum got dropped.
The reason for vacuum being dropped can be such that
chain pulling may have taken place or hose pipe may have
got separated or torn. It may also happen when chain
pulling is done by passengers or some miscreants may have
turned the disk from outside.
Que. In this case, what reason did you find for vacuum
being dropped near ‘A’ cabin?
Ans. It can be any one reason out of the aforesaid
reasons stated by me.
When I asked as to how vacuum was created, assistant
Ravindra Kushvah who was in the lobby of station and
employees of carriage department told that as two hose pipes
had torn, they have been changed. Police took my statement
on 2/3/2002 and 26/4/2002 in connection with the incident.
Crossexamination by Ld. Adv. Mr. A. D. Shah for accused
persons.
(Accused No. 4, 6, 10, 13, 38, 42, 51, 54, 58, 59, 61, 69, 75,
78, 79, 81, 82, 84, 85, 86 to 89, 91 to 99)”
In his crossexamination about incident of chain pulling, in
paras 14, 18, 20, 21, 22 and 25, it is stated as under:
“14 It is true that when chain pulling took place for
second time, the train had reached on Vadodara line. It is not
true that persons of the mob came from front side of the
engine. The witness states that they came from ‘A’ cabin side
i.e. from masjid. It did not happen that the mob may have
come from the direction of Vadodara side. I have seen the
masjid which I have mentioned. That masjid is situated in
backside direction of ‘A’ cabin at about 150 meter away in
somewhat Vadodara side. I do not know name of that masjid. I
do not know name of Single Faliya. It has not happened that
the mob might have come towards me. It happened that thePage 715 of 988
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persons of mob came from bushes. I do not know as to
whether other persons of the mob were present at the backside
of coach or not when the persons of mob came to me i.e. the
engine.
18 It is true that there were two machines for
creating vacuum in this engine of the train. It is true that there
are four types of brake system in the train like air brake,
vacuum brake, hand brake and emergency brake with the
guard. It is true that there are two types of PV exhausters i.e.
single and double. It is true that train can move even with a
single PV. It is true that if train in on single PV and if it is
taken to double PV, it is my say that the train may go little
further. It is not true that on taking it two double PV the
train can go up to 4 to 5 km. further. It is not true that if the
train is on single PV and if any risk is found to the train, the
engine driver can take the train up to 4 to 5 km. ahead from
that place by taking it on double PV. The witness states that it
depends on speed of the train at the relevant time and on the
geographical condition. As per my say, if the train is on single
PV at the speed of 90 to 100 and if it is taken to double PV, it
can go 4 to 5 km. further. It is not true that level of railway
track was flat at the place of incident. The witness states that
the track at that place is ascending. I cannot say as to how
high that ascent is. It is not true that there is no ascent at all in
railway track in this area.
20 At the stage, along with load, there is 53 cm.
vacuum in the engine of train. If you are saying that there is 58
cm. vacuum in train along with load, it is false. I do not have
exact information as to maximum how much vacuum can drop
from one ACP. As per my say, after reaching in any coach, it
may take about one minute to reset ACP. If vacuum is
dropped in middle coach of train, the assistant driver may
come from the cabin of driver or the guard may come from
his backside coach in the middle part, reset the ACP and
inform about the same after returning, it may take about 4
to 5 minutes to start the train.
21 It is true that there are two types of ACP. It is
true that in old ACP, vacuum was getting dropped on
pulling the chain. Whereas, in new ACP system, vacuum will
only get dropped, if one keeps on holding the chain after
pulling it. During the period of this incident, ACP systemPage 716 of 988
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which was in this train was old. New ACP system was about
15 years old. It is true that the driver who takes charge of
the train does not check ACP of each coach in the train.
22 It is true that when I was in the engine at the time
of incident, Chief Loco Inspector and his staff arrived there. It
is not true that the Chief Loco Inspector noted down my
statement at that time and took my signature in that
statement. It is true that earlier I have deposed before two
Commissions. It is true that Chief Loco Inspector of Godhra is
under Pratapnagar Divisional Electrical Engineer. It is not true
that when any incident takes place in the train, Chief Loco
Inspector or Divisional Electrical Engineer come to the spot
and take statements of concerned employees. I want to say
that on the day of incident the Chief Loco Inspector or
Divisional Electrical Inspector has not taken my statement or
statement of the assistant driver at all. I do not want to say
that the Railway Department has not taken my any statement
till date in connection with the incident. As per my say, on
28/2/2002 and 1/3/2002, Ratlam Divisional Electrical
Engineer conducted my interrogation regarding the incident. It
is true that my signature was taken below that statement. It is
true that I have not dictated in that statement that persons of
the mob arrived near the engine.
25 It is true that I have not dictated such fact in my
complaint that “‘All right’ was received with a flag in
connection with signal near from ASM of ‘A’ cabin and our
train may have gone about fourfive coaches ahead from ‘A’
cabin and it was found that vacuum drop took place in the
train. Considering the situation of stone pelting on the train, I
switched on double PV switch in the train and hence double
exhauster got started. Though there were 1000 amperes, 700
volts and 6 notches in the engine, our train stopped near
kilometer No.468/19.” It is true that I have not dictated such
fact in my any statement that “though there were 1000
amperes, 700 volts and 6 notches in the engine.” It is true that
I have not dictated such fact in my complaint that, “At this
time, a mob arrived near the engine. As I saw them coming,
doors and windows of the engine were shut for our protection.
This mob gave such warning that “Master, if you will get
down, you will be chopped (killed).” Thereafter, this mob
went towards backside of the engine i.e. towards the coaches. I
had seen deadly weapons like sword, gupti, sticks, etc. withPage 717 of 988
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the persons of this mob. I immediately informed about this to
Deputy S.S., Godhra through walkietalkie. Along with this, I
also informed to the guard of the train.” It is true that I have
not dictated such fact in my complaint or statements that “I
lifted window of the engine and saw towards the coaches that
the persons of mob were pelting on the coach. Persons of the
mob were trying to lift and damage windows of the coaches
with pipes, etc. which had been closed by the passengers.” It is
true that I have not dictated such fact in my complaint or
statement that “I again reminded the Deputy S.S. through
walkietalkie as to whether he has informed firebrigade or
not.” It is true that I have not dictated such fact in my
complaint or statement that “thereafter, I told the assistant
driver to unfasten coupling of the coach in which fire has
taken place. But he was giving excuses for doing so. Therefore,
I told him that you are an employee of railway, go with flag
and therefore you will not face any problem. The assistant
driver was seeking for a sign from me in order to loose the
coupling. So, I started the train and tried to take it little
backward. But, electric supply stopped suddenly at that time.
The assistant driver came to me and said that though I am
asking for a sign to unfasten the coupling, why don’t you do
so. Therefore, I told him that electric supply has stopped.” The
witness states that the assistant driver was told to unfasten the
coupling. It is true that I have not dictated such fact in my
complaint or statement that “I also informed that as electric
supply has stopped and as it is necessary to protect other
coaches from the fire, send a diesel engine.” It is true that I
have not dictated such fact in my complaint or statement that
“meanwhile, three to four police personals came towards
engine and told me that come to Godhra Railway Station and
inform about the incident.” It is true that I have not dictated
such fact in my complaint or statement that “thereafter, I came
towards the engine within some time. Officers of Railway told
me that electric supply will be restored in some time and
hence you remain present in the engine. Thereafter, I made
pressure to start the engine. Instruction was received from
railway officer that electric supply has been restored and lift
“pento” of the engine. Therefore, I lifted “pento” of the engine
so that it touched with the wire of electricity.” It is true that I
have not dictated such fact in my complaint or statement that
“I performed the work of centering with the help of walkie
talkie after closing the windows of the engine.” It is true that I
have not dictated such fact in my complaint or statement thatPage 718 of 988
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“thereafter, at about 5 6 hours, police personals took me in
the yard where 58 dead bodies were lying near coach covered
with cloth.” The witness states that I dictated that I saw 58
dead bodies. It is true that I have not dictated such fact in
my complaint or statement that “when I asked as to how
vacuum was created, assistant Ravindra Kushvah who was
in the lobby of station and employees of carriage
department told that as two hose pipes have torn, they have
been changed.” It is true that today for the first time I am
stating in the court about the fact of changing hose pipe. It is
not true that I did not see any incident at all but I am giving a
false deposition at the instance of the police.
Crossexamination for accused persons. Ld. Adv. Mr. L. R.
Pathan is not present.
(Accused No. 7, 9, 14, 17, 36, 55, 60, 66)
No crossexamination.
No reexamination.”
6 Harimohan Fulsing Meena, PW126 who was Assistant
Station Master, in paras 2 and 3 of his examination in chief has stated as
under:
“2 On 27/2/2002, I was present on my duty in my
office at Godhra Railway Station at 00.00 hours. Deputy
Station Superintendent Mr. Y. M. Saiyed was also present on
duty with me. In the meantime, Sabarmati Express train having
no. 9166 arrived at 7.42 hours in the morning from Dahod to
Godhra Railway Station on platform no.1 and it halted. At 7.48
hours as Saiyed Sir informed the Asst. Station Master of ‘A’
Cabin over telephone to give signal, signal was given for
departure of this train. Therefore, this train departed towards
Vadodara. Thereafter, as the driver of the engine blew whistle
suddenly, we came to know that there was chain pulling in the
train. Therefore, Saiyed Sir asked me to go to the train and
find out as to in which coach the chain pulling has been done.
Therefore, I went towards this train. On seeing, it was found
that some part of the train was ahead of platform and chain
pulling was done in three to four coaches of this train. I foundPage 719 of 988
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that chain pulling had been done in the rear coaches of the
train. I informed the numbers of the coaches, in which chain
pulling had been done, to Saiyed Sir. As the chain pulling was
done in the train, Saiyed Sir informed the staff of RPF and GRP
and dispatched them towards that side. The train departed
after some time.
3 During the period at about quarter to eight
o’clock, again chain pulling was done. At that time Mr. R. P.
Mina, Assistant Station Master of ‘A’ Cabin and guard of the
train informed over walkie talkie that chain pulling has been
done in the train near ‘A’ Cabin. There was crowd on the off
side at that time. Now I state that the crowed was towards ‘A’
Cabin. They also stated that these people are pelting stones
and coach no. S/6 has been set on fire. At that time, I informed
this fact to the Station Superintendent Mr. Katija and stated to
inform fire brigade and police control. As Saiyed Sir asked me
at that time to go towards the coach, which was set on fire, I
went. After reaching there, I noted down the number of the
coach, which was set on fire, and thereafter I returned to my
office. At this time as the duty time of Saiyed Sir was over and
as Mr. Sujela was on duty on his place, I informed the coach
number which was set on fire. The police recorded my
statement regarding the action taken by me. Charge register is
maintained at my office that means the office of A.S.M.,
wherein entries are made about the important incident taking
place on the station or important incident concerned to our
office. I made short entry in my handwriting in the Charge
Book Register regarding the incident of the Sabarmati Express
train having no. 9166 taken place on 27/2/2002. When the
police recorded my statement, I had produced a copy of the
entry which I had made in the ChargeBook Register. I am
shown the register of Muddamal No. 33/09 Article no.3 ,
wherein there are total 1 to 95 pages. Out of the same, I am
shown the entry on Page no.93. It is written in my handwriting
and the fact written therein is true. I have made my signature
at the end of the writeup and I identify the same. Page no. 93
is given Exhibit743″.
In his crossexamination it is important to refer to paras 6, 7 and 8
in which the above witness confirms departure of train at 7:55 and Mr.
R.P.Meena, PW127, Assistant Station Master A Cabin and Guard, PW
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135 of the train gave the message over walkie talkie after 3 minutes and
it was informed in that message that fire has been set in coach S6. As
per the above testimony it comes on record about fire in coach S6,
arrival of fire brigade from the pond side and second chain pulling was
done for the first time, the above witness was as to what slogans were
shouted by whom and who were pelting stones from which place.
However,r the above witness is unable to state that who and how the
chain pulling, that was done in S6 near A cabin.
7 Rajendraprasad Mishrilal Meena, who was working as
Traffic Inspector, Dakor Head quarters – Godhra, PW127, in paras 2,
3 and 4 of his examination in chief stated as under:
“2 Sabarmati Express train arrived on platform no.1
of the Godhra Railway Station at 7.43 hours in the morning on
27/2/2002. As this train was going towards Vadodara, I
ascertained as to whether the line is clear on the first railway
station towards Vadodara that means Kharsaliya Railway
Station and line was clear. Therefore, I asked Akhilkumar
Sharma working with me at 7.45 o’clock to give signal.
Therefore, Mr. Sharma gave signal to Sabarmati Express train
to start. Therefore, this train started and within one or two
minutes, I had heard the whistles of chain pulling. Thereafter,
the train halted. I informed the Deputy Station Superintendent
regarding this and stated the whistle for chain pulling has been
blown. Thereafter, this train started again at 7.55 o’clock. After
moving little ahead, chain pulling whistles were blown again
and during this time eight to ten coaches had passed from ‘A’
Cabin. As I came to know about the chain pulling in this train,
I came down from my office to shut down the chain pulling. In
the meantime, I saw that a mob consisting about 300 to 400
persons was coming along with the train from station side. As
this mob was coming near to ‘A’ Cabin, I climbed up ‘A’ Cabin
due to fear of them and the people of this mob started pelting
stones on the train. The people of this mob were also armed
with sticks and they were hitting those sticks on the coaches. I
also saw the marks of stones appeared on the coaches due to
hitting of stones. I gave instruction to the passengers of thePage 721 of 988
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opposite coaches to close windows so that they are not hit by
stones and sticks. Thereafter, I saw that smoke was coming out
from a coach which was at the front side of the place where I
was standing that means the coach towards Vadodara side.
Therefore, I informed the Deputy Station Superintendent that
smoke is coming out from the train and stones are pelted on
the train. There was fire in the coach from which smoke was
coming out. As more flames of fire appeared from the coach, I
informed the Traction Power at Vadodara to stop electric
supply of the line. In the meantime, GRP and RPF staff arrived
from the railway station. This police staff did lathicharge on
this mob and the people of the mob started running. At this
time, the Railway Officers and fire brigade had also arrived
and they put off the fire in the coach.
3 On examining about the coach on fire, it was
found that it was coach no. S/6. As there was fire in the coach
of train, this train was taken ahead and then it was taken on
line no. 10 and thereafter, the train was taken to Railway Yard
where two coaches were separated and the train was again
brought on line no.10 and thereafter, the coaches of the train
were connected and the passengers of the train got into the
train. Thereafter, at about 12.40 hours, this train departed
towards Vadodara. When the shunting work of the train was
going on, some of our officers were present there and a mob
was present little far from there. I do not know as to what the
police did at that time. When the police did lathicharge for the
first time, there was stampede and as that stampede took place
at the place about three coaches ahead of Cabin, I do not know
as to what actually happened over there.
4 M. R. no. 33/09 Article no. 7 is the workload
booklet of ‘A’ Cabin, Godhra. There are total 1 to 94 pages
serial number wise in this register. After seeing the entry
made therein on Page no. 91, I state that this entry has been
made in my handwriting and the fact written therein is true.
There is my signature at the end of the writeup, which I
identify. Underneath my this signature, Harvindarsing, Station
Master, has made signature, which I identify. Page no.91 of
this register is given Exhibit745. I am shown the register of
M.R. no. 33/09 Article no.6, the Train Signal Register (TRS),
wherein page no. 1 to 99 are there at present. On seeing the
entry dated 27/2/2002 on Page no. 22 and 23 thereof, I state
that it is in my handwriting and the fact written therein is true.
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I have made my short signature against each entry therein,
which I identify. The fifth entry on left side of page no. 23 is
made regarding Sabarmati Express Train dated 27/2/2002.
The same is made in my handwriting. Page no. 22 and 23 of
this register are given Joint Exhibit no. 746. The police
inquired to me whatever I had seen of the incident and
whatever work done my me and my statements were recorded
on 1/3/2002 and 4/5/2005 and the fact written therein is
true”.
The above witness confirms stoppage of Sabarmati train
within 1 or 2 minutes after the departure and again around 7:55 hours,
the train started and after moving little ahead, chain pulling whistle was
blown and by that time 8 to 10 coaches had passed from A cabin. In the
meanwhile, he saw a mob consisting of 300 to 400 persons was coming
along with the train from station side and he climbed up ‘A’ Cabin due to
fear of mob as the mob started pelting stones on the train and they were
armed with sticks and they were hitting those sticks on the coaches. He,
therefore, instructed passengers to close windows and informed Deputy
Station Superintendent that smoke is coming out from the train and
stones are pelted on the train. Besides, there was also fire in the coach
from which smoke was coming out and as more flames of fire appeared
from the coach he informed the Traction Power at Vadodara to stop
electric supply of the line. In the meantime, GRP and RPF staff arrived
and upon resorting to lathi charge, the mob started disappeared.
Likewise, arrival of fire brigade immediately was also taken note by this
witness. In paras 6 to 8 of the crossexamination, the above witness
reiterates what is stated in examination in chief and for ready reference,
paras 6, 7 and 8 are reproduced herein below:
“6 It is true that when the chain pulling was done second
time, I had got down from the cabin but on seeing the mob,
I climbed up back to the cabin due to fear. It is true thatPage 723 of 988
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after going back to cabin in such manner, I asked
Akhilkumar working with me to close the windows of the
cabin. It is not true that I also told to close the doors of the
cabin. It is true that I have dictated in my police statement
dated 4/5/2002 that “I was very much frightened, therefore,
immediately I went up the staircase of ‘A’ Cabin and after
reaching into the cabin, I told Akhilkumar Sharma to close
the doors of the cabin and windows of all four side.” The
police did not make any of my inquiry on 27/2/2002 after
the incident. Our Railway Traffic Inspector inquired to me on
that day in connection with the incident. I was called to G.R.P.
Office on 1/3/2002 to record my statement and as it was asked
to me at that time as to when the fire fighter arrived, I
informed them that fire fighter arrived at 9.30 o’clock. The
police had also asked me at that time as to when the fire was
extinguished by the fire fighter. It is true that I informed them
that the staff of fire brigade had extinguished the fire at about
ten o’clock. It is true that the staff of fire brigade extinguished
the fire while coming on the off side of the train. Track no. 10
is located in the yard.
Crossexamination for the accused persons by Ld. Adv. Mr. Y.
A. Charkha[Accused no. 16, 32 to 35, 44, 45, 49, 50, 62, 72,73, 76]
7 It is true that after reaching little ahead of ‘A’ Cabin, the
railway track takes turn and heads towards Vadodara. It is true
that the culvert located behind the ‘A’ Cabin starts from the
underpass situated towards platform and it goes ahead while
passing from near ‘A’ Cabin. It is true that there is no space
between ‘A’ Cabin and the underpass. It is true that at the time
of the incident, there were thorny babool trees in the area
located behind the cabin after the culvert. The witness states
that those were small. I am not able to state that these babool
tress were so dense that no person can pass therefrom. I am
not able to state that the culvert located behind the cabin is
such deep that no person can come to the cabin or the track
therefrom. The witness states that I have not seen anyone
passing from there.
8 It is true that the persons of GRP and RPF arrived after
the fire fighter had arrived. It is true that I have dictated in
my police statement dated 4/5/2002 that “coach was set onPage 724 of 988
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fire and thereafter police RPF arrived.” It is true that I have
dictated in my police statement dated 1/3/2002 that “I have
come to know from hearsay that altercation took place
between the karsevaks and tea stall owners on the railway
platform and stone pelting was done.” It is true that I have
not dictated in my police statement that “in the meantime, I
saw that a mob consisting 300 to 400 persons coming with
the train from the station side.” The witness states that I
have dictated in my police statement dated 1/3/2002 that
“mobs consisting about 200, 500 persons rushed towards
train from the rear part of train and from surroundings and
started pelting stones at the train”. I have also dictated the
same in my statement dated 4/5/2002″.
8 Akhilkumar Guljarilal Sharma, Station Master, PW128 in
paras 2, 4, 5 and 6 deposed as under:
“2 On 27/2/2002, Sabarmati Express train arrived at
Godhra Railway Station at 7.43 o’clock in the morning and as
this train was given signal at 7.45 to depart towards Vadodara,
the train started from the railway station at 7.48 o’clock. Soon
after the train started, as there was chain pulling, the train
stopped. Thereafter, the train started again at 7.55 hours and
as there was chain pulling again, the train stopped near cabin
after going little ahead of ‘A’ Cabin. Therefore, Mina Sir got
down from ‘A’ Cabin. Mr. Mina went towards the coaches to
repair the chain pulling, but as a mob arrived from opposite
side, he came back on ‘A’ Cabin. There were about 500
persons in the mob. The people of this mob were running
and pelting stones at the train. The persons of this mob
were armed with stones, sticks and rods etc. The stone
pelting continued for a long time and Mina Sir stated that
smoke is coming out from a coach of train and it is set on
fire. When I also saw, smoke was coming out from a coach
and the coach was on fire. As stones were pelted on the
coach of train and it was on fire, Mr. Mina informed Deputy
Station Superintendent Mr. Saiyed on Godhra Railway
Station over phone and asked to send fire brigade to
extinguish the fire. Therefore, police persons arrived over
there and tried to disperse the mob. Police detained some
persons running from the mob at that time. As fire brigade
arrived after some time, the fire was extinguished and the trainPage 725 of 988
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was taken on line no.10. The coaches that were on fire were
taken to yard from line no.10 and the train was again brought
on line no.10 and thereafter, the rear coaches were joined
again. After the passengers got into this train, at about 12.40
hours this train departed towards Vadodara. As the
information of the incident was received, our railway officers
also arrived at the place of occurrence. The police inquired to
me regarding the incident and I dictated in my statements
dated 1/3/2002 and 4/5/2002 whatever I had seen and
whatever had taken place.
Crossexamination for the accused by Ld. Adv. Mr. A. A. Hasan
[Accused no. 1 to 6, 10, 13, 18, 22, 24, 31, 37, 38, 41, 42, 43,
47, 51 to 54, 58, 59, 61, 63, 65, 67, 69, 74, 75, 77 to 79, 81,
84 to 100]4 It is true that message was received on 26/2/2002 at
11.30 hours at night that Sabarmati Express train going from
Ahmedabad to Ayodhya was arriving and I gave information
regarding this to the Deputy Station Master and employee on
duty at ‘B’ Cabin. It is true that on 27/2/2002, a message was
received from ‘B’ Cabin that Sabarmati Express train was
coming from Ayodhya side to Godhra Railway Station at 7.43
hours and Mr. Mina on duty with me made entry in the
concerned register regarding the same. It is true that the duty
hours of Mr. Mina and me were getting over at 8.00 o’clock in
the morning on 27/2/2002. Other employees Mr.
Harvindarsing and Mr. R. K. Varma were to report on duty at
our place.
5 When Sabarmati Express train departed from Godhra
Railway Station to go towards Vadodara, no message was
received at ‘A’ Cabin from the station. I had to give signal from
‘A’ Cabin to allow the train to go ahead from the platform. It is
not true that entry has to be made in the concerned register at
‘A’ Cabin for giving signal in such a way. The witness states
that entry of departure time is made when the train departs
from the platform. It is true that when this train started from
the platform of Godhra Railway Station, Mina Sir and I were
sitting at the first floor of ‘A’ Cabin. It is true that in cases of
chain pulling after the departure of the train from platform,
the engine driver first blows two short whistles and then
one long whistle. It is true that after the duty gets over in ‘A’Page 726 of 988
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Cabin, when the other employee or officer reports on duty,
the handing over of charge is done in writing. It is true that
when the whistle of chain pulling was heard, the duty time
of me and Mina Sir were about to get over. It is not true that
only one minute was left for getting the duty time over
when the whistle was heard. The witness states that my duty
time was till 8.30 o’clock because half an hour is taken to
handover the charge. It is true that I have not dictated in
any of my police statement that after the duty time is over,
one has to remain on duty for half an hour more to
handover the charge. It is not true that on hearing the whistle
after Mr. Mina got down some steps of the staircase of the
cabin, he immediately came back to the cabin. The witness
states that after getting down from the cabin, he went to
check about the chain pulling near the coaches of the train
and thereafter, he returned to the cabin.
6 It is true that I have dictated in my police statement
dated 4/5/2002 that “the driver started to blow whistles for
chain pulling and when Rajendrasing Mina began to get
down by the staircase of ‘A’ Cabin to check as to why the
chain pulling has been done, on seeing the mob coming
towards the train, he immediately climbed up the cabin.” It
is true that after returning into the cabin, Mr. Mina told me
to close the doors and windows of the cabin immediately. It
is true that when I was closing the doors and windows, I
was stunned to see the condition outside and I was
frightened. It is true that I did not get down from the cabin
even after the incident. It is not true that I have not dictated
in my police statement that “therefore, the police persons
arrived over there and tried to disperse the mob. At that
time the police detained some persons running from the
mob.” It is true that I am not able to state the exact number
as to how many persons the police detained from the mob. I
am also not able to state exactly as to how many police
persons were present there at that time. I had seen police
running after the mob. The police ran after the mob towards
Singal Faliya. It is true that the area of Singal Faliya is
towards the lower part from the cabin. I do not know as to
whether the police that ran towards the mob, were armed
with guns. I saw the persons whom the police detained from
the mob and as per my say, they were detained by the police
near the slope towards Singal Faliya. I am not able to state as
to how many persons were there in the mob near the slope,Page 727 of 988
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when the police detained persons from the mob in this way. I
have not seen any such thing that the persons detained by the
police were tied with rope or in any other manner. I heard the
sound of police firing. I heard the said sound at eleven o’clock.
Now I state that the said firing was done from the staircase of
‘A’ Cabin. At that time the direction of the gun was towards
Singal Faliya. I do not know as to whether I have dictated in
my police statement that after this firing, the police detained
persons from the mob”.
As per this witness stone pelting, chain pulling on two
occasions, members of violent mob attacking the coach, police resorting
to lathi charge and statement recorded by police on 01.03.2002 are
admitted. Even this witness also confirms arrival of RPF and other
forces and thereafter mob had disbursed. In his crossexamination in
paras 12 and 13 deposed as under:
“12 When the train stopped near ‘A’ Cabin at the time of the
incident, 810 coaches of the train had crossed towards
Vadodara ahead of ‘A’ Cabin. I do not know as to at which
number the coach, which was on ablaze, was from the engine.
I have stated the fact in examinationinchief that after the
train arrived and stopped near ‘A’ Cabin, Mr. Mina working
with me got down from the cabin and went down; this Mr.
Mina did not go till the coach in which chain pulling was done,
but after getting down from the cabin, he went to the nearby
coach and returned immediately. It is true that at that time
there was distance of about ten to fifteen feet between the
cabin and the nearby coach of the train.
13 As per my say, after the duty is over I have to inform the
facts to the other employee reporting on duty as to which
trains have passed, which is late, which tracks are vacant and
as to on which track there is train etc. Other than this, I have
to inform if any system failure has taken place or any unusual
fact has occurred. Written note of all such things are made in
concerned record. It is true that the employee reporting on
duty can also come to know about all these above matter from
the entries made in the registers. We have to maintain charge
book. The charge book of 27/2/2002 was seized at thePage 728 of 988
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respective time. I state after seeing Exhibit743 that such type
of charge book is maintained. The witness states that my
charge book is separate. As per my say, there is separate
charge book for each employee who was performing duty in ‘A’
Cabin. Now I state that there is separate charge book for each
table. It is not true that I have to make the same type of entry
in the charge book, which is made in Exhibit743. It is not true
that I am falsely stating the fact that after the duty time is
over, we have to stay back in the office for half an hour to
handover the charge”.
In the above testimonies the witnesses has stood by his version
before police as well as in examination in chief and the charge book of
27.02.2002.
9 Mukesh Raghuvirprasas Panchori, Assistant Driver of
Sabarmati Express, Loco Pilot, Ratlam, PW131, in examination in
chief, in para 3 stated about arrival of train around 7:40 am on
27.02.2002 at Godhra Railway Station and after halt for about 5 minutes
a signal was received to start at 7:45 am and the train departed towards
Vadodara. That first chain pulling was done just after the train went 3
to 4 coaches and the driver Rajendrarao Raghunathrao Jadav, PW228,
blew whistle for chain pulling and informed the guard, PW135 on
walkietalkie about chain pulling and instructed this witness to reset
ACP and accordingly he went to the rear part of the train and found
chain pulling was done in 4 coaches, it was reset and returned to the
engine and thereafter the train restarted around 7:57 am. The train
went little ahead as it passed ahead of A Cabin and it stopped due to
reduction of vacuum and the driver informed the Deputy Superintendent
of Godhra Railway Station over walkie talkie about same. In paras 4
and 5 further description was given, which read as under:
“4 After we went little ahead that means as we passed
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ahead of ‘A’ Cabin, the train stopped due to reduction of
vacuum. As the train stopped in this manner, the driver
informed the Deputy Station Superintendent of Godhra
Railway Station over walkietalkie. At this time the train was
standing on a turning. As the train stopped, stone pelting
started on the train within some time. A mob consisting about
800 to 1000 people was pelting stones in this manner. Stones
were pelted at the train by climbing up the metal heap which
was near ‘A’ Cabin. The persons of this mob were armed with
weapons such a sticks, sword, gupti etc. When the train
stopped, as I was getting down from the engine to reset the
ACP, they were saying that “master get back, otherwise you
will be killed”. As these persons pelted stones at engine, I
closed the door of the engine and I did not get down. When
the people of the mob stated in this manner, I got frightened
and due to that reason I did not get down. The driver
informed the Deputy Station Superintendent of Godhra
Railway Station over walkietalkie and asked to send police
force. Smoke was seen coming out from rear side after some
time. Therefore, the driver again informed the Deputy
Station Superintendent over walkietalkie to send medical
van and fire brigade. At about 8.30 o’clock, the staff of GRP
and RPF arrived and they dispersed the people of mob.
Thereafter, the driver gave instruction to me and Mr. Vora,
Assistant Driver of dead engine, to take fire extinguisher and
go to the coach which was set ablaze and extinguish the fire.
Therefore, Faruk Vora and I took about six fire extinguishers,
which we had and started attempts to put off the fire in the
coach. But as the coach was engulfed with fire, despite using
these fire extinguisher, the fire could not be controlled.
Thereafter, we returned to the engine with the empty fire
extinguishers. At that time the driver gave instruction to
separate the coach by cutting so that the other coaches do not
catch fire also. Therefore, I went towards the coach which
was on fire and I tried to get coupling, but as the driver did
not give the same, I went towards the driver and asked as to
why he was not giving coupling. Therefore, the driver
informed that electric supply has been stopped. In the
meantime, fire brigade had also arrived. They started the
work of extinguishing the fire. The electric supply started at
about 10.00 to 10.05 o’clock. Therefore, we started the
shunting work of the train. We took the train forward to do
shunting and after crossing the line, the train was brought on
line no.10 and at that time the persons of staff started to workPage 730 of 988
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of cutting the coaches. After cutting the coaches in this
manner, the train was taken to the yard along with the coach
which was on fire. Two coaches were cut there. The coach,
which was on fire, was S/6. After separating two coaches in
this manner, the train was brought on line no.10 and the
coaches lying at that place were joined with this train.
5 Second time that mean when the working of shunting
was going on, a mob consisting many people was there and
they started pelting stones from the opposite side of the
cabin. The police fired at this time. As the train was ready,
the charge of the train was given to driver R. C. Lodha.
Driver Rajendrarao lodged complaint regarding this
incident. The police recorded my statement regarding
whatever I had seen after inquiring to me. A diary is given to
the driver in our train, which is known as driver diary that
means L66. I am shown the document having Mark28/2
and I state after seeing the same that it is the entry
regarding the engine no. 20432 and 20632 dated 27/2/2002
of the driver notebook – L66 maintained in our engine. This
notebook is maintained by the assistant drivers. The entry
time that is written in this notebook dated 27/2/2002, is
written in my handwriting and all the fact written therein is
true. Whatever entry is made in this notebook dated
27/2/2002, is made in my handwriting. At the end of the
writeup, the seal of the designation of “Station Superintendent
Western Railway Godhra” is affixed and he has also made
signature thereat. The xerox copy of the concerned page of
diary of Mark 28/2 is given Exhibit761 with the consent of
the advocate for the Defence. My first statement in
connection with the incident was recorded on 27/2/2002.
Thereafter, my statements were recorded on March2002
and April2002″.
In his crossexamination, the above witness in paras 6 and 7
confirms to have made statement on 27.02.2002 before police around
9:00 am. However, the witness denies to have dictated in police station
dated 27.02.2002 about lathi charge was done to disburse the mob and
ten tear gas shells were busted. He further denies to have stated about
violent mob pelting more stones and that when he saw the coach of the
train completely burnt due to fire and burning bodies were seen lying
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one upon other. However, in cross examination in paras 10, 11 and 12,
the above witness admitted that in his statement recorded on
27.02.2002 he had stated that fire in the coach was extinguished and
when the chain pulling was done first time he came to the left side of
engine from left side and had not looked towards signal falia. That
significant version comes in para 12 of the crossexamination in which it
is admitted that when chain pulling was done in second time, the front
portion of the train was on the turning leading towards Vadodara and
that it is true that at that time the coach, which was on fire, was after
eight coaches after the engine. That para 15 of the crossexamination of
the above witness is reproduced herein below in which the above
witness did not deny to have made statement before the police that
members of mob pelted stones on the train by climbing up on metal
heap and he was threatened by the mob not to get down from the train.
Para 15 of crossexamination of the above witness reads as under:
“15 It is true that I have not dictated in any of my three
statements that “at this time the train was standing on a
turning.” It is not true that I have not dictated in my police
statement that the people of mob pelted stones at the train
by “climbing up the metal heap”. All three of my statements
have been recorded in Gujarati and therefore, I myself cannot
read the same. It is not true that I have not dictated in my
police statement that “while I was getting down from the
engine, they were saying that master get back otherwise you
will be killed. As these persons pelted stones at engine, I closed
the door of the engine and I did not get down. When the
people of the mob stated in this manner, I got frightened and
due to that reason, I did not get down.” It is not true that I
have not dictated in my police statement that “smoke was seen
on rear part after some time.” It is not true that I have not
dictated in any of my police statements that “At that time the
driver gave instruction to separate the coach by cutting so that
the other coaches also do not catch fire. Therefore, I went
towards the coach which was on fire and I tried to get
coupling, but as the driver did not give the same, I wentPage 732 of 988
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towards the driver and asked as to why he was not giving
coupling.” It is true that I have not dictated in my police
statement that ” the coach which was set ablaze was S/6.” It is
not true that I have not dictated in my police statement that
“when the work of shunting was going on, a mob consisting
many people was present and they were pelting stones from
the opposite side of cabin.” It is true that from the time I went
towards the coaches to separate the coaches which were on
fire till I returned from there, the driver was alone in the front
engine. It is true that there was no electric supply in the train
from 9.00 to 10.00 hours. It is not true that I have not seen any
incident as stated in examinationinchief and I am giving false
deposition at the behest of the police. It is not true that the
driver with me did not leave the train and go anywhere till
10.00 o’clock in the morning”.
In paras 16 and 17, it is stated as under, which include his
position as an Assistant Driver of the engine and possibility of getting
down from the right side of the engine in a case of chain pulling and
resetting the disc and can return to engine from the right side itself.
“16 It is true that the engine of the train was running with
electric power. It is true that such type of engines have cabin in
front part. It is true that there is such passage in the rear part
of cabin on the both side of machine for movement. There are
only two employees in the engine – driver and assistant driver.
It is fixed as to in which part of the engine the driver and the
assistant driver has to perform duty. It is true that the assistant
driver has to perform duty on the right side in engine. It is true
that there is also a door to get down in the right side from the
engine and the assistant driver can get down on right side from
that door. It is true that in cases of chain pulling, one can get
down from the right side of the engine and reset the disk and
can return to engine from the right side itself. It is true that if
there is chain pulling on the way, it is not necessary for the
assistant driver to get down from the left side to go to the
concerned coach to do resetting. It is true that if the coach, in
which chain pulling has been done in this manner, has come
out of the platform, then it is not necessary for me to get down
from the left side of the engine to reach near the coach for re
set work.
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17 There are two reasons for drop in vacuum. One of
which is chain pulling and the other is separation of hose
pipe. It is not true that when chain pulling is done in a
coach, the train goes little ahead from the place where the
chain pulling is done and stops. I am not able to state that
coach no. S/6 was not included in the four coaches in which
the chain pulling was done for the first time. It is true that
it has not happened that the train stopped for the second
time due to chain pulling. The witness states that as the
vacuum dropped excessively, it was not a case of chain
pulling. It is true that I did not examine as to from where
the vacuum level dropped at the second time. It is true that
the vacuum can drop sometimes if the vacuum pipe gets
opened accidentally.
The above witness further stated two reasons for dropping
of the vacuum.
10 Satyanaranan Panchuram Verma, Guard, PW135, in para
2 described timings of arrival of the train at Godhra Railway Station and
there were total 18 coaches and that included reservation coaches from
S1 to S10, 6 general coaches and 2 SLR. In para 3 of examination in
chief, the above witness stated as under:
“3 As the train departed from Godhra Railway station and
went two to three coaches ahead, the train stopped due to
chain pulling. As the chain was pulled, I got down and as the
chain pulling was done in front four to five coaches, I reset the
chain pulling. At the relevant time, Assistant driver also came
from the engine to reset chain pulling. As Assistant driver
reached to the engine, I blew the whistle to start the train.
Thereafter, the train started again at 800 hours and the train
stopped again at 805 hours after going ahead. At the relevant
time, the compartment of a guard stopped near the pole
whereon 468/45 km was written. As the train stopped, the
driver sent me a message through walkie talkie regarding
chain pulling and stone pelting and as I saw, this stone pelting
was done from on side i.e. from platform side. Therefore, I
informed Deputy Railway Station Superintendent of GodhraPage 734 of 988
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Railway Station through walkie talkie set and told him to send
GRP and RPF personnel. On account of stone pelting, I sat
inside after closing door and window of my coach. Due to
stone pelting, the stone hit the glass window of my
compartment and it broke and therefore I closed the second
window. After sometime, the driver stated me through walkie
talkie that the mob has attempted to torch and they have also
torched. Therefore, I informed Deputy Station Superintendent
through walkie talkie set regarding this and told him to send
firebrigade. GRP and RPF personnel arrived within short time
and firebrigade also arrived. On account of stone pelting on
train, I got afraid and sat down after closing the door. But, due
to firing, I opened ofside door and got down. As I saw, public
was going by making shouts. I went towards the coach which
was torched and instructed passengers to get down from train
on account of fire in the train. At the relevant time, when I
went towards the coaches, fire brigade personnel were
functioning to put out the fire. At the relevant time, TXR staff
personnel were also attempting to separate the coach. Then, I
came to my coach and applied hand brake and put wooden
obstacle below the wheel. As the fire was doused in the coach
and the train was to be taken in a yard, I released hand brake
and wooden obstacle was removed from below the wheel.
After shunting the train, the train was taken on Line Number
10 and then, after taking the train in a yard, coach no. S/5 and
S/6 were separated. The persons of the mob assaulting on
the train were of Muslim community. I am being shown
extract of guard book at Mark28/5. Viewing the same, I
state that the time and other entries made therein are in my
handwriting and the facts written therein are true. There is
my signature at the end of the writing therein and I identify
the same, It is produced at Mark28/5 and it is given Exhibit
778. Police interrogated me in connection with the incident
and recorded my first statement on 27/2/2002. Then, after ten
days i.e. two statements were recorded on 9/3/2002 and
thereafter, my statement was recorded on 11/2/2005.
Cross examination by Ld. Advocate Shri A.A.Hasan for the
accused persons[Accused No. 1 to 3, 5, 18, 22, 24, 31, 37, 41, 43, 47, 53, 63,
65, 67, 74, 77, 90,100]
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Cross examination
by Ld. Advocate Shri Y.A.Charkha
for the accused persons,
Shri A.A.Hasan by a transfer letter.
[Accused No. 16, 32 to 35, 44, 45,
49, 50, 62, 72, 73, 76]4 The entries made in Exhibit778 by me has been done on
the day of incident after 1230 hours at noon. It is not true that
firstly I gave the copy of Exhibit778 on 9/3/2002 when my
statement was recorded. It is true that on the day of incident,
when the train departed from Godhra Railway station to
Vadodara at 1230 hours at noon, I handed over my charge to
another guard. It is true that the driver of the train also handed
over his charge to another driver. It is true that the driver and I
stayed in Godhra thereafter. It is not true that the driver and I
went to GRP/RPF office to lodge FIR thereafter. It is true that
it is noted in Exhibit778 that, “Thereafter we went to GRP
office to lodge FIR.” The witness states that the entry is not
proper that the driver and I went together. It is true that police
recored my three statements after the incident. It is true that
on 16/7/2002, police recored my statement on oath. It is true
that I have neither clarified in my three police statements nor
in the statement recored on 16/7/2002 that the fact entered in
my note that the driver and I went together, is not proper.
(Note : At this stage, Special Public Prosecutor Shri Panchal
has stated by drawing attention to section6 of Commissions of
Inquiry that the witness can not be asked any question
regarding contradiction or addition or alteration during cross
examination or the same may be noted in connection with the
statement recored before commission. After hearing both
parties regarding his this objection, adjourned for decision.) I
got my statement recorded by police in March2002 after
understanding the same. It is true that when my statement was
recorded in March2002, I handed over my note to police.
Now, I state that I do not remember as to when I handed over
the said note. It is true that I dictated two different timings in
my police statement after viewing the note that I had. It is true
that I have not explained anywhere or in my police statement
that it has been falsely entered in my note that after making
note, I went to GRP office to lodge FIR. It is true that I
voluntarily got my statement recorded to Nanavati Commission
without any type of pressure. It is not true that the fact notedPage 736 of 988
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in my note that the driver and I went to lodge FIR and
explanation made in cross examination in that regard has been
falsely explained at the instance of someone else. It is not true
that I have made contrary explanation today to conceal
regarding the wrong committed by police in noting the time of
FIR and to be helpful to police”.
In crossexamination, the above witness in para 7 stated as
under:
“7 When the train stopped for the second time, my
compartment of a guard was prior to a culvert that is
towards Godhra Platform. It is true that it can not be seen
from the compartment of a guard as to what happens at a
part ahead ‘A’. On account of stone pelting, I had sat in my
coach for about 20 to 25 minutes after closing its doors and
windows. Thereafter, as I heard sound of firing, I saw
outside after opening onside door. It is true that as I saw,
the persons of a mob were running at that time. After seeing
this, I immediately got down on ofside from ofside door.
It is true that thereafter, when I was going to the coach
which had caught fire, I went stating to passengers of all
coaches that, “Get down as the coach has caught fire.” No
passengers were coming towards Godhra Railway Station
from towards the coach which had caught fire. The witness
states that they were going towards ofside road. It is true
that when I reached near the coach which had caught fire,
firebrigade personnel started to put out the fire of the said
coach”.
In para 9 of the crossexamination, the above witness
confirms that when the train halted again, his compartment was near the
pole whereon 468/45 km was written and there was a distance of 75
meters between two electric poles. It is admitted that when the train
stopped for second time, the train engine moved towards Vadodara at a
turning point. In para 10, the above witness denies to have stated before
the police that that as a glass window of his compartment broke down
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due to stone pelting he closed another window. In para 11 it is stated
about Exh.778 and the said note was returned by him. It was a copy of
register. Crossexamination of the above witness in para 11 read as
under:
“11 It is true that “copy by S.N.Verma” written at the end of
Exhibit778 on right side is proper. I have made the said note
myself. According to this note of mine, this is not an original
register, but a copy. According to me, the original register may
be in Railway Board. It is not true that while making this copy,
it came to my notice that there is a note therein, “Thereafter
went to GRP office to lodge FIR.” It is true that there is an
entry therein thereafter that, “Station Superintendent relieved
us at 2000 hours.” My compartment of a guard is called SLR.
It is true that there is restriction that any person or a passenger
except guard can sit in the compartment of a guard”.
While crossexamining Rajendraprasad Raghunathrao Jadav,
Engine Driver of Sabarmati Express, PW228, learned counsel for the
defence has no doubt succeeded in bringing out omissions found in
the complaint, but the fact remains that the complaint is an
information given about disclosing cognizable offence and though it
is a brief statement, but contains narration of the crime which took
place on 27.02.2002. As held by the Apex Court in many decisions that
what is stated in the complaint cannot have mathematical exactitude
and precise version, but what was witnessed by this PW viz. magnitude
of crime was disclosed to the investigating officer at various stages which
finds corroboration from other PWs and, therefore, such omissions are
not vital touching to the core of the case of the prosecution.
All the above witnesses are Railway employees and in true sense
their testimonies reflect the manner in which incident of stone pelting,
throwing burning rags, acid bulbs, causing damage to coaches of the
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train by usage of weapons and even setting the train on fire. They are
independent, uninfluenced and had no animosity against anyone to
falsely implicate and it is borne out from their testimonies that members
of violent mob constituting unlawful assembly made violent attack on
the train and passengers. They are, in fact, credible, trustworthy,
inspiring confidence and, therefore, reliable. No material
contradictions , major discrepancies or improvements appear, as shown
earlier in tabular form of this part and relevant part of their testimonies
for which we have supplied emphasis.
PART XIID
POLICE & FIRE BRIGADE ALONG with VERSIONS OF OTHER
WITNESSES
The following witnesses, [1] Kanu Chhagan Varia, Fire Brigade,
Godhra Municipality, PW129; [2] Kanti Rupsinh Damor, Driver of
the Police Van, Godhra Town, PW137, [3] Mansinh Nurji Vasava,
Head Constable, Railway Police, Godhra Railway Police Station, PW
144, and [4] Ambrishkumar Shiyaram Sanke, Police Constable, RPF
Police Station at Anand Railway Station, PW171 and [5] Karansinh
Lalsinh Yadav, Head Constable, RPF, Outpost Boisor, PW173 are
independent and their testimonies describe unfortunate events of a
violent mob attacking the train, creating all possible hurdles in the
way of authorities in preventing or mitigating crime and
determination on the part of such unlawful assembly to indulge in
violence in spite of firing and again making attempt to release those
miscreants apprehended by the police.
1 Kanubhai Chhaganbhai Varia, PW129 describe the violent
mob armed with stones, pipes, wooden sticks and other such weapons.
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Attempts were made by fire brigade personnel to douse the fire, when
stones were pelted and police fired in the air, attempt was made to
release 15 persons of Muslim community, who were detained. In
addition to the above, this witness confirms about entry made in
occurrence book Register and facts stated and written down therein. In
his further deposition, this witness confirms about arrival of D.S.P., Mr.
Raju Bhargav. In crossexamination this witness referred to certain
omission initially in the police statement. He further states that there
was an approximate distance of 50 to 60 feet between the fire fighter
and the nearest first railway tracks and presence of the police. Even
summoning the fire fighters from the nearby towns like Kalol, Lunawada
and Thermal Power Station has been deposed by this witness.
PW-129 Kanubhai Chhaganbhai Variya is a fireman who was instructed
by PW-133 on receipt of the information that fire had taken place to
Godhra Railway Station.
According to PW-129, the fire fighter was obstructed near Garnala
at the instance of Bilal Haji so as to prevent the timely help to the
victims. A damage is also said to have been caused to the fire fighter
because of the stone pelting resorted to by the mob at the instance of
Bilal Haji.
According to PW-129, such incident and the causation of damage
to the fire fighter is to be noted in occurrence book maintained by Santri
i.e. (PW-133) who also confirmed such fact. PW-129 claims to have
seen such noting in the occurrence book. However, it appears that in the
original occurrence book, there is no such noting. However, in the Xerox
copy such noting were found (verified). [Credibility in question]
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2 Kantibhai Rupsinh Damor, PW137 deposed that upon
receiving a message from the control room, Godhra town, immediately
left for the place of incident and another Alpha mobile van had left prior
thereto. That police personnel and SRP javans made an attempt to
disperse the mob but stone pelting continued, while on the way clear
message was received on wireless message station that a mob of Muslims
had stopped Sabarmati Express near A cabin and they were pelting
stones. This witness had seen Mr. Kalota, the President of Godhra
Municipality, who was present in the mob. In para 18 of his cross
examination, he deposed as under:
“18. We stayed at the place of the incident up to 900 hours.
It is true that I was not present at the place of the incident
after 900 hours. I do not know the fact that when we reached
at the place of the incident, DSP Mr. Bhargav had also reached
there. It is true that we were present on the road from Aman
Guest House to the culvert up to 845 hours in the morning. It
is true that if D.S.P. Mr. Bhargav had been present on the
road from Aman Guest House to the culvert up to 845 hours
in the morning, we would have noticed the same. It is not true
that Mr. Bhargav was standing near the culvert at 835 hours
in the morning. It is not true that both Mr. Mohammad
Hussain Kalota and Bilal Haji were with him at the relevant
time. It is not true that as I was not present in this area during
the relevant day, I deny the presence of D.S.P. Mr. Raju
Bhargav with Mohammad Hussain Kalota and Bilal Haji near
the culvert at 835 hours in the morning. The witness states
that I reached near the culvert after 835 hours. It is not true
that I have not deliberately produced the Log Book so that it
may not come on record from logbook of the vehicle as to
where we were present at which time. It is true that, both the
area of station and the area of Aman Guest House are different
areas”.
3 Mansinh Nurjibhai Vasana, Head Constable, PW144 was
informed by PSO and nearby A cabin via platform No.1 he saw
extreme smoke coming out from the coach and mob of 900 to 1000
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persons of Muslim community armed with weapons like sword,
scythe, iron pipes, strips, sticks and pelting stones on the train while
shouting religious slogans “Kill Hindus and set them on fire”. It was
seen that in spite of lathi charge, mob could not be dispersed, two
rounds were fired by PSI Mr. Zala and one person was apprehended
by him. During this period, fire brigade personnel came with fire
engine from Godhra town for extinguishing fire. In his cross
examination, he makes certain improvements and admits not to have
stated some facts in clear terms before police. However, the fact
about apprehending one person armed with weapon from the spot
and identification of 2 persons in the court remained unjustified.
4 Mr. Ambrishkumar Shiyaram Sanke, Constable in RPF,
PW171 and Karansinh Lalsinh Yadav, Head Constable, RPF, Exh173.
Both these witnesses have almost deposed on the same line of above
witnesses that violent mob was pelting stones and making an assault
with weapons. He denied that though the incident took place
accidentally, he being the instrument of state government and local
politicians, falsely state that it has been done by miscreants mobs. In
crossexamination this witness confirmed that firing took place to
disburse the mob and that he deposited cartridges. In paras 20 and 21,
PW173 state as under:
“20. It is not true that I have not dictated in my
statement given before the police that, “thereafter, the train
stopped due to chainpulling after two or three coaches
moved ahead from the signal.” It is true that when my
statements of 132002 and 832003 were read over before
SIT, I had raised no objection in respect of any fact in it
written falsely in it or any fact missed out in writing.” The
witness states that at that time, the main points were read over
to me. I do not know as to where my duty was on 2522002.
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train from their houses and drop them on account of curfew.
On 232002, my duty started at 800 hours in the morning
and there was no precise time of its being over. I cannot state
the fact as to till what time I was on duty on that day. It is true
that no curfew had been imposed in the area of the jurisdiction
of railway. It is true that the persons performing duty in
railway had been allotted quarters in GL yard and downyard.
The witness states that all the employees had not been allotted
quarters. I do not know the name and residential area of the
driver and the guard, for taking and dropping whom I had
gone in the city on 232002. It is not true that I did not
remember any fact regarding the duty of the day of the
incident, but as my statement has been read over to me, I have
stated the facts accordingly in the examinationinchief. It is
true that when the train came at the platform, karsevaks had
got down and gone to the teastall over the platform for taking
refreshment.
(iv) It is not true that I had not dictated in any of my
statements given before the police that, “at that time,
slogans of “Jay Shri Ram” were being uttered and stones
were being hurled on the train from the side of the parcel
office. Thereafter, the train started again after about five
minutes.” It is not true that I had not stated in any of my
statements before the police that “at that time, we found
that..”. It is not true that I have not dictated in my
statement before the police that the persons of the mob had
rods also with them. It is not true that I had not dictated in
any of my statements before the police that, “they were
shouting loudly that – ‘cut asunder the Hindus, burn
them..”, its announcement had been made from the
microphone of the Mosque. Thereafter, I had gone to the
lobby of the driver on the platform no. 2.” It is not true that
I had not dictated in any of my statements before the police
that, “the phonecall had been received by the constable
Ambishkumar.” It is not true that I had not dictated in any
of my statements before the police that, “Muslim persons
are hurling stones in a large number, you come with
maximum personnels, we are going there. Thereafter, the
constable Shri Mohan and I got down from the lobby and
went running towards the train. The coach of the guard of
the train was on the culvert, and hence, we went towards
the direction of “A” Cabin from below the coach after
crossing two or three coaches from the side of the yard. It isPage 743 of 988
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not true that I had not dictated in any of my statements
before the police that, “we found that Muslim persons were
breaking windows and doors with sword, scythes and
pipes.” It is not true that I had not dictated in any of my
statements before the police that, “I fired one round of
shots in the air towards the coach of S6.” It is not true that
I had not dictated in any of my statements before the police
that, “we had formed a siege.” It is not true that I had not
dictated in any of my statements before the police that,
“after cordoning the persons caught, they were seated near
“A” Cabin.” It is not true that I had not dictated in any of
my statements before the police that, “hence, I and Shri
Mohan and Ambishkumar who were there with me, went
towards the burning coach from below the coach and took
out four or five persons from the coach, Nawabsinh, PSI of
RPF who was earlier in firebrigade had also come and the
fire of the coach was extinguished. The injured persons
were seated outside the coach and they were moved to
hospital for treatment.” It is not true that I had not dictated
in any of my statements before the police that, “I had
submitted the box of the empty cartridges with which I had
made firing, with Shri Prithvipalsinh, ASI of RPF at night,
that is, at 20.00 hours. He received the same after tying it in
paper and writing my name. Thereafter, on 832002, the
police of GRP called me and I went to the Deputy
Superintendent of Police, Western Railways with the said
box”. It did not so happen that at the time of the statement,
the officer recording it kept on asking questions to me and I
was answering accordingly. The witness states that he was
asking “what happened thereafter, what happened thereafter?”
It is true that I was being interrogated in Hindi. I asked the
officer recording my statement to record it in Hindi, so that I
can see as to whether the fact recorded is proper or not. My
statement was recorded in Hindi. The witness states that it
was recorded in Gujarati. After it had been recorded, it was
read over to me in Hindi. The witness states that the main
facts were read over. I do not know the fact as to whether any
clear note had been made below my statement or not in
respect of this reading of the facts to me in this way”.
5 PW-140 Punjabhai Bavjibhai Patanvadiya (at the relevant
time he was serving as Head Constable, Godhra Railway Station, D
Staff)
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Contradictions: [CREDIBILITY IN QUESTION]
• Arrival
• Over crowdedness
• Movement
• Stoppage
• Chain pulling
• Restart
Personal Facts
• 11:00 a.m., InCharge S.P., Simpy, LCB PSI, Mirza, LCB PSI,
Gadhvi, along with their staff arrived.
• RPF Commando Mr.Pandey also arrives with his battalion
• 2500to 3000 Muslim people with weapons like sword, axe,
sticks, carobs filled with inflammable for release of the persons
caught.
• Simpy asked the mob to disburse, but it was violent and
therefore ordered firing.
• RPF Commando Shri Pandey also ordered to RPF Battalion for
firing
• The mob ran helterskelter
• Received injuries on his chest
• Went to the Civil Hospital for treatment
• Police statement 127 to 202
• Identification
• Identifies Juniyad Farukh Hayad (A5 of Sessions Case No.65
of 2009); Idrish Abdula Umarji (A4 of Sessions Case No.69 of
2009) Siddik Abdul Rahim Bakar (A1 of Sessions Case No.80
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of 2009).
Cross
• Identification, did not draw the arrest memo; neither informed
about the arrest of the persons stated by him to their family
members.
• Disputes the suggestion that the identified the accused on the
basis of photographs, maintained by the Police Station.
• Admits that he had not stated the names of the accused as
Juniyad Abdul Ansari / Juniyad Yusuf Dhantiya / Juniyad
Yusuf Hayat / Guljar Agnu Ansari and Idrish Abdula Umarji
Shaikh. He did not recover and submitted the weapons from t
he accused, nor did he give the acknowledgment receipt
thereof.
Contradictions
• In the statement dated 27/02/2002 buckle No.1558 attributed
to him which is not belong to the witness.
Omission
• The surname of Jiniyan Farukh, Idrish Abdulla was not stated
in the statement dated 27/02/2002.
• Guljar Ali’s father’s name as well as surname, age, address
were also not stated.
Corroborates:
• 900 to 1000 people
• Weapons, carbos, stone pelting.
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6 PW-144 Mansing Nurjibhai Vasava - Police Constable,
Godhra Railway Police Station.
• He was involved in Bandobast at platform No.2.
• Reached the scene of offence when the train was already on
fire.
• Hears exhortation from Ali Masjid on the mike.
• Ambish Kumar, Constable filed two rounds as instructed by PSI
Zala.
• Apprehends Fakruddin Yusf Musalman with iron rod.
• Notices Gulzar Ali with iron Patti and Ismail Chngi with iron
pipe.
Corroboration:
• 2500 to 3000 people came
• They had come for getting this apprehended released
• Fire 01+03+01+02 round in air under instructions of Simpy.
• Notices Mohmmed Shaikh, Tayub Aziz, Saiyadkhan Sikandar in
the mob.
• States that police had caught some of the persons from the
mob
• Receives injury on the left eye
• States that Mr.Pandey had also ordered firing through their
gunman
• Statement on 27/07/2002
• Identifies Bilal Binam A3 of Sessions Case No.73 of 2009)
and Suleman Ahmed Pir A29 of Sessions Case No.29 of 2009.
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accused – Fakruddin Yusuf Musalman and Gulzar Ali. Ismail
Chungi, Mohmmed Shaikh, Taiyab Ajij and Saidkhan Sikandar
named by him above are not the accused.
• Fakruddin Yusuf Musalman and Gulzar Ali had died during
trial.
7 From the above stated evidence, a broad consensus
amongst the witnesses as regards arrival of the train, its halting for
about five minutes, its movement, its stoppage near parcel office,
stone pelting, its movement again and halting near ‘A’ cabin, can be
noticed. There is also no dispute as to the incident of teasing and
harassing a Muslim girl and / or the woman. It also seems that
quarrel was picked up by Karsevak with one Muslim tea vendor;
although no clear evidence is borne out on this count, but there are
circumstances indicating such occurrence.
PART XIIE
FURTHER EXAMINATION OF EVIDENCE ON CONSPIRACY BASED ON
TESTIMONIES OF WITNESSES
It is thus required to be examined as to whether incident is an
outcome of a conspiracy or a spontaneous reaction to the above two
incidents.
1 The prosecution case is that on the previous night a conspiracy
was hatched with an object to kill and / or injure the passengers of
coach S6 in particular. It is the case of the prosecution that to achieve
their criminal object, the conspirators took disadvantage of the above
two incidents of teasing the girl / woman and / or the quarrel between
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the Karsevaks and tea vendors. It is alleged that taking advantage of the
said two incidents, the accused raised false alarm that the muslim girl
was being abducted by Karsevak whereas according to the prosecution,
she was safe in the office of Station Master / Superintendent. It is
alleged that the said false alarm, instigated other muslim people to come
to the rescue of conspirators and lodge assault on the train. It is alleged
that taking disadvantage of the situation, the conspirators managed the
chain pulling as also managed to see that the train halts at the desired
spot i.e. ‘A’ cabin, to enable them to execute their plan.
2 On the other hand, the story of conspiracy is seriously
disputed. It is stated that unfortunate incident had taken place all of a
sudden on account of two incidents aforesaid and none of the accused
were involved in the conspiracy.
3 It can be noticed from the testimony of various witnesses
that something went wrong during the final stoppage of the train before
pelting stone on it by the miscreants. The witnesses have deposed that
they were advised to close the doors and windows, sensing trouble, after
the train started moving, after its initial halt. PWs82, 85, 97 and 113
were the passengers travelling in coach S6 at the relevant point of time
and they throw considerable light as to the manner in which the incident
started.
4 PW82 had testified that he wanted to buy a cup of tea for
his wife from a Muslim vendor who had come inside coach No.S6 but
the Karsevak did not allow him and the tea vendor was taken out of the
coach by the Karsevaks. He continued to occupy his seat and after
sometime there was a commotion. Police Official testified having
accused – Shokat complained to him for having been beaten by
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Karsevak.
5 PW97 also deposes that after purchasing the tea by him on
the official stoppage of the train, a commotion was heard by him which
was followed by stone pelting.
6 PW113 also corroborates the happening of commotion
after official halt of the train.
7 PW85 also deposes that after the official halt of the train he
had disembarked to the platform and heard shouts from engine side that
stone pelting is being done. He saw Muslims from outside the street
pelting stone and then rushed to the train. PW 86 deposes having been
advised to close the door and windows as the stone pelting was
apprehended. PW164 also deposes the stone pelting by the mob during
the official halt of the train.
8 Pertinently, the two incidents aforesaid had also occurred
immediately before such commotion and stone pelting. There is
therefore the reason to believe that the starting point of the incident was
the commotion either on account of teasing of the girl and / or the
woman or on account of Karsevak resisting the sale of tea by a Muslim
boy.
9 For better appreciation of evidence, two statements of
Muslim women viz. Sofia Dhantiya, PW183 and Jetunbibi Shaikh,
PW184 are very necessary about harassment and molestation on the
platform at Godhra Railway Station on the date of incident i.e.
27.02.2002 and hatching conspiracy and execution thereof, which read
as under:
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“PW183
1 I have been residing with my family at the
aforementioned place in Vadodara since last two years. As my
marriage was solemnized in 2005, I am residing at Vadodara
with my husband. My father Sirajbhai Majidbhai Shaikh is
performing duty as Fitter in Vadodara Railway, and he is
residing in the quarters near ‘D’ Cabin at New yard in
Vadodara only. We are two sisters. The name of one of my
younger sister is Saidaben. The name of my mother is
Jetunbibi. My maternal aunt (Mausi) – Taherabibi is residing in
Bhatook Plot in Signal Faliya in the Godhra City.
2 As there was the festival of Eid on 23022002, my
mother and we both the sisters had gone at the house of my
maternal aunt – Tehrabibi situated at Godhra by traveling in
Deluxe Train from Vadodara at 06:00 o’ clock in the evening.
Thereafter, as we have to come to Vadodara on 27022002,
we were waiting for the Memu Train at Godhra Railway
Station. We were standing on platform no. 1. After some time,
Sabarmati Express Train came from Dahod side and stopped
on platform no. 1. In that train, some people had put on
saffron ribbons. These people were speaking the slogans of
“Jay Shree Ram Jay Shree Ram”. These people got down to
take tea and breakfast as the train was stopped. I do not know
that, for what reason the quarrel had taken place, but they
were beating beard Muslim, and were speaking that, “kill the
Muslims, slaughter the Muslims”. Hence, we were frightened,
and started to go towards the ticket window. Meanwhile, a
saffron ribboned person had gaged my mouth. He had left my
mouth as we started to shout. Thereafter, when we were going
towards the office of ticket window, at that time those people
had molested one women dressed in veil. Thereafter, we had
gone near the ticket office, and went back at the house of my
maternal aunt by hiring the rickshaw. Then we came back
from Godhra to Vadodara at our home after 10 15 days. Police
had taken my statement on 28032002.
Cross Examination
by Ld. Advo. Mr. Y.A. Charkha
on behalf of the accused persons
[Accused nos. 16, 32 to 35, 44, 45, 49, 50, 62, 72, 73, 76]
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3 It is true that, the person who had pressed my
mouth had started to drag me towards the coach of train, and
at that time, as my mother had started shouting ” help, help”,
hence the person who had caught hold of me had left me, and
thereafter, we all three had gone towards booking office. I do
not know about that, whether we had left to go at the house of
my maternal aunt before the departure of Sabarmati Express
Train from the platform or not. It is true that, we both sisters
and my mother were frightened due to the aforementioned
incident.
Cross Examination
by Ld. Advo. Mr. A. A. Hasan
on behalf of the accused persons
[Accused nos. 1 to 6, 10, 13, 18, 22, 24, 31, 37, 38, 41, 42, 43,
47, 51 to 54, 58, 59, 61, 63, 65, 67, 69, 74, 75, 77 to 79, 81,
82, 84 to 100, 101]
No Cross Examination
Cross Examination
by Ld. Advo. Mr. L. R. Pathan
on behalf of the accused persons
[Accused nos. 7, 9, 14, 17, 36, 55, 56, 60, 66]
No Cross Examination
Cross Examination By Ld. Advo. Mr. I. M. Munshi
Ld. Advo. Mr. L. R. Pathan – by transfer letter
[Accused nos. 11, 12, 15, 20, 21, 23, 40, 48, 68]
No Cross Examination
Cross Examination By Ld. Advo. Mr. J. M. Pathan
on behalf of accused
[Accused nos. 26 to 30, 70, 71]
No Cross Examination
Cross Examination By Ld. Advo. Mr. S. M. Dadi
on behalf of accused not present
( Accused nos. 39, 57 )
No Cross Examination
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No ReExamination”
“PW184
1 My husband is serving in Railway as a Fitter. I
have two sisters, among them one – Taherabanu has been
married at Godhra, and she is residing with her family in
Singal Faliya. As my sister and brotherinlaw (behnoi) had
gone for the pilgrimage of Haj at Makka – Madina on 1002
2002, and came back from there after Haj, and also there was
the festival of Eid, so I went to meet them with my two
daughters namely – Sofiya and Saheda on 23022002 from
Vadodara to Godhra in the Train at about 06:00 o’ clock and
had reached at about 08:00 o’ clock and had stayed at the
house of my sister Tahera.
2 I and my both the daughters had gone to Godhra
Railway Station to come back from Godhra to Vadodara on 27
022002, and were waiting on platform no. 1 for Memu Train.
Meanwhile, Sabarmati Express Train came from Dahod at
about 07:30 o’ clock, and when the train was stopped on
platform then some people got down from the train. They had
put on saffron ribbons and were speaking the slogans of “Jay
Shri Ram”. Thereafter, some among them were beating one
bearded person of Muslim community and were bringing
towards us, and at that time they were also speaking that, “kill,
slaughter the Muslims”, hence I and my daughter were
frightened, and we all three had started to go towards the
booking office. At the same time, one person wearing the
ribbon had gaged the mouth of my daughter Sofiya who was
walking behind me, and as he had tried to drag her towards
the coach, I shouted “help, help”, on hearing that, the said
person had freed my daughter Sofiya. Thereafter, we all three
had speedily gone towards the booking office. At that time,
one person among them, had tried to pull the veil of a women
of Muslim community came. After some time we came out
from the booking office and dropped the idea to go back to
Vadodara, and went at Singal Faliya at the place of my sister
Tehra in rickshaw. Then, after about 10 days we had gone
from Godhra to Vadodara. The police had recorded my
statement by inquiring me about the aforementioned matter
on 28032002.
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Cross Examination
by Ld. Advo. Mr. A. A. Hasan
on behalf of the accused persons
[Accused nos. 1 to 6, 10, 13, 18, 22, 24, 31, 37, 38, 41, 42, 43,
47, 51 to 54, 58, 59, 61, 63, 65, 67, 69, 74, 75, 77 to 79, 81,
82, 84 to 100, 101]No Cross Examination
Cross Examination
by Ld. Advo. Mr. Y.A. Charkha
on behalf of the accused persons
[Accused nos. 16, 32 to 35, 44, 45, 49, 50, 62, 72, 73, 76]No Cross Examination
Cross Examination
by Ld. Advo. Mr. L. R. Pathan
on behalf of the accused persons
[Accused nos. 7, 9, 14, 17, 36, 55, 56, 60, 66]No Cross Examination
and
Cross Examination By Ld. Advo. Mr. I. M. Munshi
Ld. Advo. Mr. L. R. Pathan – by transfer letter
[Accused nos. 11, 12, 15, 20, 21, 23, 40, 48, 68]
No Cross ExaminationCross Examination By Ld. Advo. Mr. J. M. Pathan
on behalf of accused
[Accused nos. 26 to 30, 70, 71]
No Cross ExaminationCross Examination By Ld. Advo. Mr. S. M. Dadi
on behalf of accused not present
[Accused nos. 39, 57]
No Cross ExaminationNo ReExamination”
9.1 The prosecution itself had relied upon the incident of
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teasing of the muslim girl. The muslim girl and her mother is examined
as Sofia Dhantiya, PW183 and Jetunbibi Shaikh, PW184 respectively.
They have deposed to the teasing and chasing of the girl by some of the
people. The chasing of the girl in the manner aforesaid was sufficient to
give rise to the apprehension in the mind of the accused that the girl
would be taken away or abducted. No evidence is adduced to show that
the said accused had the knowledge that girl was at the safe place. He
was thus justified in raising the alarm for help to save the girl. Such a
reaction was thus prudent and obvious and unless contrary intention
was proved, the Court would not be justified in raising an inference that
such alarm was raised by the accused falsely in order to create conducive
room for execution of the plan by the conspirators and if the prosecution
was interested in attributing the intention of raising false alarm to the
said accused, heavy burden lay upon the prosecution to prove that the
aforesaid was not natural spontaneous conduct of the accused, but was a
pretext to gather help of the mob in execution of the plan of the
conspirators.
10 Before the incident of burning the train at ‘A’ cabin, the
train had halted twice i.e. once during its official halt and on the second
occasion, near parcel office, on account of the 1st chain pulling. The
train moved for few movements after official halt, before stopping at
parcel office. No other major incidents between these two halts had
taken place.
11 The evidence of PW135 reveals that the chain was pulled
from three or four coaches but certainly not from coach No.S6. No
passengers travelling in the train or other persona on the platform,
except PW236 Ajay Baria deposed accused having loosened the valve
for the vacuum to drop for the purpose of stopping the train.
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12 That apart testimony of PW84 in crossexamination
indicates that they had heard, after movement of the train after official
halt, that some of the passengers were left out on the platform and thus
the possibility of pulling of the chain first time to help the said
passengers boarding the train, from three or four different
compartments, cannot be ruled out. PW 84 deposes that when the train
stopped after its official stop of five minutes, some of the left out
passengers boarded it. Thus, the evidence of the passengers and by
standers on the platform do not cogently and conclusively establish the
first chain pulling by accused as part of conspiracy.
13 Second chain pulling of the train after its movement from
the parcel office by accused, as a part of their conspiracy, as per the
evidence of Rajendraprasad Raghunathrao Jadav, Engine Driver of
Sabarmati Express PW228. In his testimony before the trial court he
admits to have repaired the hose pipe and even Ajay Kanu Bariya PW
236, who witnessed the incident also make reference to such damage
to the hose pipe. This aspect could explain that movement of the train
after restoring the electricity supply upon repairing the hose pipe.
14 True that, no acts of violence can be justified, however,
when it occurs, spontaneous behavior of a mob intending to save their
girl being abducted would be similar to what is discerned from the
evidence on record i.e. stone pelting. Evidence of PWs82, 85, 97 and
113 would indicate the commotion and stone pelting during the official
stoppage of the train; evidence of other witnesses being PWs – 77, 82,
84, 87, 91, 92, 94, 95, 98, 99, 102, 103, 78, 86, 89, 120, 79, 81, 113,
202, 152, 154, 155, 159, , 172, , 138, 228, 136, 135 and 127 would
indicate that stone pelting had taken place after the 1st chain pulling
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near parcel office where the train had stopped. The act of teasing the
girl was uncertain and thus was not a part of the plan of the
conspirators. The very basis for the offence under Section 120B is the
entering into the conspiracy and formation of a plan to execute it. A
conspirator would rely upon his own plan rather than waiting for some
uncertainty to occur. No doubt, a conspirator may plan for provocation
to the victim and act upon such provocation; in the facts of the present
case, according to the prosecution, the conspirators relied upon
uncertainty aforestated for provoking a crowd to attack the train.
Unless the provocation is planned, on some certainty, the conspirator
would normally lodge unprovoked assault or unprovoked action towards
achieving his goal. Since the teasing of the girl was uncertain, such
uncertain fact could not have been the basis for the conspirator to
execute their plan and it is not brought on record as what other
independent acts were done by the conspirators before the teasing of the
girl, for execution of their plan. In other words, there is no evidence to
show as to how the conspirators were prepared to execute their plan,
had the teasing of the girl not occurred.
15 It is not as if that the whole incident occurred at ‘A’
cabin. It was initiated during the official stoppage of the train and
again an attempt was made at parcel office and then ultimately at ‘A’
cabin. If all these three “sub incidents” are taken into consideration
as one incident, it would appear that initially incident of misbehavior
with Muslim women and/or beating the Muslim tea vendor may have
resulted into pelting of stones. The evidence also came on record
that some of the accused exaggerated the above version and
thereafter mob turned violent and attacked the train and passengers
and damaged the train not only to coach S/6 and S/7, but to other
bogies and broken window pans, etc. would go to show that unlawful
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assembly participated in the crime and accordingly they were
charged. That members of unlawful assembly attacking the train
with deadly weapons without having knowledge of conspiracy and
the members of such unlawful assembly who overtly participated in
breaking open windows by damaging iron rods and other such
weapons, throwing acid bulbs and burning rags inside the coach and
their role in furtherance of common object needs to be examined
though members of such unlawful assembly may not have initially
hatched conspiracy, but participated actively in commission of crime
viz. burning of S6 coach and damaging other coaches severely.
16 As stated above, stone pelting was resorted to at three
different places i.e. during official stoppage of the train; near parcel
office and lastly at ‘A’ cabin. It was therefore natural for the witnesses to
close the windows and door as deposed to by PWs114, 87, 91, 92, 95,
102, 120, 79, 81, 97 and 119 to save themselves.
Carboys
PW 94 (omission),
PW173 (carboys) (companion of PW:164 vital contradiction with
the testimony of PW:164,
PW152 (no omission but contradiction omission on other vital
aspects),
PW155 (omission),
PW: (omission),
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PW159 Rajeshbhai Vitthalbhai Darji
17 PWs94, 173, 152, 155, and 159 attribute the possession of
carboys and sprinkling inflammable therefrom on Coach S6, to the
assailants.
18 PW159 Rajeshbhai Vitthalbhai Darji seems to be unsure
about the contents of carboys i.e. petrol or kerosene, as is evident from
his crossexamination.
19 PWs173 and 164 were on patrolling duty together
throughout the incident except when they went for telephonic call
requisitioning extra force for controlling the assault on the train. Both of
them have to say the different account of the incident. According to PW
173 the people of the mob possessed carboys and were sprinkling the
inflammable on the train, whereas no such facts are referred to by PW
164. PW also testifies about the possession of carboys and sprinkling of
inflammatory substance therefrom on the train and setting of the Coach
S6 ablaze. PWs94, 155 and seems to have omitted the attribution as to
the assailants possessing carboys, in their statements recorded under
Section 161 of Cr.P.C. Statements of PWs173 and 152 were recorded on
01.03.2002. Statement of PW159 Rajeshbhai Vitthalbhai Darji was
recorded on 27.02.2002 , 03.03.2002 and 17.10.2003 (for completing
the names) and T.I .Parade was held on 20.11.2005. Thus, it can be
noticed that the statements of PWs173, 152 and 159 recorded within
the immediate proximity of time of occurrence referred to the possession
of carboys and sprinkling of inflammable therefrom on the train. PWs
94, 155 and also referred to the possession of carboys and sprinkling
kerosene therefrom on the train by the assailants, in their evidence, with
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the omission in their statements. However, in view of the testimonies of
PWs173, 152 and 159 such omission pales into insignificance.
Therefore, the argument that story of the carboys/petrol was developed
subsequently has no substance.
20 To avoid duplication of evidence, other witnesses examined
by the prosecution are not referred to in details hereinafter, except to the
extent necessary.
21 PW233 Dilipkumar Gaimal Chelani deposes the obstruction
to the firefighters by the mob as exhorted by accused Bilal Haji. He also
deposes the firing of gunshots twice. His statement was recorded on
03.03.2002 and another statement on 03.05.2002. The witness names
and identifies following persons:
22 Siddiq Matunga, Saukat Badam, Shaka, Bilal Badam, Sattar
Gadi, Rajak Kurkur and Bilal Haji. Except Shaka, Siddiq Matunga and
Sattar Gadi, rest of the four seems to have been identified by him
correctly in the Court.
23 Several persons including the above four are named in the
evidence by him as the assailants with weapons in the mob. His
statement was recorded by Shri Jadeja. Second statement dated
03.05.2002 was given by him to complete the names of the assailants
given by him in his statement dated 03.03.2002. In his statement dated
03.05.2002, it was stated that full names of the assailants were available
to him now, however, in reply to the question put to him, the witness
states that he knew the full names from the inception. If that was so,
nothing could have prevented him revealing full names at the inception
and there was no necessity of recording his further statement datedPage 760 of 988
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03.05.2002. Therefore, question arises as to whether the witness knew
the full names of the assailants or names were suggested to him by the
person interested to rope in the innocent persons as assailants. The
question also arises as to whether the testimony of the witness on this
count can be rejected when he was able to name and identify four
persons as assailants in the open Court.
25 The witness admits commotion with the tea vendor on
Platform No. 1. The witness disputes the omission that Bilal Haji came
on motorcycle near the firefighter and exhorted the people.
26 PW214 Laxmandas Gyanchand Rajai is a panch witness for
panchnama of the apprehended accused. He was not able to identify
such accused in the open Court.
27 PW204 Nainsing Sevasing Rathod is a panch witness qua
the arrest and physiognomy of accused Mujaffar Usman Hayat. He
identified him in the open Court.
28 PW201 Dipakkumar Chinubhai Trivedi is a panch witness
for arrest and physiognomy of accused Ibrahim Adam Dhantiya alias
Kachuka. He identified him in the open Court.
29 PW212 is the Executive Magistrate, who held T.I.Parade for
accused Ibrahim Adam Dhantiya through witness Kakul Pathak.
30 PW207 Ambalal Ranchhodbhai Patel was a Railway
Magistrate, who recorded statements of Ajay Kanubhai Bariya, Iliyas
Husen Mulla, Anvar Abdul Sattar Kalandar under Section 164 of the
Cr.P.C.
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31 PW206 Bhikhabhai Harnambhai Bariya (wrong address)
is a Bidi, Cigarette hawker. He deposes the presence of other hawkers
being Sokat Lalu, Mahmmed Lalu, Hasan Lalu, Ajaybhai Kanubhai
Bariya, Mahebub Popa, Sokat Bibino and others on Railway Platform on
27.02.2002. He also deposes the quarrel/commotion with tea vendor
Siddiq Baqar on Platform No.1 after arrival of Sabarmati Express. The
quarrel was also taken up with Mahebub Latika, who ran on the hill
towards Singal Falia and called Muslims for help, who came and started
pelting stones on the train. The train started and the chain was pulled;
left out passengers boarded it; the train restarted whereupon Salim
Panvala shouted for stopping the train and Anvar Bhopa, Kadir Pataliya
and Sokat Bhano got into the train and Kadir Pataliya entered between
two couplings and loosen the valve and the train stopped near ‘A’ Cabin.
The stones pelting started on the train near ‘A’ Cabin after arrival of the
mob and the train was set ablaze. He was standing behind the ‘A’ Cabin
and Anvar Bhopa was standing near the train. The witness deposes the
presence of Hasan Lalu, Sokat Lalu, Mahmmed Lalu, Kadir Pataliya,
Babu Pataliya, Soeb Kalandar, Yunus Ghadiyal, Mahebub Popa, Salim
Panvala, Sokat Bibino, Sokat Bhano, Salim Panvala and Ramjani Bibino.
His statement was recorded on 25.07.2002. The witness identifies
following persons :
32 Sokat Bhana, Hasan Lalu, Sokat Bibina, Mahebub Latika,
Irfan and Mahebub Popa, who on verification stated their names
respectively thus (1) Sokat Faruk Pataliya (A5 Session Case No. 75/09),
(2) Hasan Ahmed Lalu (A4 Session Case No. 71/09), (3) Mahmmed
Sokat Yusuf Mohan (A1 Session Case No. 85/09), (4) Faruk (Mahebub)
Ahmed Yusuf Hasan (A1 Session Case No. 84/09), (5) Irfan Abdulmajid
Kalandar (A2 Session Case No. 81/09), (6) Mahebub Yakub Mitha (APage 762 of 988
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2 Session Case No. 71/09).
33 The Court noted that persons named by the witness
namely Sokat Lalu, Mahmmed Lalu, Hasan Lalu, Kadir Pataliya, Babu
Pataliya, Soeb Kalandar, Yunus Ghadiyal, Salim Panvala, Ramjani
Bibini are not the accused and there is no accused by name Yusuf
Ghadiyal but, there is accused named Yusuf Abdulhaq Samol. There is
no accused named Ramjani Bibino but, there is accused named
Ramjani Binyamin Behra. Court further noted that the person named
Soeb Kalandar named by the witness is present in the Court (if
necessary referred to his crossexamination).
34 PW205 Shardul Bhalchandra Gajjar is a photographer, who
photographed, 12 in number, the burning coach/train Exhs1048 to
1059. He admits the sting operation by Tahelka (Shri Ashish Khetan)
and the interviews of Murlidhar Mulchandani, Kakul Pathak and
Kalabhai Petrol Pump employee Ranjitsinh Jodha. He also admitted the
fact that during such interview Murlidhar Mulchandani and Kakul
Pathak stated that both of them were not present at the scene of offence
but at their respective residence. He also admitted that during the
interview Ranjitsinh Jodha stated that Noel Parmar has given to him
Rs.50,000/ after showing the photographs and telling him to identify
those persons as accused in the offence.
35 PW200 Karansinh Ranjitsinh Zala is a witness evidencing
the distance of 750 meters in 10.04 minute in a tempo rickshaw with 9
carboys and 8 persons from Aman Guesthouse to Ali Masjid on
experimental basis.
36 PW252 was Chief Judicial Magistrate, Godhra, who issued
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certificate under Section 32(5) of the POTA for the verification of the
statement of accused Salim Jarda.
37 PW251 Jayeshkumar Kantilal Bhatt was DSP
(Administration), who recorded the statement of Salim Jarda under
Section 32 of the POTA.
38 PW250 was 2nd Additional Senior Civil Judge and Judicial
Magistrate First Class, who verified the statement of accused Mahebub
Ahmed Yusuf Hasan alias Latiko recorded by Superintendent of Police
(PW: 248) Anupamsing Gehlot (under Section 32 of POTA?).
39 PW249 Siddhrajsinh Gulabsinh Bhati recorded the
statement of accused Sokat alias Bhano Faruq Abdul Sattar Pataliya
(under Section 32 of POTA).
40 PW247 was Police Inspector, CID Crime, Vadodara, who
reached to the scene of offence along with the Police Force at about 17
Hours and reported to Deputy Police Superintendent Shri Simpi. He
recorded statement of Dilip Gehumal Sindhi on 03.03.2002 and that of
PSI R.G. Parmar (PW147), Head Constable Mangalbhai Ramjibhai (PW:
142), Constable Jasvantsinh Kalusinh (PW139) and others on
07.03.2002 and on 08.03.2002, those of Head Constable Babubhai
Bhaljibhai (PW169), Police Constable Jasvantsinh Gulabsinh (PW141),
Police Constable Vinubhai Kasnabhai (PW143) and on 09.03.2002,
those of Police Constable Mansing Kurji (PW144) (Nurji/Hurji PW177)
and Constable Kantibhai Rupsing (PW137).
That charge of conspiracy further gets strength by
corroborative evidence from the following witnesses:
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41 It is true that PW93 Shardaben Manubhai Patel (Exh.657)
deposed about petrol smelling beyond the sliding door and knocking and
thrashing the sliding door. It may be true that somebody might have
succeeded entering upto sliding door on the rear of S6, but that fact by
itself would not establish beyond reasonable doubt that the persons with
petrol and those who were knocking sliding door were accused named
and identified by Ajay Baria.
42 The endeavour is to find out as to whether there was any
conspiracy as is alleged by the prosecution and is sought to be proved by
relying upon various witnesses including the confessional statement of
accused Jabir and testimony of Ajay Baria.
43 Testimony of the victims / occupants occupying the seats on
and around Seat No.72 would have extra edge over other testimony and
therefore it will be important to discuss the same at this stage.
44 PW88Shantibhai Shankerbhai Patel (Exh.642) was
occupying Seat No.70 and PW93 Sharadaben Manubhai Patel (Exh.657)
was occupying Seat No.72.
45 Likewise PW 114 Subhash Chandra Ramchandra Mishra
(Exh.719) with his family had reserved seat No.69 but was allowed to
occupy seat No.69, 70 and 71, PW82 Virpal Chhedilal Pal (Exh.627)
was having Seats No.58, 59 and 61. Rajendrasing Rafesing Rajput have
reserved Seats No.62, 63 and 64 and was actually occupying Seat No.61.
46 Their deposition is relevant to an extent that who was
occupant of Seat No.72 which was a single seat and on halting of thePage 765 of 988
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train on arrival at platform No.1 of Godhra Railway Station in the
morning of 27/02/2002, some of the passengers got down for
refreshment and train started and after some movement there was a
stone pelting and the train had stopped and again after some movement.
The train had stopped nearby `A’ Cabin. There was extensive stone
pelting resulting into breaking of glass and windows, was herself hurt by
stone and to save herself she went to the passage between two toilet.
The rear door (sliding door) was closed and she heard knocking from
behind. Thereupon she jumped out of the train. According to her, the
assailants were Muslim because they were wearing round cap and that
the people were throwing burning rags into the coach. She names the
deceased copassengerChampaben, Manubhai, Shilaben, Mafatbhai and
others. Their postmortems are placed on record.
47 PW114 Subhashchandra Ramchandra Mishra (Exh.719)
had their reserved seats in S6 being 69, 70 and 71. The material
relevant facts which come out from his testimony are that there was
heavy stone pelting on the train on 27/02/2002 as stated by other
witnesses and because of that they closed windows, but one of the
windows did not have aluminum protection but was made of glass which
protection was not because of heavy stone pelting. This witness
corroborates the factum of breaking of windows deposed to by PW93.
[However, some contradictions are in respect of the setting of hey of
grass and thereby setting ablaze the coach and generation of smoke
therefrom as well as knocking of the sliding door in his statement dated
08/05/2002, otherwise there are no material contradictions in the
evidence of this witness.]
48 PW99 Prakash Harilal Teli (Exh.674) had reserved seats in
S7 coach, but was not allowed to occupy those seats by the
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unauthorized occupants of S7 and was directed to move forward and
therefore he occupied the space between two toilets of coach preceding
S7 (i.e. end of S6). He was accompanied by his uncle and others and
to secure himself from cold, his uncle closed the door (sliding door)
between S6 and S7.
49 Apart from this fact, while stopping of train, its movement,
stone pelting on two occasions, etc., his testimony is relevant to an effect
that the door (sliding door) which was closed, was being knocked by
someone from the backside (S7 side). There is improvement in his
evidence that fire started from the side of the latrine outside outside the
said door i.e. S7 as admittedly, he did not make such statement under
Section 161 of Cr.PC. Because of the smoke in the coach, he felt
suffocated and after someone opened the door (of side door) he and his
family members climbed down from S6 and thereafter saw the burning
coach.
50 PW180 Dr. Zuber Mohammed Yusuf Mamji : he treated
accused Jabir for his injury at 9:30 a.m. on 27.02.2002.
51 PW181 Bhupatdan Vishnudhan Gadvi drew inquest of one
Prahaladbhai Jayantibhai Patel.
52 PW182 Tahirbibi Idarish Yusuf Mafat is a hostile witness;
the wife of accusedIdarish Yusuf Mafat.
53 PW183 Safiyaben Suleman Datiya was a witness present on
platform No.1 on 27.02.2002 bears the testimony to arrival of Sabarmati
Express alighting of some people therefrom chanting “Jay Shree Ram,
Jay Shree Ram”, for refreshment; their taking up quarrel with bearded
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Muslims exhorting “kill the Muslims”; their going to ticket window,
closing of her mouth from behind by one orange belted person teasing of
one other burga clad lady by those persons. Her statement was recorded
on 28.03.2002.
54 PW184 Jaitunibibi Sirajahmed Sheikh was present on
Platform No.1 on 27.02.2002 and her testimony is almost similar to
testimony of PW:1. In addition to that, she states that mouth of her
daughter Sofiya was gagged by one belted person and she was
attempted to be taken towards the coach. She was released after screams
for help and then both of them went to bookingoffice for shelter.
55 PW185 Janak Bupendrabhai Popat is the witness who
prepared the map of Platform No.1 at the instance of the Police
Department in April2004.
56 PW186 Mustak Ahmed Hussein Mohammed Boba is the
hostile witness and was sought to be examined in support of meeting for
criminal conspiracy.
57 PW187 Kishorsinh Juvansinh Sarvaiya is a fire officer
employed at Alang Ship Breaking Yard at the relevant point of time and
bears the testimony to his inspecting the coach on 23.04.2002.
58 PW188 Mustak Ahmed Nurmiya Rangraj was a receptionist
in Prince Hotel under one Rafikmiya Jabbarmiya Shaikh and bears the
testimony to the police collecting certain registers from his custody
which contained entries concerning Nannumiya for his stay in the hotel
and other details.
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59 PW189 Firojbhai Ibrahim Posti is the hostile witness and
was sought to be examined in support of recovery of certain articles from
Aman Guest House on 04.09.2002.
60 PW190 Vinodbhai Ganpatbhai Chauhan is a hostile witness
and was sought to be examined in support of the whole occurrence.
61 PW191 Ahmed Nabimiya Nakuda bears the testimony to
recovery of registers concerning stay of Nannumiya Tomajadali.
62 PW192 Riyazuddin Amiruddin Pathan is a hostile witness
and was employed by Rajak Kurkur in Aman Guest House and was
sought to be examined in support of the fact that Nannumiya Tamjidali
Chaudhari, CRPF Constable was a frequent visitor whom Irfan Siraj
Pado, Jabir Binyamin Bahera, Imran Ahemad Bhatuk @ Sheru, Kasim
Abdul Satar @ Kasim @ Biryani, Hasan Ahemad Charkha @ Lalu,
Mahammed Khali Chanda Nannumiya used to meet and who impart
them the training of operation of rifle throwing of bomb, etc.
63 PW193 Suleman Mohammed Bhatuk is a hostile witness
and was sought to be examined in support of the fact that certain named
accused were throwing stones on the train and were carrying out assault
of other nature.
64 PW194 Rehanaben Sabbirhussein Badam is the hostile
witness and is the wife of accusedSabbirhussein Badam and was sought
to be examined for production of iron axe by the said accused.
65 PW195 Yusuf Hussein Bhatti bears the testimony to
recovery of original register from Classic Hotel, Bharuch concerning stay
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of Nannumiya in the hotel.
66 PW196 Irfan Yakub Mitha is the hostile witness.
67 PW197 Chandrashankar Purshottam Mehta was a
Mamlatdar and extrachitnis on 14.02.2002 and bears the testimony to
his having issued a Notification under Section 37(1) of the Bombay
Police Act prohibiting the possession of weapon in public on the defined
dates in the notification.
68 PW198 Gulabsinh Andarsinh Chauhan was the ASI on
08.08.2003 and bears testimony to his and Head Constable Bhikhabhai
and Head Constable Dilipsinh having arrested and having drawn
panchnama of arrest of Rol @ Rahul Amin Husain Hathila and identifies
the arrestee in the Court.
69 PW165 Sureshgiri Mohangiri Gosai was the Fireman
employed with Godhra Nagar Palika on 27.02.2002 and bears the
testimony to Bilal Haji Sujela obstructing the passage of the firebrigade
and exhorting the Muslim mob armed with deadly weapons, by gesture,
for pelting stone on the firebrigade, etc. He also bears testimony to the
police having recorded his testimony on 03.03.2002 and abovestated
incident having not been entered into occurrence book and he and other
fire personnels having given the writings and his Supeior Officer having
acknowledged the same. Xerox copies of the writings were produced at
Mark 855/1 and 855/2 by this witness. The witness identified
Abdulraheman Abdulmasjid Dhantiya and Bilal Ismail Sujela as the
person obstructing the firebrigade.
70 In the crossexamination, he admitted that Kanubhai Variya,
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Pradipsinh Bhodasinh Thakor and Rupsinh, and firebrigade officer
were asked certain questions in relation to occurrence book in their
testimony and that therefore he realized that the incident of stone
pelting on the firefighter should be brought on record. It also transpires
that, without being asked, the witness produced the xerox copies of the
above writings. Being confronted with the various precedents statements
made by the witness, it was admitted by him that he had not revealed
any way the fact that written report about stone pelting of firefighter
was made to an acknowledge in writing by the firebrigade office. When
confronted with the statement before Nanavati Commission, he had to
admit that due to insufficiency of water in the firefighter, it had to be
refilled from the well of Dhantiyakaka. The witness was confronted with
the statement dated 04.11.2008 recorded by SIT wherein the presence of
Abdul Raheman Yusuf Dhantiya was shown at the well (garage of Abdul
Raheman Yusuf Dhantiya is at a distance of 50 to 60 ft. towards
Godhra side from railway Garnala/underbridge). The kachcha writing
contained in the written report about stone pelting on the firefighter was
written by all the abovereferred witnesses after about one month of the
incident. Before that occurrence book was not perused, Abdul Raheman
Yusuf was the Chairman of Motor Vehicle Department at relevant point
of time. The witness admits the omission that they had given a written
report aforestated because no entry in relation to the above incident
was made in the occurrence book.
71 PW166 Dhulabhai Amlabhai Bariya was deployed as Police
Constable on Godhra Railway Station in 2002. He mainly bears
testimony to the firing, lathicharge, warning and apprehension of the
accused named by him in the testimony.
72 PW168 Mandakiniben Nilkant Bhatia was the passenger in
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S6 on 27.02.2002 and bears testimony of abovereferred facts including
weapons held by the mob, stone pelting, breaking of windows from
metal heap, closing of windows, throwing of acid bulbs, burning rags
into the coach. She also bears testimony to the fact that from her back,
some inflammable was poured and fire was lit. She also refers to Nitaben
Panchal, her husbandHarsadbhai Patel, her two daughters viz. Pratiksha
and Chhaya, Sudhaba Rawal, Satishbhai Vyas and others as the person
who lost their lives. Her husband sustained serious burn injuries on his
legs and was admitted to in the Civil Hospital and where first aid was
given her also and thereafter, both of them subsequently transferred to
Civil Hospital, Ahmedabad and then they got admitted to private
hospital where plastic surgery was performed on them. Her statements
were recorded on 06.03.2002, 21.01.2005 and 22.01.2005. She also
bears the testimony to the fact that the accused were having carboys
with them. The witness identified Usmangani Mohammed Kofiwala
(accused no.4, Sessions Case No.78/2009); Siddiq Ibrahim Hathila
(accused no.1, Sessions Case No.86/2009); and Abdul Rajjak Yakub
Ismailwala (accused no.52, Sessions Case No.69/2009) by face and not
by names.
73 In the crossexamination, she disputes the suggestion that
the windows of the coach were closed when the train stopped after
moving about a kilometer with an explanation that the windows were
opened after it moved after first halt. She however admits that after the
train stopped as above, windows of the coach were closed by the
passengers. She admits that there was enormous smoke in the coach due
to which things were invisible. When the police statement dated
21.01.2005 was shown to the witness, she identified Seat No.54 in S6 in
place of her sitting at the relevant point of time. The omission regarding
throwing of acid bulbs, burning rags through the broken windows in her
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statement dated 06.03.2002 was brought on record. Similarly, the
omission regarding someone pouring the inflammable from backside and
setting it on fire was also brought on record in her statement dated
06.03.2002. However, in her statement dated 06.03.2002, she had
stated that petrol and acid bulbs were coming inside through the
windows initially and there was enormous smoke.
74 PW169 Babubhai Balajibhai Patel was ASI of Godhra Town
Police Station deployed in Alfa Mobile Inchage on 27.02.2002, who
bears testimony to his receiving yadi as regards pelting of stone in single
fadiya and having reached there, found the mob indulging into the stone
pelting and burning of the coach in his presence other mobile vans.
75 PW170 Pravinkumar Amthalal Patel bears the testimony to
his traveling in S6 coach of Sabarmati Express on 27.02.2002. He refers
to the sprinkling of kerosene by carboys from third last window. After
that, he saw the smoke, felt suffocated. He refers to Ranjitsingh and a
personnel from military and his family. He bears testimony to his having
been beaten after he coming out on the offside.
76 It appears that the Karsevaks travelling in the train on its
arrival at platform No.1 at Godhra Railway Station were chanting
slogans like Jai Shri Ram. The prosecution has come out with the case
through PW183 – Safiyaben Suleman Dantiyar and PW184 Jaitunbibi
Sirajmohmmed Shaikh that PW183 was teased and harassed by one
person who gagged her mouth by his hand and on her raising alarm for
help, she was released. PWs813 and 184 corroborate each other and in
absence of any serious dispute regarding occurrence of this incident, it is
not necessary for this Court to dwell upon the same in greater detail.
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77 It also appears from testimony of PW206 that quarrel was
picked up with Mehbub Latiko / Latika and Siddik Bukkar after arrival of
the train at platform No.1. Testimony of PW199 Prabhatbhai Unabhai
(Unarmed Police Constable), who was deployed for Bandobast on the
railway station from 26/02/2002 testifies that Siddik Bukkar and Siraj
Rickshawala showed him the injuries sustained by them and complained
to him that some Karsevaks had beaten. It appears that the above
incident gave rise to commotion and unrest on the platform which is
borne out from testimony of PWs82, 120, 97, 136, 82, 113 and 233.
78 Witnesses being PW86 who deposes having been advised to
close the doors and windows of the coach as the stone pelting was
apprehended, PWs85 and 78 deposes having heard the shouts from
engine side that the stone pelting is done, PW78 who heard that PW86
who also learnt that there would be stone pelting, a suggestion was
made to him to close the doors and windows and when the doors and
windows were being closed, stone pelting started, PW96 who got down
at the platform and heard that the stone pelting is being done. Several
other witnesses deposes to stone pelting either during official halt of the
train after its arrival at platform No.1 or when it started moving.
79 From the above discussion, it is clear that the above two
undisputed incidents and advent of the mob on the call given by the
accused – Mehbub Latiko, the initial point of the main incident of assault
on the train and the ultimate burning of S6 coach.
80 One of the charges however against the accused was they
having taken that they had entered into a criminal conspiracy on the
previous night to burn coach S6 and that the accused grabbed
opportunity of occurrence of the incident of harassment to PW183 and
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capitalized on that by misguiding the mob that PW183 was being
kidnapped in the train; whereas in fact she was safe in the booking
office. At this stage suffice it to observe that the incident of teasing or
harassing PW183 was a spontaneous sudden incident and was
admittedly not a part of conspiracy and simultaneous occurrence of
other incident i.e. beating of Siddik Bukkar and Siraj Rickshawala by
Karevaks was also spontaneous and sudden incident and reaction of
Mehbub Latiko of running on to the top of the hill and shouting for help
as also Siddik Bukkar and Siraj Rickshawala complaining to PW188
were spontaneous reaction of a prudent man who would have behaved
in the aforesaid fashion in the similar circumstances.
What happened after movement of the train, its chain pulling
and halt at parcel office:
81 As discussed above, after the incident of harassment of PW
183 and beating of Siddik Bukkar and Siraj Rickshawala, stone pelting
was apprehended and in fact stones were pelted during the official halt
of the train and on when it started moving.
82 As indicated above, PW85 heard shouts from the engine
side that the stone pelting was being done on the train. If his deposition
is further perused, he saw the mob pelting stones from outside street.
The factum of arrival of the mob at that juncture gets corroboration from
PW81 Pujaben Bahadursing Kushwa (mob omission) and PW164
Mohan Jagjitsing Yadav, a Police Constable, who was deployed as such
between 26/02/2002 and 27/02/2002.
83 PW97, PW164 (pelting omission), PW152 (pelting
omission), PW138 (pelting omission), PW126, PWs82, 85, 97 and
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113 bear testimony of the commotion and stone pelting.
84 During the official stoppage of train; evidence of other
witnesses being PWs77, 82, 84, 87, 91, 92, 94, 95, 98, 99, 102, 103, 78,
86, 89, 120, 79, 81, 113, 202, 152, 154, 155, 159, , 172, , 138, 228,
136, 135 and 127 bear testimony to stone pelting after the first chain
pulling near the parcel office where the train had stopped. During the
stone pelting the people were closing the doors and windows (PW86)
and that juncture windows were closed by some of the passengers (PW
81) and were reopened after the restart of the train (windows omission).
The evidence of the above witnesses demonstrate a natural conduct of a
person of closing the doors and windows for safety when attacked and
opening of the doors and windows when relieved of the attack. It is
seen from the above evidence that during movement of the train after its
official stop and its halt at parcel office, mob had arrived and had started
pelting stones and the witnesses, in order to save themselves were either
in the process of closing windows and / or had closed windows and
doors and reopened and were closing or had closed when again attacked
at parcel office.
85 That initially formation of unlawful assembly,
commencement of pelting of stones then throwing of acid bulbs and
burning racks and attacking the train may be due to incident of
molestation of PW183 and spontaneous reaction to some extent, but an
overt act of participation in the crime by members of unlawful assembly
in setting the coach S6 on fire with conspirators in furtherance of the
object and conspirators and irrespective of any knowledge about
intention and object of the conspirators, such members of unlawful
assembly and their role clearly emerge on record and that can be
gathered from the very fact that such members armed with deadly
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weapons like dharia, sword, guptis, iron rods and even acid bulbs and
burning rags sufficient enough to hold them guilty of the crime. That
reasons recorded by the Trial Court in believing the evidence qua such
members of unlawful assembly and convicting them for offence under
Section 302 and other offences of the IPC and sentencing them for life
imprisonment is enough evidence appears on record. We have also
referred to such evidence while referring to the evidence of injured
passengers and other witnesses viz. RPF, GRPF, GTP, fire brigade and
railway personnel, who were present at the scene of offence.
PART XIIF
FOR THREADBARE APPRECIATION OF EVIDENCE AND NATURE OF
CONFESSIONAL STATEMENT OF JABIR BINYAMIN BEHRA AND
STATEMENTS OF WITNESSES VIZ. RANJITBHAI JODHABHAI PATEL
PW224, PRABHATSINH GULABSINH PATEL PW231 AND SIKANDAR
MOHAMMAD SHAIKH PW237 RECORDED BY RAJNIKANT KHODIDAS
PARMAR, PW246, THE THEN CJM, GODHRA, STATEMENT OF
AJAYKUMAR KANUBHAI BARIA, PW236 UNDER SECTION 164 OF
THE CODE, 1973 RECORDED BY AMBALAL RANCHODLAL PATEL,
RAILWAY JUDICIAL MAGISTRATE, GODHRA PW207 AND THEIR
TESTIMONIES BEFORE THE TRIAL COURT ON WHICH PROSECUTION
HAS HEAVILY RELIED AND OPPOSED TOOTH AND NAIL ARE
REPRODUCED HEREIN BELOW FOR OUR ANALYSIS FINDINGS
ABOUT LEGALITY, VALIDITY AND WHETHER SUCH EVIDENCE IS
ADMISSIBLE, INSPIRING CONFIDENCE, TRUSTWORTHY AND
RELIABLE FOR WHICH WE HAVE FOCUSED ON TRUTHFULNESS AND
VOLUNTARY ASPECTS OF SUCH STATEMNETS AND PROCEDURE
FOLLOWED UNDER SECTION 164 READ WITH SECTICTION 281 OF
THE CODE, 1973:
1 Accused, Jabir Binyamin Behra, in his confessional
statement recorded under Section 164 of the Code, Exh.1469, stated
as under:
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“Name : Jabir Binyamin Behra,
Age : 20 Years.
Resi. : Signal Faliya, Godhra.
Occu. : Cattle grazing
Q Are you willingly giving confession ?
A Yes, I am giving the confession willingly.
Q Do you have any pressure from any one to give the
confession ?
A No, I do not have any coercion from any one to give the
confession. I am giving confession willingly.
Q Whether any Police Officer has misbehaved with you ?
A No, no any Police or other Officer has misbehaved with
me.
Q Do you have fear of Police Custody or any other?
A At present I do not have any fear of Police or that of any
other ?
Q Do you have any fear of getting misbehaved?
A No Sir, at present I do not have any fear about
misbehavior or misconduct with me.
Q Does any one has given you temptation to give this
confession ?
A No sir, no any temptation has been given to me for
giving confession. I willingly give the confession.
Q Do you know that, this confession which you give will be
used against you ?
A Yes sir, I know such fact that, the confession which I
give will be used against me in the case against me.
Q Do you know that, by doing so, you could be given
serious sentences ?
A Yes sir, I know that I could be sentenced with life
imprisonment or death sentence.
Q Despite of knowing all these facts, you give this
confession ?
A Yes Sir, I am giving confession after knowing all these
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facts.
After taking the answers as above, the accused has been
explained that, by giving such confession you could be
sentenced, then also the accused has stuck to give confession.
Hence, the accused has been given time of 24:00 hours for
thinking again, which has been willingly accepted by the
accused, and the signature to that effect has been made by
the accused before the Court in open Court.
Signature of the accused : LHT impression of Binyamin
Before Me,
sd/ (illegible)
Chief Judicial Magistrate,
Panchmahal, Godhra.
Dt. 04022003
The accused has been given the time of 24 hours to think again for
giving confession. He should be produced before the court
tomorrow on 05022003 at 11:00 o’ clock.
sd/ (illegible)
Chief Judicial Magistrate,
Panchmahal, Godhra.
11:35 04022003
Dt. 04022003
The accused Jabir Binyamin Behra has been produced before
the court at 11:30 o’ clock. He remained present in the Court
yesterday on 04022003 and was stated to give the
confession as per section 164 of Cr.P.C., the said accused was
given the time of 24 hours for thinking again (________) and
has been produced today before the Court.
The procedure was started further as the accused Jabir Binyamin
Behra has remained present before the Court.
Q Have you been given the time of 24 hours for re
thinking?
A Yes, Sir. Page 779 of 988 Uploaded by P. SUBRAHMANYAM(HC00165) on Fri Oct 13 2017 Downloaded on : Thu Jan 30 16:49:56 IST 2025 NEUTRAL CITATION R/CC/1/2011 CAV JUDGMENT undefined Q Do you want to confess? A I want to give the confession. Q Do you willingly want to give this confession? A Yes, Sir. Q Have you came to give such confession due to any
threat, allurement, promise, or temptation ?
A No Sir, I am not given any such temptation, threat,
promise or allurement.
As the accused has replied aforesaid questions during his
deposition, it has been found that the accused is conscious and
he is willing to give confession voluntarily. Therefore, it has
been started to note down confession of the accused in my own
handwritings which follows as under.
My name is Jabirbin Yamin Behra. My age is 20 years. I graze
buffaloes. I reside in Signal Faliya, Godhra.
On 26th, I was having tea at the hotel of Posty. I was having
tea there at 900 hrs in night on 26th, i.e. on the previous
day of the occurrence of Sabarmati massacre. At that time,
Salim Panwala, Shaukat Lal and Salim Jarda came to me
and said that ‘come, Razak Kurur is calling you.’ I went with
them. I asked Razak as to why he called me. Razak told that I
have not called you and therefore those three persons started
making fun of me. I told them as to why they were making fun
of me. At that time, Salim Panwala told that we have to bring
petrol. Razak said that do not discuss here. Razak said that go
to upstairs in room No.8. Therefore, we went upstairs. We
were having tea brought from the hotel of Ahemad Husain
Bhola. Thereafter, Razak Kurkur came upstairs. He said that
we have to go to bring petrol. I asked as to why petrol is to be
brought. At this time he said that you go and bring petrol. We
got down from there. A parrot coloured small tempo was
there in which seven carboys were kept. I shouted for Siraj
Bala therefrom. Salim Panwala told him that he has to drive.
Therefore, Shaukat Lal, Salim Jarda and I sat at the back side.
Salim Panwala was sitting with Siraj Bala. Razak had reached
to the petrol pump on his M80. After going there, we saw that
Razak was standing at the petrol pump. Salim Panwala went
inside the room. I do not know as to what he discussed after
going therein. It was a room of the petrol pump. The managerPage 780 of 988
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gave a sign to the labourers indicating to give petrol. Siraj Bala
went near the pump with the small tempo where 7 carboys,
each having capacity of 20 liters were filled and given.
Razak left with his M80. We returned taking petrol. This
petrol pump belonged to Kalabhai. From there, we went to a
street situated behind Aman Guest House with the small
tempo. Imran Sheru, Hasan Ahemad Lalu, Mehbub Khalid
Chanda had arrived there. We unloaded the said petrol in
the room of Razak Kurkur. At 1130 hrs. i.e. at half past
eleven , we went to a pan parlour where Bilal Haji and
Faruk Bhana had arrived. This pan parlour belonged to Razak
Kurkur. They told us that we have met the Maulvi. The Maulvi
has said that Sabarmati train is coming from Ayodhya; burn its
coach No.6. Saying this much, he went in the room of Razak.
After some time, Salim Panwala came out side. We asked him
as to where he was going. At this time he told that he was
going to ask whether Sabarmati Train is running late or on
right time. We told him to return earlier. After some time, he
returned and said that the Sabarmati train is late by four
hours. From there, he returned to his room. At about 145 hrs
he came outside and told that you all go to your houses and
sleep. Come at 600 hrs in morning.
At 600 hrs in morning on 27th, I went there and stood near
Aman Guest House. I saw that the panparlour of Razak had
already opened. His servant Sadik was sitting there. Within
some time, Shaukat Lalu and Salim Panwala arrived there.
They told that come, let us go to the house of Razak. We
went to the house of Razak and were watching T.V. I came
out at about 700 to 715 hrs. I was standing near S.T.D.
After some time, the Sabarmati Train arrived. Mahebub
Latifa came there by running. He stopped near the wall of
platform No.1 and started shouting that ‘they are beating,
they are beating.’ I ran and went to inside and saw that the
office at backside was being pelted with stones. I came
outside by running. Irfan Patariya, Yakub Patariya, Rafik
Bhola, Hasan Lalu, Yunus Ghadiyali were pelting stones on
the train from the road situated outside. Shaukat Lalu came
from there by running. He told that you all come after me.
Hasan Lalu, Mehbub Latifa and I went after him. Shaukat
Lalu entered the street where Aman Guest House was
situated where he talked with Razak, Iliyas Husain and
Mulla. Razak made a gesture towards us from there. When
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Lalu caught hold of his hand and said, ‘come’. We all
reached there by running where Razak Kurkur and Salim
Panwala came outside of the room from backside door. At
that time, Imran Sheru, Irfan Bhola and Shaukat Lalu took
out carboys from the room of Razak and loaded them in the
small tempo. Razak Kurkur said, ‘go behind ‘A’ cabin with
the small tempo.’ At that time, my brother Ramzani was
driving. Mahebub Latifa and Shaukat Lalu were sitting
behind him. Imran Sheru, Rafik Bhatuk, Yunush Gadiyali,
Irfan Bhola and I were sitting at the backside. Ajay Bariya
was standing there only. Shaukat Lalu made him sit in the
vehicle by abusing him. Our tempo was going towards Ali
Masjid. I turned back and saw that Salim Panwala was
coming with his M80 and Razak was sitting behind him
with carboy. He was sitting in reverse position. Sound was
being heard from the Masjid at that time. It was being heard
from Ali Masjid. ‘Allaah ho Akbar, Islam is in danger.’ From
there, we reached behind ‘A’ cabin with the tempo where
Salim Jarda had arrived. Shaukat Lalu ran from there with a
carboy and he shouted that you all come after me with
carboys. We all ran after him and went to the place where
Anar Kalandar Anvar Bala, Yunush Ghadiyali, Irfan Patariya
were standing near Coach S2 with sticks, pipes and scythes
in their hands. They were breaking closed doors and
windows of the Sabarmati Train. Meanwhile, a mob of about
250 to 300 persons of our community arrived there. We had
gone in the middle of coach No. S6 and S7. Irfan Patariya,
Yunush Ghadiyali, Anwar Kalandar, Anwar Bala and Mehbub
Pocha all followed us and came at the coach No.6. Carboys
were placed on the ground at that place. At that time,
Mehbub Latifa made holes in the carboys with a knife
without wasting time. Thereafter, partition of canvas
between S6 and S7 was torn. Mehbub Latifa entered first
from there and I entered after him. We saw that the inside
iron door was closed. We broke it by kicking. Shaukat Lalu
lifted two carboys and gave us. I threw away the knife which
was in my hand. I caught those two carboys. We went inside
and Shaukat Lalu followed us. He opened the door of the
side of ‘A’ cabin from where Imran Sheru, Rafik Bhatuk and
Shaukat Lalu entered with carboys of petrol. Hasan Lalu and
Irfan Patariya were sprinkling petrol from outside through
broken windows. At that time, we got down off side. The
coach caught fire immediately. The passengers were running
here and there. We caught one passenger out of them andPage 782 of 988
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beat him up. Ashik Husain, nephew of Shaukat Bibino and I
robbed gold rings and chain of one passenger. One ring was
given to me out of them. We six to seven persons ran after
one man and cordoned him. Imran Sheru, Siddik Moriya,
servant of Mala Garage and I caught him. There person told,
‘do not kill me, I am an armyman.’ We asked him, ‘do you
have any proof that you belonged to Army?’ He took out one
paper from his pocket. Salim Bhatuk was standing near us.
We told him, ‘take, read this.’ He read it over and said that
he belongs to Army. I asked as to what was his name. He
said, ‘Govindsinh.’ At that time, the servant of Mala Garage
had a rod in his hands. He gave a blow on the head of that
person with the rod saying, “sala, he is a Hindu.’ Suddenly, a
stone was hit from somewhere on the forehead at upper
part of right eye. Sulim ran towards Usmani Masjid taking
that armyman with him. Police arrived there at that time.
Seeing the police, I ran away. A boy named Ishak Durga of
my street met me in Polan Bazar. I told him, ‘come, let us go
to hospital.’ We went to hospital of Jubed Mamaji. Taking
help of his compounder, three stitches were taken. After
giving medicines, he charged Rs.50/. From there, I directly
went to home. After some time, I heard that curfew has
been imposed in Godhra due to riots. I did not come out of
the house. On second day I came to know that Hasan Lalu
had thrown a burning piece of cloth and thereafter we
started running helterskelter. After throwing this burning
piece of cloth in the coach, we started running helter
skelter.
Thereafter, we went to maulvi Husain Umarji. He told us that
you are not supposed to go to police without asking me. We
give Rs.1500/ to the persons who have been caught from
there. I have not received this amount.
On next day, I went to maulvi Husain and told him that ‘my
wife and children are dying of hunger and I will appear before
the police.’ At this time, he said that these people are arrested.
Once they get released on bail, you appear before the police.
Do not appear before the police at present. Otherwise you
won’t get released. Clothes worn by me were old and got torn
and hence I threw them. The ring was given to me after about
twothree months. Shaukat Bibino and I went to Anand to sell
the ring. It was sold in Rs.2000/. I spent those money.
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The above confession has been read over to the accused Jabir
Bin Yamin Behra in the open court. As he is illiterate, thumb
impression of his left hand has been taken before the court.
Thumb impression of left
hand of Jabir Bin Yamin Behra.
[Emphasis supplied]
It is hereby certified/given yadi that it has been explained to the
accused Jabir Bin Yamin Behra that he is not bound to make the
confession and if he does so, the confession made by him can be used as
an evidence against him in the case. On the basis of the answers given by
him for the questions asked to him, I believe that the said confession was
made voluntarily. It has been recorded in my presence and in my own
handwritings. It was read over to the said accused and he admitted the
same to be true and it contains complete and correct report of the
confession. The accused has thumb impression of his left hand for the
same in my presence in the open court”.
2 Ranjitbhai Jodhabhai Patel, PW224 in his statement
recorded under Section 164 of the Code, Exh.1470, stated as under:
“The Additional Sessions Judge of Godhra, namely Shri K. C.
Kela gave imperative instruction on 26203, and as the
Prosecution Witness Ranjitsinh Jodhabhai Patel, Resident of –
Sampa (Kundala), Ta. Godhra, Dist. Panchmahal appeared in
respect of the offence registered at Godhra Railway Police
Station vide I C. R. No. 92002 punishable u/s 143, 147, 148,
149, 337, 338, 332, 186, 435, 153 (a), 120 (b), 302 and 307
of I.P.C., Sections 141, 150, 151 and 152 of Indian Railway
Act, Sections – 3 and 4 of The Prevention of Damage to Public
Property Act, Section – 135 (1) of Bombay Police Act, and
Section – 3 (2) (3) of The Prevention of Terrorism Act, 2002, it
was asked to record statement as per Criminal Manual and
Section – 164 of Cr. P. C.Page 784 of 988
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The said witness Ranjitsinh Jodhabhai Patel, Resident of –
Sampa (Kundala) Ta. Godhra Dist. Panchmahal, appeared
today to give his statement before me, R. K. Parmar, the Chief
Judicial Magistrate, Godhra, Dist. Panchmahal. Hence, his
statement has been recorded as per Section – 164 of Cr. P. C.,
which is as under.
Name - Ranjitbhai Jodhabhai Patel
Age - 36 years
Occupation - Farming
Resident of - Sampa (Kundala), Ta. Godhra.
Q Is it true that you have come here to depose voluntarily?
A Yes, sir, I have come to give deposition voluntarily.
Q Do you want to give the deposition willingly?
A Yes, sir, I want to give deposition willingly.
The Learned Court administered oath to the said witness and
accordingly the witness has given deposition on oath as under
and has given the following replies.
Q Do you want to give the deposition willingly?
A Yes, sir, I want to give deposition willingly.
Q You are not bound to give such deposition. Do you still
want to depose?
A Yes, I want to give deposition voluntarily.
Q Is your deposition being taken privately right now as per
your application?
A Yes, I am giving deposition privately at present.
Q Are you afraid of police or do you have fear of it?
A No, sir, I have no fear of police.
Q Has the police misbehaved for giving this deposition? Or
has it pressurized in any way?
A The police has not misbehaved with me in any way. I
have not been pressurized in any manner or no mal
treatment has been meted out to me.
Q Have you been offered any temptation for giving this
deposition?
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A No, sir. No temptation has been offered to me for giving
deposition.
Q Has any enticement, threat or promise been given to you
for giving deposition?
A No, sir. No temptation, enticement, threat or promise
has been given to me for giving deposition. I have not
been told of being benefitted in any way.
Q Despite this fact, are you giving the deposition willingly
and voluntarily?
A Yes, sir. I am deposing voluntarily and willingly.
Q Do you require time for rethinking for giving
deposition?
A No, sir. I do not need any time for rethinking.
Deposition of the Witness on Oath
I was serving at the petrolpump of Haqim Miyan. It is
known as the petrolpump of Kalabhai. This petrolpump is
situated at the entrance of Signal Street. I had been serving
on this petrolpump since last three years. My officehours
started at 600 hours in the evening on 2622002, I
reported my presence at that time. Prabhatsing Gulabsing
was also there with me on duty. Prabhatsing was doing the
work of receiving money and I was giving petrol. On that
day, at about 1000 hours, the owner of Aman Guest House
namely Rajaq Kurkur came by M80. He went in the glass
cabin directly and seated there. One rickshawtempo came
after it. The said small tempo was of green colour. Siraj Bala
was driving the said tempo. Salim Paanwala was there with
him. Shaukat Lalu, Siraj Jarda and Jabir – these three were
sitting on the backpart of the tempo. Salim Paanwala went
into glasscabin and talked to Prabhatbhai about petrol.
Thereafter, he came out. Thereafter, Prabhatbhai told me
that ‘fill 140 litres of petrol for this person’. Thereafter, I
filled 140 litres of petrol in the 7 carboys which were there
in the tempo. Thereafter, they went away.
Thereafter, on the next day, it came to be known that stone
pelting took place on the railwaystation in the morning.
Thereafter, our boss Ajgaribhai came to the petrolpump.
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may take place, and so, it would be good if you drop me up to
the Chowki No. 7. Thereafter, Ajgaribhai had come to drop up
to Chowki No. 7. Thereafter, I went home. When I read
newspaper on the next day, I came to know that as many as 58
women, children and men have succumbed to death in fire in
the coach. Thereafter, on 1042002, the police called me
when I was asked by them as to whether anyone took petrol
from your place in small or big containers on 27th of date in
the morning, to which I replied in negative, because, we had
not given petrol to anyone in the morning in retail in small
or big containers. When the police arrested a person named
Jabir Binyamin after some days, he confessed in the Court
that I had taken 140 litres of petrol from the petrolpump of
Kalabhai, this confession made by him is true. I had seen
him when he had come for taking petrol at night.
Hence, I request You, the Officer that I have to live in the area
of Godhra, and there is much population of Muslims around.
Hence, there is risk of my life. Hence, I request You, the officer
that my statement is kept confidential.
Sessions Case No. 6909, Exh. 1470.
I again request that my statement is kept confidential. My life
is at risk.
The above deposition of mine has been written as dictated by
me. I have read the same and it is true.
Sd/ Ranjitbhai Jodhabhai Patel
I, the Chief Judicial Magistrate, Godhra, Dist. Panchmahal,
namely R. K. Parmar, hereby certify and state that The Prosecution Witness Ranjitbhai Jodhabhai Patel appeared
before the Court of the Chief Judicial Magistrate for giving
deposition. At that time, he was given the understanding that
he is not bound to give deposition, and it was asked to the
effect that ‘are you deposing in spite of that?’ He replied in
affirmative and he has given deposition. The said deposition
was recorded in my presence as dictated by the witness. The
same was read over to the witness in his presence and he
himself also read it. The witness has admitted of its being true
and the deposition given by him has been recorded. It is truePage 787 of 988
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and its report is true. He gave an application for keeping the
deposition confidential, the same has been granted”.
3 Statement of Prabhatsinh Gulabsinh Patel PW231
Exh.1471 recorded before the Chief Judicial Magistrate of Godhra, reads
as under:
“On 26022003, Additional Session Judge of Godhra Shri K.C.
Kella directed to record the statement of prosecution witness
Shri Prabhatsinh Gulabsinh Patel, a resident of Dharolakhurd,
Taluka Shahera, District Panchmahal, as per Criminal manual
and Section 164 of Cr.P.C., in the case of ICR No.9/2002
registered at Godhra Railway Police Station registered for the
offence u/s 143, 147, 148, 149, 337, 338, 332, 186, 435, 153
(a), 120 (b), 302, 307 of IPC and u/s 141, 150, 151, 152 of
Indian Railways Act and u/s 3, 4 of The Prevention of Damage
to Public Property Act and u/s 135(1) of Mumbai Police Act
and u/s 3(2) of The Prevention of Terrorism Act2002.
Witness Prabhatsinh Gulabsinh Patel resident of DharolaKhurd
has appeared before me R.K. Parmar Chief Judicial
Magistrate of Godhra, District Panchmahal to record his
statement. His statement as per Section 164 of Cr.P.C. has
been recorded, which is as under.
Name: Prabhatsinh Gulabsinh Patel, aged about 28 years,
BusinessNil, Resident DharolaKhurd, Taluka Shehra, District
Panchmahal.
Q Is it true that you have come here to submit your
deposition willingly.?
A Yes. I have come willingly.
Q Are you dictating your deposition voluntarily?
A Yes. I want to dictate my deposition voluntarily.
This witness has submitted his deposition before this Court.
Q Do you want to dictate your deposition willingly.?
A: Yes. I want to dictate my deposition voluntarily.
Q Though you are not bound to depose, you still want to
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dictate your deposition?
A Yes. I want to submit my deposition voluntarily.
Q At your request, is your deposition being recorded
privately.?
A Yes. At present, I am deposing privately.
Q Have you any fear of Police.?
A No. I have no fear of Police.
Q Have the police misbehaved with you or pressurized you
to depose?
A Police have not misbehaved with me or pressurized me.
Q Have you been offered any temptation or benefit to
depose?
A I have not been offered any temptation or benefit to
depose.
Q Have you been offered any temptation, threat or promise
to depose?
A No. I have not been offered any temptation, threat or
promise. I have not been promised for any benefit.
Q Despite this, have you come here to depose voluntarily ?
A Yes. I have come to depose voluntarily.
Q Do you need any time to reconsider about your
deposition.?
A No. I do not need time to reconsider.
Deposition of witness on oath.
I had been working at the petrol pump of Hakim Miya,
which is also known as Kalabhai’s petrol pump since last
three years, which is situated at Singal Faliya in Muslim
area. On 26022002, I came to my duty at 06:00 hrs in the
evening. At that time, Mr. Ranjitbhai Jodhabhai Patel was
also present with me as a deliveryman. As there were not
many customers at night, I was seated in the glasscabin
made at petrolpump. At that time, my work was to collect
money. During that period at 10:00 in the night, when I was
seated in the cabin, Razak Kurkur came on M80 and seated
in the cabin before me. Thereafter, a green coloured
rickshaw came at the petrolpump and Salim Panwala who
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was seated near the driver seat gotoff the rickshaw and
came to me. Thereafter, Salim Panwala told me that I want
140 liters of petrol. Then, he gave me money for 140 liters
of petrol. Thereafter, I told him that Ranjitbhai Jodhabhai
Patel is standing outside and tell him that I have given
money, so that he will give petrol. Thereafter, I also went
out with Salim Panwala and went near the petrol pump. I
told Ranjitbhai that his money for 140 liters of petrol has
been received, therefore, give him petrol. Jabir Binyamin,
Saukat Lalu and Salim Jarda were sitting in that rickshaw
tempo. After Ranjitbhai gave the petrol, those persons went
away after taking the rickshaw tempo. Thereafter, Razak
Kurkur also went after them taking his M80.
Thereafter, on the next morning, that is, in the morning of
27/2/2002, we came to know that some stone pelting has
taken place near Railway Station and something like riot has
occurred. Having known such, we called our employer
Ajgaribhai by making a phone call. Thereafter, Ajgaribhai came
to petrol pump and then we told that it appears that riot has
taken place, therefore, drop me up to police chawki number
seven. Thereafter, they dropped me at police chawki number
seven, and from there, I went to my home. Next day in the
morning, I read in the newspaper that the coach of Sabarmati
Express has been burnt, wherein around 58 women, men, and
children have died due to burning and others have sustained
burn injuries. Thereafter, our petrol pump remained closed.
When the police had recorded my statement on 10/04/2002,
they asked me as to whether I had sold the petrol in the
carboy on 27/02/2002, I had denied it. The fact is true that
on that day I did not sell the petrol in the carboy. But, had I
been asked whether anyone has purchased petrol in carboy
during night time on 26/2/2002, I would have answered,
but the Police did not ask.
Recently before some days, I read in the newspaper that the
person namely Jabir Binyamin, who has been involved in the
offence of Sabarmati carnage, has stated while admitting the
offence that at night on 26/02/2002, they had brought petrol
from Kalabhai petrol pump, therefore I hereby declare the fact
today before your honour that the above mentioned persons
had taken the petrol. Since I have to visit Godhara for the
business purpose and as I am afraid of Muslim people and
there is a risk on my life, therefore it is my humble request to
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keep my such statement confidential.
Above deposition has been written as per my dictation, I have
read the same and it is true.
Sd/
Patel Prabhatsinh Gulabsinh”
4 Sikandar Mohammad Sidak Shaikh, PW237 in his
statement recorded under Section 164 of the Code, Exh.1253 stated as
under:
“Today, on 22/9/03, Monday, during the investigation in the
case of Deputy Superintendent of Police, Western Railway,
Vadodara Section, vide O/w. No. Godhra
investigation/6752/03, Godhra Railway Police Station I CR
No. 09/02 u/s 302, 307, 120(B) of IPC and Sec. 3(2)(3) of
POTA 2002, witness Sikandar Mohmmad Sidik, age 19 yrs,
originally residing at Indore, Gandhinagar and Basera,
presently residing at Surat, Rander, Ikbalnagar slum area, is
willing to give statement in connection with eyewitnessing the
aforesaid incident. As he has been produced before me, R. K.
Parmar, Chief Judicial Magistrate, Godhra, Dist. Panchmahal, I
have recorded the statement. It follows as under in my
handwritings. Time : 0405.
Q Can you read, write and understand Gujarati?
A He could not answer the question completely in Gujarati
asked by the Chief Judicial Magistrate and he informed
that he could not speak Gujarati properly. Therefore, as
he requested to ask questions in Hindi national language
and to answer them in Hindi national language, the
witness has been asked questions in Hindi language and
their answers have been recorded in Hindi.
Q What is your name?
A My name is Sikandar Mohmmad Shaikh.
Q Age?
A. 19 years
Q What is your address?
A Earlier address : Indore, Gandhinagar, New Basera,M.P.
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At present Surat, Rander, Ikbalnagar Slum area.
Q Have you been forced to come before the court? Or have
youbeen threatened to be beaten or have you been
misbehaved?
A. The police has not threatened me or they have not
forced or they have not misbehaved with me.
Q How much have you studied?
A 1st Std. in Hindi.
Q How are you going to give the statement?
A I am stating what I have seen. I am stating willingly.
Q If you wish you cannot give the statement.
A No sir, I want to state whatever I have seen.
Q Now you are giving statement in the open court; do you
feel
any fear of police or pressure?
A No sir, I have no fear or difficulty. I am not feeling the
same.
Q You can still deny giving the statement.
A No sir. I don't want to say no. I want to say whatever I
have seen.
Q Have you been tempted or induced for giving a job in
order to give this statement? Or have you been tempted
to give any reward?
Q Have you got ready to give the statement willingly?
A Yes, I am stating the facts willingly.
Q Before coming to the court, were you in police custody?
A No sir, I have just come yesterday.
Q How have you answered all these questions?
A I have answered them after understanding.
Before one day of the Godhra Sabarmati massacre, I was
returning after selling water pouches at Godhra Railway
Station. At about 900 to 930 hours in night, I was goingPage 792 of 988
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home via Signal Faliya road. Jabir Bahera and Soyeb Kalandar
were sitting at the hotel of Posti and I know them as both of
them are hawking at Godhra Railway Station. Thereafter, I
went to my home and slept after having dinner. On next day
morning I was sleeping at my home. When this massacre took
place, I was sleeping at home. It was about 745 hours in
morning. My familymembers woke me up and said that
uproar has taken place outside. Thereafter, I got up and went
to the pond via kachcha road. At that place, I saw that a train
was standing near ‘A’ cabin. People were pelting stones on it
and they were damaging it. Meanwhile, announcement was
made from Ali Masjid. “Allah ho Akbar, Allah ho Akbar, Islam
is in danger, masjid has been burnt, kill, kill”. This was voice of
the maulvi named Yakub Punjabi. Then I was going by running
through kachcha road; I saw a parrotcoloured small tempo
standing there on the road. Thereafter, I reached near ‘A’
cabin. At that place, I saw that Rajaq Kurkur, Bilal Badam,
Hani Badam, Sidiq Badam, Yakub Patadiya, Aiyub Patadiya,
Qadir Patadiya, Faruk – brotherinlaw of Rajaq Kurkur,
Rahub Kamli and Salim Panwala were damaging the train.
Rajaq Kurkur owner of Aman Guest House and Salim
Panwala had something like petrol in carboy. Rajaq Kurkur
and Karim Panwala climbed on the coach of the train. Rajaq
Kurkur and and Salim Panwala had supported from back
side. There were windows near door where passengers sit.
Rajaq Kurkur poured liquid from carboy from the window.
Meanwhile, Mehbub Latika, Jabir Behra and Shaukat Lalu
went to the partition situated in the middle of coach.
Mehbub Latika split the partition with a knife. Mehbub
Latika, Jabir Behra and Shaukat Lalu went inside with
carboys and remaining persons were standing below. Rafiq
Bhatuk, Irfan Bhopa, Imran Sheru, Hasan Lalu, Rahub
Kamli, Irfan Pataditya and Aiyub Patadiya were standing
below the coach. Meanwhile, the door got opened from
inside. Thereafter, Rafik Bhatuk, Irfan Bhopa, Irfan Sheru and
others hurriedly entered in the coach with carboys. I was
watching all these things standing on a heap of stones. I was
near the coach on heap of stones. Meanwhile, Faruk Bhana
and Bilal Haji arrived there. At that time, Hasan Lalu, Ramjani
and Irfan Patadiya were pouring liquid like petrol from
broken windows of the coach. Meanwhile, Hasan Lalu burnt
a rag of cloth, lifted it with the help of stick and threw it in
the coach through a broken window. Suddenly fire broke out
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screaming. Thereafter, police arrived there and public started
running. I also ran from there and I was passing through the
road situated near Ali Masjid. At that time, I saw maluvi Yakub
Punjabi on the terrace of Ali Masjid. Thereafter, I ran in the
farms. I kept wandering in the farm for the whole day. In the
evening, as it got little dark, I returned home. At this time I
heard that many persons have died in the train due to burning.
Communal riots have broken out in Godhra and curfew has
been imposed in Godhra. As I heard all these, my mother,
sister and brother went to the street due to fear. We were
looking for a house on rent; we got house of Faruk. We stayed
in that house for about six to seven months. Thereafter, we
went to Surat from there. When we were living in Godhra, I
knew Husain Umarji maulvi who was living at Vejalpur road in
Godhra. Because, his elder brother had a saw mill near Ali
Masjid. He used to come there sometimes. He used to come for
Namaz in Ali Masjid sometimes. I used to go to the saw mill to
buy woods in order to cook food at home. I used to see Husain
Umarji Maulvi there. He also used to come for Namaz in Ali
Masjid and because of this reason I know him. When we were
staying in Godhra, Husain Umarji Maulvi used to give
Rs.1500/ per month to the persons who had burnt the
coaches. I had heard this fact and therefore I had gone to him
for help. We are fakir and therefore I had gone to him so that
he may help me. He told me that it is not for you. This is for
the persons who have burnt the coaches and for the Ghanchis.
Thereafter, the mualvi gave me Rs.200/ and said that don’t
say anyone else about what you had seen. I returned home
with Rs.200/. After some days I again went for help but he
was not available. Thereafter, we stayed in Godhra for some
days. Thereafter, we went to Surat. We got land at concession
from the government. We are living there making a hut. Since,
we have come to Surat, we have not received any help from
Husain Umarji maulvi or I have not gone to him for help. I
have not burnt any coach or I have not caused any damage.
These are my true facts. I can speak Hindi. I can understand
Hindi. I cannot speak Gujarati. I can understand Gujarati.
These are my facts. I have told you all true facts. I do not know
anything else apart from this.
Sd/ Sikandar Mohammad
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4.1 I have explained the witness Sikandar Mohammad Sidik
that he is not bound to give the statement. In future, your confession can
be used as evidence against you. Despite the fact, he has willingly given
the statement. I have recored the same in my presence and in my own
handwritings. The said statement was read over to him. He admitted it
to be true and it contains report of the statement made by him”.
4.2 We have produced confessional statements of Jabir
Binyamin and three statements of Ranjitbhai Jodhabhai Patel PW224
Exh.1470, Prabhatsinh Gulabsinh Patel PW231 Exh.1471 and
Sikandar Mohammad Shaikh PW237 Exh.1253 in this judgment.
5 Rajnikant Khodidas Parmar, PW246, the then CJM,
Godhra in his testimony before the trial court deposed as under:
Examination in chief
“2 When I was present in the Court during my duty hours
on 29/01/2003, Mr. Noel Parmar, Deputy Superintendent of
Police, Western Railway, Vadodara, came before me and stated
that, “One accused, namely Jabir Binyamin wants to admit in
connection with Godhra carnage.” and produced an application
to that effect before me. He stated that, “An application was
made before Mr. A.R. Patel, learned Railway Magistrate, to
produce an accused for confession.”, but Mr. Patel, learned
Railway Magistrate, passed an order that learned Chief
Judicial Magistrate, Godhra has jurisdiction in this regard.
Based on the same, an application was made before me to
seek permission for producing accused Jabir Bahera to give
his confession. Therefore, I admitted the said application
and made a yaadi to Vadodara Central Jail on 03/02/2003
stating that, “The said accused be produced before me at
11.00 hours on 04/02/2003.” Taking into account the said
yaadi, Vadodara Central Jail sent the said accused Jabir
Binyamin Bahera to my court along with police
japta(surveillance) on 04/02/2003.
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[3] The said accused was produced along with police japta
at about 11 a.m. during court hours on 04/02/2003. At that
time, I adjusted my board and started recording his statement
i.e. confession. Before recording this confession, I asked
accused Jabir Binyamin Bahera some questions in the
beginning. I asked such questions that, “Do you wish to give
this confession voluntarily? Do you know seriousness of
confession that you wish to give? It is not compulsory to
give confession. By admitting the confession, which you
wish to give, as evidence, it can be used against you also,
and based on the same, you can get punished also.” In reply
to all these questions, accused stated that, “I am aware of all
these facts.” Further, I asked that, “Do you give this
confession, which you wish to give, under pressure of
anyone or police or under threat, enticement, temptation or
in anticipation of any gain?” While replying, the accused
stated that, “I do not give this confession on account of any
pressure, threat, greed, temptation, and I do not give this
confession in anticipation of any gain or profit.” During this
questionanswer, the said accused Jabir Binyamin was found
to be healthy and having understanding of giving reply.
Therefore, I again asked, “Do you wish to give confession?”
The said witness stated that, “I wish to give confession.”
Therefore, taking into account legal situation, I decided to
give him 24 hours of time for thinking or being more aware
about confession, which he is willing to give, and recorded
statement giving him 24 hours of time. A yaadiletter,
intimating to bring accused on next day i.e. 05/02/2003,
was forwarded to Central Jail, Vadodara. The statement was
recorded in the open court in the presence of only one
policeman and in the absence of police in the court i.e.
without japta. The left hand thumb impression of accused
was obtained in the said statement, and I put my signature
and accordingly, accused was informed and it was stated to
produce him.
[4] Accused Jabir Binyamin Bahera was produced before the
court in my presence at 11 a.m. on 05/02/2003. The board of
my cases was adjusted on the said day and recording of
confession of Jabir Binyamin was started within about ten
minutes. During this, I sent police, accompanied by accused,
out of my court room and allowed only required constables.
I started recording this confession in the open court. I asked
accused that, “Are you sure about your confession? Is there
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any pressure of police upon you?” In reply, the accused
stated that, “I have decided within time limit granted to me
that I wish to give confession and there is no pressure or
fear of police upon me. ” I further asked that, “Have you
received any threat, temptation, enticement or greed?” In
reply, he stated that, “No such gain, temptation or
enticement has been given to me, and I am willing to give
such confession.” Keeping in mind the said fact, recording of
statement was started. I have recorded this statement in my
own handwriting as dictated by accused. This statement has
been recorded in my handwriting and it bears thumb
impression of accused on each page and I have put my
signature. Such has been certified below this confession that
accused has willingly given this statement without any fear,
threat, greed, enticement or temptation, and stating that
such statement can be used as evidence against him, I have
put my signature. As I read over and explained this
confession to accused, he stated to have admitted this
confession, and I have put my signature below it. I myself
got this statement sealed in the cover in my presence and
forwarded the same to learned Sessions Court.
[5] I am shown office copy of yaadi given to Central Jail,
Vadodara vide O.No. 82003 for taking back accused and
producing him again at 11 o’clock on 05/02/2003 in the
case registered vide I C.R. No. 902 at Godhra Railway Police
Station on 04/02/2003. It bears my signature and thumb
impression of accused which I identify, and office copy is
given exhibit no. 1468. After making preliminary inquiry on
04/02/2003, time of 24 hours was granted. A yaadi was
made intimating to produce the accused at 11 a.m. on
05/02/2003, and the said yaadi is on the page no. 1 and 2,
and confession recorded on 05/02/2003 is on the page no. 2
to 10. There is a thumb impression of accused in the margin
of each page of the said confession and at the end of
writing. My certifying signature and seal of Chief Judicial
Magistrate Court, Panchmahal Godhra are in the end, which
I identify. The confession recorded on 05/02/2003 is in my
handwriting. The said original confession is given exhibit
no. 1469.
[6] As per the order of Mr. Kella, learned Additional
Sessions Judge, I recorded statements of witness Ranjitbhai
Jodhabhai Patel and Prabhatsinh Gulabsinh Patel on oath
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under section 164 as dictated by them in the case registered
vide railway C.R. No. 902 after making preliminary inquiry of
them and verifying that, “They are not bound to give
statement, they have not been given any enticement,
temptation or pressure for giving statement.” I am shown
original statements of aforesaid both persons. On looking at
the same, I state that each page bears signature of
concerned witness therein and I have put my signature in
the end making endorsement of certifying the statement.
The signature of both statements and handwriting of
endorsement were identified and the same are given exhibit
no. 1470 and 1471.
[7] As an application was received from Investigating
Police Officer on 22/09/2003 for recording statement of
witness Sikandar Mahmad Sidik Shekh under section 164,
after making preliminary inquiry of witness and giving him
understanding that, “It is not compulsory to get statement
recorded, whether any pressure, enticement or temptation
has been given by police for recording of statement, and
facts of statement can be used in future in the proceedings
against him also”, as witness showed willingness to get his
statement recorded, after making note of preliminary
questions, statement of witness was recorded in his
language as dictated by him. After recording statement and
reading over the same to him, as he admitted the facts of
statement, his signature was obtained in the statement and I
put my signature as before me below the statement in the
end and made endorsement certifying it. Thereafter,
aforesaid statement was forwarded to learned District Court in
the sealed cover. I am shown statement of witness, exhibit no.
1253. On looking at the same, I state that it is in my
handwriting, the fact written therein is true. It bears my
signature, seal and witness’s signature as before me, which I
identify.
Note: The present witness confirmed statement of other two
accused persons u/s 32 of POTA. As Special Criminal Application
was pending in the Hon’ble High Court against order of this Court,
deposition of witness has not been recorded in respect of procedure
carried out in connection with statement u/s 32 of POTA at this
stage.
Cross examination
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by Mr. A.D. Shah, learned advocate
for accused persons
(Accused no. 4, 6, 10, 13, 38, 42, 51, 52, 54, 58, 59, 61, 69,
75, 78, 79, 81, 82, 84, 85 to 86, 89, 91 to 99)
[8] No occasion has taken place for me to record any other
statement u/s 164 prior to present confession statement during
my service. When Mr. Noel Parmar came with application on
29/01/2003 before me for the procedure in respect of
statement, he did not come with accused Jabir Binyamin
Bahera before me. At that time, Mr. Noel Parmar stated me
that Jabir Binyamin Bahera is presently in police custody. I do
not exactly remember as to at what time he gave application
on that day, but he may have given at about one o’clock in the
afternoon. As per my memory, after receiving aforesaid
application, the same was kept pending for passing order
under it after hearing Mr. Noel Parmar. As per my memory,
after submitting aforesaid application, Mr. Noel Parmar once
came before me to make inquiry of order passed under the
application and to collect a yaadi of order passed during the
period of recording statement of accused. I do not exactly
remember as to whether Mr. Noel Parmar came before me for
making inquiry of order passed under the application on
30/01/2003 or not. I do not exactly remember as to on
which date I passed an order under the application
submitted by Mr. Noel Parmar, but the same was passed
before yaadi was made on 03/02/2003. When I passed an
order under the application, I knew the fact as to where
accused is lodged under whose custody. Mr. Noel Parmar
informed me about this fact.
[9] It is true that when accused is in judicial custody, it is
the responsibility of jail authorities to produce him before
the Court. It is true that I wrote a yaadi to jail authorities to
produce accused before me on the adjournment date for
statement. When I passed an order for recording statement,
I was not aware of provisions contained in the Criminal
Manual regarding recording statement under section 164. I
was not aware of as to whether the form for recording
confession statement was given in the Criminal Manual or
not. It is true that when accused is in judicial custody, an
order in respect of producing him before the Court for
recording his statement cannot be made to police officer or
any member of his team. I wrote a yaadi to Central Jail,
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Vadodara on 03/02/2003 to produce accused before me on
04/02/2003. I forwarded one copy of the same to Deputy
Superintendent of Police, Western Railway, Vadodara and
also made note of it in the yaadi. In my opinion, a copy of
yaadi was forwarded to Deputy Superintendent of Police,
Western Railway, Vadodara to make him conversant with
the fact of this yaadi. A copy of yaadi was forwarded
keeping in mind the office of Deputy Superintendent of
Police, Western Railway, Vadodara, but not Mr. Noel
Parmar. No other police officer of the team of this case except
Mr. Noel Parmar has met me during the period from
29/01/2003 to 03/02/2003.
[10] The name of Mr. S.B. Patel, Police Sub Inspector, was
not referred to me. It is true that I wrote a yaadi to Central
Jail, Vadodara wherein it was stated that custody of accused
Jabir Binyamin Bahera be handed over to Mr. S.B. Patel, P.S.I.
I have not recorded name of Mr. S.B. Patel, P.S.I. in the
aforesaid yaadi at the instance of anyone. When Mr. Noel
Parmar came with an application before me on 29/01/2003,
other two or three police personnel were also with him. In my
opinion, I came to know about name of Mr. S.B. Patel in
such a way that when Mr. Noel Parmar came before me in
the Court on 29/01/2003, I found his conduct improper and
thus, as I made Court Staff to inquire about name and
address of other police personnel, I came to know about Mr.
S.B. Patel. It is true that I recorded name of Mr. S.B. Patel in
the yaadi for this reason only.
[11] It is true that Mr. S.B. Patel, P.S.I., came with accused
Jabir Binyamin Bahera before me on 04/02/2003. It is true
that I did not make any inquiry as to how many staff
members of police department and jail were with him on
that day. The witness states that when accused was brought
before me in the Court room, there were eight to ten police
personnel. I do not know as to what was the situation outside
the Court room. There is no note in the statement that I had
stated that I am Chief Judicial Magistrate, Godhra when
accused Jabir Binyamin Bahera was brought before me on
04/02/2003. The witness states that I stated that I am Mr. R.K.
Parmar, Chief Judicial Magistrate, Godhra. On that day, I did
not ask accused as to how long he had been in the police
custody. I did not ask aforesaid accused as to whether he has
given any confession before the police or not. I did not make
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inquiry as to whether any videography was made in respect of
him during police custody or not. I did not state accused that
he is not bound to give confession statement before me when I
made inquiry of him on 04/02/2003.
[12] There is a sub jail at Godhra. I do not have idea as to
how many under trial prisoners could be accommodated in sub
jail at that time. When accused was brought before me on
04/02/2003, he was in judicial custody, and thereafter, he
was in judicial custody on the next day also. It is not true
that accused could have been lodged in Sub Jail, Godhra on
04/02/2003. It is true that custody of accused was handed
over to Mr. S.B. Patel, P.S.I., on 04/02/2003 to take him
back to Central Jail, Vadodara. It is true that a jail yaadi was
forwarded to central jail to produce aforesaid accused
before me on 05/02/2003 wherein I stated that his custody
be handed over to Mr. S.B. Patel, P.S.I. I did not make note
in the record that Mr. S.B. Patel, P.S.I., has produced
accused before me on 05/02/2003. It is true that I have not
made any note in the statement of having ensured that any
police employee involved in the investigation of the case is not
present in the court room or any such police employee is not at
such close distance that he can hear fact of statement before
starting recording of statement when accused was produced
before me on 05/02/2003. I have not recorded in the
statement as to when procedure of recording statement of
05/02/2003 was started and completed. The witness states
that production time has been recorded.
[13] It has not taken place that accused may not have
understood any question asked by me at the stage of
recording statement on 05/02/2003 and I may have asked
him the same question again. Such has not taken place that
accused may have hesitated anywhere at the stage of
dictating fact of statement and a question may have been
asked to him regarding any fact of statement. When I
recorded statement of accused in my handwriting, I was
writing the fact of statement being dictated by accused
speaking the same. Such has not taken place that when I
was recording after speaking, accused may have suggested
any correction in respect of some fact. I am shown statement
recorded by me. On page no. 4 of the said statement, at first
‘Siraj Panvala’ is written, out of these words, “Panvala” has
been struck off and the word “Bala” is overwritten. It is true
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that my initial is not there on the overwriting or no thumb
impression of accused has been obtained there. It is true that
word “pump” has been added by making arrow at the last line
on the same page. It is true that on the page no.7, in the
sentence Salim Panvalo was standing with M80, word
“coming” is overwritten striking off word “standing”. When
thumb impression of accused was obtained in this statement,
court staff and advocates were also present in the Court room.
Thumb impression of accused was obtained in the statement
in my presence, and board clerk has made endorsement for
identification of thumb impression. It is true that the
person, who has made endorsement for identification of
thumb impression, has not put any signature below
endorsement. When statement was recorded, any copy of
statement has not been prepared putting carbon. The
procedure of putting aforesaid statement in the cover and
sealing the same was immediately carried out in my
presence on the same day. Mr. Noel Parmar was not present
before me in the Court room at the stage of procedure of
sealing statement in the cover. At that time, Mr. S.B. Patel,
P.S.I., also was not present in the Court room. No xerox
copy of this statement was made till it was sealed in the
cover. The cover was forwarded to the Sessions Court on the
same day after sealing it. I do not remember as to whether
sealed cover containing statement was forwarded after
putting it in other cover or not. Such has not happened that
Mr. Noel Parmar may have come before me after statement
was recorded on the date of aforesaid statement. I do not
remember as to whether any yaadi was received from Mr. Noel
Parmar on the said day or not. Such has not happened that a
copy of this statement may have been given to Mr. Noel
Parmar on that day based on yaadi. Such has not happened
that I may have given any sealed cover to Mr. Noel Parmar on
the said day. I had not read case diary in connection with
investigation conducted in this case during the period from
29/01/2003 to 05/02/2003. The witness states that the same
was not produced before me. I am shown cover. On looking at
the same, I state that such has not occurred that confessional
statement may have been forwarded in the aforesaid cover.
The witness states that the said cover does not bear my any
signature. On looking at yaadi of railway court, I state that I
had forwarded original cover containing statement of accused
to Railway Court. It is true that no note has been made in the
statement of 05/02/2003 in connection with process as
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recorded in clause 7 and 9 of part II of Criminal Manual Form
No. 35.
Further cross examination adjourned due to completion of
court hours
Date: 26/05/2010 Before me
Sd/(illegible)
(P.R. Patel)
Additional Sessions Judge
Panchmahal Godhra,
Camp: Sabarmati Central Jail,
Ahmedabad
The aforesaid deposition was
read over to the witness and
he admits the same to be true.
Sessions Case No. : 69/09
Exhibit No. 1467
Date: 27/05/2010
Oath administered,
Cross examination by Mr. A.A. Hasan,
learned advocate for accused persons
(Accused no. 1 to 3, 5, 18, 22, 24, 31, 41, 43, 47, 53, 63, 65,
67, 74, 77, 90, 100, 101 and 26 to 30, 70, 71)
[16] I was aware of as to what precautions I shall have to
take as Magistrate before recording statement of accused
u/s 164. When accused was brought before me on
04/02/2003 and 05/02/2003, I made oral inquiry of him in
addition to note about questions having been asked in the
statement. I did not prepare any memorandum in respect of
oral inquiry in addition to note in the statement. I can state
as to what I asked during oral interrogation in addition to
note in the statement. I asked accused that, “Whether any
harassment was meted out to you by police on two days
when you were brought to Godhra Court from jail and vice
versa? Whether any inquiry was made stopping you
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somewhere on the way? Do you wish to depose though it is
not compulsory for you to depose? Was care taken of you
for daily routines on the way?” I found these oral questions
important. It is not true that questions written in the
statement are out of purview of questions which should be
asked in the form of precaution as per the provision of
section 164. It is true that if accused is in police custody for
a long time, it is necessary to make inquiry as to whether he
was given any kind of temptation, enticement, pressure,
threat, mental or physical torture by police during custody
or not. It is true that when accused was produced before me,
application was submitted wherein such was declared that
accused has confessed offence before the police during police
custody. It is true that I had been aware of the fact that more
than one person are involved as accused in the incident of
Godhra railway train before accused was produced before me.
It is true that during his interrogation, I asked him as to
whether police made him ready for confession statement
during his police custody giving such temptation or making
such representation that he would be acquitted from this
offence or he would be made approver or not. I have not
made any inquiry of accused at the time of inquiry of
aforesaid accused as to whether his brother or other members
of family are involved in this case or not and they are in
custody or not.
[17] It is true that when accused was produced before me
on 04/02/2003, he was not in police custody. It is not true
that as accused was produced from judicial custody on
04/02/2003 and 05/02/2003, I did not require to make any
inquiry in respect of police custody of accused during my
inquiry. It is true that when accused was produced before me
on both of these days, I do not have any information as to how
he was kept in Central Jail Vadodara. It is true that any
record, as to under whose custody and how accused was in
Central Jail Vadodara during the period from 30/01/2003 to
05/02/2003, was not produced before me. It is true that due
to this reason, I do not have personal information as to how he
was kept in Central Jail Vadodara and treated. It is true that I
did not make any inquiry during interrogation as to under
whose japta (surveillance) accused was kept in judicial custody
and as to whether any one was allowed to meet or not.
[19] I do not know the fact as to whether the other 8 to 10
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policepersonnels who were there with Shri Noel Parmar who
came to me with the application on 2912003 were members
of the Investigating Team or not. It is true that in the Court of
the Chief Judicial Magistrate, only one policepersonnel
remains on duty during officehours. There were two doors
to enter the Courtroom from the lobby, in my Court of the
Chief Judicial Magistrate at that time. It is true that the
witnessbox was on the right side from the dais. It is true
that the person standing in the witnessbox can see the
movement in the lobby and similarly, the person in the lobby
can see the person being in the witnessbox. It is true that on
522003, when I recorded the statement of the accused in
the Courtroom, the lobby of the Courtroom, the outer part
of the window situated to the other side, and the Court
room were full of advocates and common people. During the
period when I recorded the statement of the accused in the
Courtroom, there were common people in addition to the
advocates. I cannot state it for sure as to whether there were
any policepersonnels in simple dress or not among the
common people present. The witness states that I had
instructed the persons of police to go out. It is not true that
I had given no instruction to the persons of police clad in
simple dress for going out. It is not true that during the
procedure of recording the statement, there was movement
of the advocates and common people in the Courtroom. The
witness states that the constable on duty in the Court had
been instructed to take care that movement is not made. It is
true that the sittingarrangement for criminalstaff had been
made in the Courtroom itself by making a partition of
plywood in the endpart, and in that part, there was one door
from outside for movement and one door was there towards
the Courtroom”.
5.1 Further crossexamination is about unawareness of this
witness about any additional police force was deployed outside the court
room and that distance between the dais and witness box and
movement and conversation between the accused and learned advocate.
5.2 Para 23 is about denial on the part of this witness taking
any legal advise from anyone, but admits to have stated legal advise and
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that he knew difference between the statement of confession by an
accused and the statement by a witness. Para 24 is about Ranjitbhai
Jodhabhai and Prabhatsinh Gulabsinh about instructions given to these
witnesses by leaned additional Sessions Judge. Para 25 is again about
procedure of giving an application for recording statement of these two
witnesses at Exh.1470 and Exh.1471. That para 26 is about Sikandar
Mohammad Sidik Shaikh Exh.237 whose statement was recorded on
22.09.2003. That in further crossexamination by learned advocate Shri
I.M.Munshi in para 28, the witness states about procedure to be
followed under Section 281 of the Code, 1973 while recording
statement under Section 164 of the Code, 1973. That relevant portion
of the above paragraph reads as under:
“It is true that in order to record the statement u/s 164, it is
necessary to follow the procedure as u/s 281. It is true that
the provisions of Section 281 are imperative. I cannot state
for certain that as per the provision of Section 281, it is
necessary for the Magistrate to put a signature after noting
the procedure whatever may have been carried out, after
recording the questions asked to the accused and the replies
thereof, after obtaining the signature of the accused below
the same. It is true that as per the provision of Section 164,
the Magistrate is supposed to put his signature after giving a
certificate with his name below the statement of confession
of the accused. It is true that no name of mine or signature
have been put down at the initial part in the certificate that
I have given below the statement of confession of the
accused Jabir Binyamin Bahera. It is true that at the end of
the statement of the accused Jabir Binyamin Bahera, the
accused has not given it in writing that the fact of the
statement has been read over to him or that he has read it
and that he has admitted that the fact written is true. It is
true that I have not noted any rojkam in respect of the
procedure of the statement of the accused of Section – 164″.
5.3 In further crossexamination by learned advocate Shri
L.R.Pathan in para 34 this witness states as under:
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“34. When I studied the legal provisions before recording
the confessionstatement of the accused, I had studied
Sections 163, 164, 281 and the Criminal Manual. I cannot
state for certain as to before how much time of recording
the statement of the accused, I had done this study. Even
approximately, I cannot state as to before how many days of
recording the statement of the accused, I made this study. It
is true that before recording the statement of the accused, I
was aware as to what procedure is necessary to be made for
statement under these Sections of law. Before I recorded the
statement of the confession of the accused, I had done
criminal work for the period of about 3 months. It is true
that after the accused is produced before the Magistrate, his
judicial custody begins from the time he is taken in it. It is
true that after the accused is put in the judicial custody, the
jailauthorities do the procedure of bringing him to and
taking him from the Court under jailsurveillance. It is true
that the policepersons of jailsurveillance who are there
under jailauthority are not of the administrative branch of
the concerned policestation”.
5.4 In para 35 this witness is not sure about what procedure
was followed in the application dated 29.01.2003 submitted by
Investigating Officer without looking to the record. In paras 37, 38 and
39 of his crossexamination, it is stated as under:
“37. It is true that the police employee, who accompanied
Mr. Noel Parmar on 29/01/2003, was Mr. S.B. Patel, P.S.I. I
did not make any verification as to what role Mr. S.B. Patel
played in the recent investigation. Though Mr. S.B. Patel came
with Mr. Noel Parmar, I did not realize that he should be
involved in the investigation of this case. I did not make
verification as to which post Mr. S.B. Patel was holding at
which place at that time. I did not have any belief that Mr. S.B.
Patel is an honest officer. It was not in my notice as to how Mr.
S.B. Patel performs his duty as a police officer. The witness
states that I saw him first time on that day. Though I was
aware of the fact that when accused is in judicial custody,
jail authorities bring him before the Court with separate
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Patel because offence had taken place within jurisdiction of
Railway, and considering conduct of Mr. Noel Parmar with
Court on that day, the work was handed over to Mr. S.B.
Patel. I do not know that Mr. S.B. Patel was discharging his
duty in the Railway Police Station or not. It is true that main
purpose of sending accused in the judicial custody giving 24
hours of time before recording his confession statement is
to free him from the effect of police custody and therefore,
it is main intention of keeping him away from police
custody. It is true that I did not make any effort before passing
an order of producing accused before me through Mr. S.B.
Patel so that jail authorities directly produce him before me. I
cannot state that Mr. S.B. Patel was directly involved in
investigation of this case.
[38] It is true that it is not a subject of discretion of
Magistrate recording statement as to whether question asked
to accused and answer given by him at the time of recording
his confession statement, should be recorded or not. It is true
that Magistrate has to write all the questions and answers. It is
not true that I have stated in the earlier cross examination
that considering answers of some questions given by
accused, I have not recorded these answers of questions,
which I did not find necessary, thereby I have violated
mandatory provisions u/s 281 of Cr.P.C. As per my memory,
I have not recorded three or four answers of questions. I
myself have not kept any separate note in respect of
procedure of recording confession statement of accused
done by me. It is true that I do not have any documentary
evidence showing that police personnel were instructed to
leave the Court room at the time of recording statement of
accused. It is true that I have not made entry of time as to
when accused came before me and went on 04/02/2003 and
05/02/2003.
[39] It is true that it falls under the discretion of the
Magistrate to record the confession statement of the accused or
to record the statement of witness under section 164. I cannot
state that no senior officer can compel the Magistrate to record
confession or statement of witness under section 164. It is true
that any order without jurisdiction is null and void. I am not
able to state that as the order of Mr. Kella was out of
jurisdiction, it was prima facie null and void. It is true that
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three of them were produced before me to record their
statements as witnesses. It is true that as they were
witnesses, it can be assumed that they were not under
police custody. The questions asked to these witnesses
regarding police custody are generally asked to the accused
under custody. It is not true that I asked such questions to
these witnesses because I was under impression that these
witnesses were under police custody earlier. It did not happen
that no witness gave answer to any question at all. I cannot
state without seeing the record as to whether answer of any
question remained to be written. I am not able to state without
seeing the record as to whether when the statement was read
over after recording the same, I had noticed that answer to
some question remained to be written. It is true that if I had
noticed at the time of reading over the statement that answer
of question is remaining to be written, I would have asked the
answer and recorded the same. It is not true that I have
recorded the confession statement and statement of witness
without paying attention to the precautionary steps, which
ought to be done before recording the confession of the
accused and statement of the witness under section 164
6 Along with the above testimony, deposition of Dr. Juber
Mahammad Yusuf Mamji PW180, reads as under:
[1] I have been residing with my family at my residence
situated on the Maulana Azad Road in Godhra City for the last
10 years. I have been discharging my duty as Professor in
Gujarat Homeopathic Medical College at Savli since 2007. I
had been practising as Medical Practitioner running hospital in
the name of “Madni Shifa Clinic” at my residence situated on
the Maulana Azad Road in Godhra in 2003 and prior to it.
[2] Generally, timing of my hospital was from 10 o’clock. I
had been residing above the hospital at that time. One
patient, namely Jabir, came for the treatment at about 9.30
am on 27/02/2002. On examining him, C.L.W. was found on
his forehead. I gave treatment to him and took three stitches
on injury. The patient informed that he sustained injury due
to falling from shelf. I gave necessary medicines to the
patient and charged him Rs. 50/ towards fee. Thereafter,
the aforesaid patient did not approach me for further
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treatment of the said injury again. The aforesaid patient
came to my clinic for the first time. I am shown mark
28/260. Having seen the same, I state that it is the
certificate prepared by me in my own handwriting on
29/01/2003 in connection with aforesaid matter. It bears
my signature, and facts written therein are correct, and I
handed over the aforesaid certificate to the police.
Note: With regard to assigning exhibit no. to mark 28/260 after
admitting the same in evidence, learned advocate Mr. A.D. Shah
for Defence has drawn attention of the court and stated that as
certificate addressed to police was prepared on 29/01/2003 after
statement of witness was recorded on 24/01/2003, and as
certificate bears signature of the witness, it can be considered to be
statement u/s 161 of Cr.P.C. Therefore, as per provisions of section
162 of Cr.P.C., the same cannot be admitted in evidence. After
hearing both parties in this regard, the case was adjourned for
decision.
[3] The injury sustained by the patient can be caused if blow
of any hard and blunt substance is inflicted. The police
recorded my statement in connection with aforesaid fact on
24/01/2003. I did not know the patient. I have been residing
in Godhra since birth. It is not so that I knew the said person as
I had been residing in Godhra since birth. If patient examined
by me is present in the court today, I can try to identify him.
Oath administered again,
Note: The witness went very close to the accused persons, who are
sitting in the court, keeping Court Shirestadar Mr. Patel with him
and after examining for about three minutes, he could not identify
any person out of accused persons as patient examined by him.
Cross examination : for accused persons
by learned advocate Mr. A.D. Shah
( for Accused no. 4, 6, 10, 13, 38, 42, 51, 52, 54, 58, 59, 61,
69, 75, 78, 79, 81, 82, 84, 85, 86 to 89, 91 to 99)
[4] It has not happened that police might have written a
letter to me seeking some information after recording my
statement on 24/01/2003. The police did not visit my clinic
again after recording my statement on 24/01/2003. I did not
prepare any case papers in respect of treatment given to the
person, who approached me for treatment on 27/02/2002 as
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was stated in the examinationinchief. I had been maintaining
register in respect of treatment given to the patient in the clinic
at that time. It is true that entry is made in the said register in
respect of name of patient, age, history of injury. It is true that
when police came to record my statement on 24/01/2003,
police did not ask for register of my clinic of that time or I did
not show the same on my own.
[5] It is true that I never saw this patient before
27/02/2002. It is not true that I have never seen this patient
even after 27/02/2002. The witness states that he saw him in
the police headquarter. I saw him on the same day my
statement was recorded. It is true that identification parade in
respect of the patient has not been conducted before Executive
Magistrate in my presence.
Cross examination : for accused persons
by learned advocate Mr. A.A. Hasan
(Accused no. 1 to 3, 5, 18, 22, 24, 31, 37, 41, 43, 47, 53, 63,
65, 67, 74, 77, 90, 100, 101)
[6] It is true that police chowki no.3 is situated adjacent to
‘Madni Shifa clinic”. It is true that Godhra railway station is at
walking distance of five minutes from my clinic. It is true that
there is not any Police Head quarter in Godhra Railway Police
station. It is true that Mr. Noel Parmar, Deputy Superintendent
of Police, Western Railway, Vadodara called me. It is true that
my statement dated 24/01/2003 was recorded at Kothi office,
Kubernagar, Vadodara. It is true that I was compelled to come
personally at Kothi office, Kubernagar, Vadodara to get my
statement recorded. It is true that I requested at that time to
record my statement at Godhra. It is true that I was called with
my letter pad at Vadodara on 29/1/2003.
[7] I am aware about the fact that when any correspondence
is made in Medico legal case, it is necessary to enter Inward
and Outward Number therein. It is true that any reference
number or outward number has not been made in certificate of
Mark28260. It is true that I was told to issue certificate
addressing Sub Divisional Police officer, Western Railway,
Vadodara. It is true that the aforesaid certificate was prepared
in Vadodara office as per instruction of the said police officer.
It is true that it has not been mentioned anywhere in the
record maintained by Medical Practitioner in connection with
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the aforesaid certificate.
6.1 That the above testimony of PW180 is very relevant
circumstance of the case even though evidentiary value of confessional
statement of Jabir Binyamin Behra and statements of Ranjitbhai
Jodhabhai Patel, PW224, Prabhatsinh Gulabsinh Patel PW231 and
Sikandar Mohammad Shaikh PW237 are considered independently.
6.2 In crossexamination this PW246, Shri R.K.Parmarl
learned CJM, Godhra, however, admits that he was not aware of the
procedure laid down in para 34 of Criminal Manual, at the same time
he makes it clear that procedure which was required to be followed
for recording confessional statement of accused and statements of
witnesses under Section 164 and under Section 281 of the Code,
1973 was imperative and same was followed. No complaint was
made by either accused or witnesses about any physical torture by
police and they were found healthy and having understanding of the
decision. The above PW replies to a suggestion about presence of any
police personnel, it was stated that all police personnel were
removed outside the court room, but in the lobby of the court
premises if police personnel were present for maintaining law and
order and bandobast, he was not aware about it. Though initially
this PW was instructed by learned Additional Sessions Judge on
26.02.2003 to record statement of witnesses within period of 7 days,
it was extended up to 07.03.2003. In further crossexamination, this
PW himself states that yadi was given to S.B.Patel, PSI by him so as to
forward the same to Vadodara Central Jail authority and he had no
idea about any direct or indirect involvement of S.B.Patel, PSI, in the
investigation of the crime. That regarding necessity of judicial
custody of accused, this PW is aware, but from record it appears that
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accused Jabir Binyamin was taken from court of learned CJM,
Godhra to Vadodara on 04.02.2003 and handed over to jail authority
and then was brought back on 05.02.2003 before the court hours, to
that extent viz. during journey hours the accused remained in police
custody at Godhra. This PW is aware about availability of SubJail at
Godhra for keeping undertrial prisoners. That this PW clearly stated
that he was aware of the fact that other accused was in judicial
custody, jail authority was to bring him before the court with
separate police japta and this work was handed over to S.B.Patel, PSI
because offence had taken place within the jurisdiction of Railways,
Godhra and that conduct of Dy. S.P. was not up to the mark in the
court. S.B.Patel, PSI was handed over Yadi. According to this PW
main purpose of sending accused to judicial custody and giving 24
hours time for reflection before recording confessional statement so
that he may remain free from the effect of police custody and may
reconsider his decision to confess the crime. That for better
appreciation of evidence, we have produced relevant testimonies
before the court in earlier part of the judgment. Thus, what emerges
on record is as under:
[1] He was unaware of procedure form qua paras 33 and 34
as laid down in Criminal Manual, but was quite well versed
with basic requirements under Section 164 read with Section
281 of the Code, 1973 to be followed in such a case.
[2] That in the Yadi he asked to handover the custody to PSI
Shri S.B. Patel. On 29.01.2003 Noel Parmar was accompanied
by other Police Officials, the Magistrate on sensing unusual
behavior of Noel Parmar, inquired for such other names and
came to know that S.B. Patel one of the Police Officers
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accompanied Noel Parmar.
[3] On 04.02.2003 PSI S.B. Patel produced the accused
before this witness and yadi was also given to Shri S.B.Patel
along with the accused to be handed over to Central Jail
Authority, Vadodara and a copy to Deputy Commissioner of
Police.
[4] That in the Court Room only one police person
accompanied the accused for the purpose of security on that
day.
[5] That he did not note on production of accused on
04.02.2003 that he was Chief Judicial Magistrate, Godhra in the
confessional statement (the witness volunteered that he has
stated that he was Chief Judicial Magistrate, Godhra, Shri R.K.
Parmar).
[6] Though this witness had not inquired into details about
police custody of accused prior to 04.02.2003 and no
verification was made about accused confessing before the
police for recording of a videograph during interrogation,
which was not mandatory but all basic and relevant questions
were asked about willingness and volition on the part of the
accused that his decision to confess the crime was not due to
any threat, undue pressure, enticement, temptation for any
gain and even consequences of such confessional statement
were also explained.
[7] That this witness knew about the availability of SubJail
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at Godhra, but the accused was brought from Central Jail,
Vadodara and considering the magnitude of crime and safety of
accused proper course of action was to sent back the accused to
Central Jail, Vadodara even considering law and order
situation.
[8] He handed over the custody on 04.02.2003 to PSI Shri
S.B. Patel for being submitted to Central Jail, Vadodara.
[9] In his crossexamination by Mr. A.A.Hasan, learned
advocate for the accused Nos.1 to 3 and other accused, it was
made clear that when he recorded the statement of accused in
the court room, the lobby of the court room, outer part of the
window situated to other side and the court room was full of
advocates and there were common people in addition to the
advocates. This witness stated that he had instructed the
personnel of police to go out and denies that it is not true that
during the procedure of recording the statement there was
movement of advocates and common people in the court room
even constable on duty in the court was instructed to take care
that movement is not made.
[10] He was confronted with uninitialed correction to the
name, surname “Panval” “Bala” and the addition in the last line
of the word “pump” and the replacement of the word
“standing” with “coming” on page No.7.
[11] The statement was recorded in presence of the advocates.
[12] Identification of thumb impression of accused, without
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signature was done by Court Clerk.
[13] No carbon copy of the statement was taken
simultaneously neither photocopy was obtained.
[14] Procedure as prescribed in Second Part of Clause 7 and 9
of Form No.35 in the Criminal Manual has not been noted in
the confessional statement of the accused recorded on
05.02.2003, but substantial compliance was made for statutory
procedure under Section 164 read with Section 281 of the
Code, 1973.
[15] That in the order dated 29.01.2003 passed by Railway
Magistrate it could be noticed that remand of the accused was
granted for a period between 22.01.2003 to 30.01.2003 and he
was in judicial custody when he was produced before this
witness.
[16] He was aware of the fact that the accused had confessed
to the police while in police custody.
[17] He was unaware of the nature of the treatment given to
the accused while in judicial custody on 04.02.2003 and
05.02.2003, but ensured physical and metal health of the
accused and that whether he was able to understand and
answer the questions to be put to him.
[18] That in the end of the confessional statement of Jabir,
there is no endorsement that the statement was read by or read
over to the accused and the contents thereof are true.
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[19] This witness did not make any effort to ensure
production of the accused directly from the judicial custody by
jail authorities.
7 Thus, on this aspect of police custody during transit, legal
flaw / infirmities appears about police custody of accused Jabir
Binyamin for taking him to Central Jail, Vadodara on 04.02.2003 but
again when accused was produced on 05.02.2003, this PW followed the
detailed statutory procedure as required under Section 164 and Section
281 of the Code, 1973. That the procedure contained in paras 33 and
34 of Criminal Manual is informative and has genesis in Section 164 of
the Code, 1973 and though unaware this PW has in fact followed such
procedure in essence while recording confessional statement of the
accused and statements of other three witnesses and, therefore, to that
extent the confessional statement of the accused is voluntary,
trustworthy as willingness was ascertained and consequence of the
confession resulting into conviction and sentence of the crime confessed
was also explained. That thumb impression on every page of the
statement so certified by PW and physical and mental condition of the
accused was ascertained and was found in order. Looking to the
sensitive nature of the case, providing heavy police bandobast either to
bring the accused to the court or in the court premises by itself cannot be
said that the accused had given confessional statement and witnesses
have given statements under Section 164 of the Code, 1973 out of fear
and the same are not voluntary and true. Besides this PW after studying
legal provisions and without being influenced by instructions passed by
learned Additional Sessions Judge, Panchmahals, Godhra, recorded
confessional statement of accused and other statements of witnesses PW
231 and PW224. That as confessional statement of Jabir Binyamin
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Behra is voluntary and truthful, and therefore believable, but at the
same time cannot be used against coaccused unless cogent and
convincing corroborating evidence is available.
That confessional statement of Jabir Binyamin Behra
recorded under section 164 of the Code, 1973 satisfies twin objects viz.
Voluntariness and truthfulness and therefore, trustworthy as held by the
Apex Court in the case of Aloke Nath Dutta [supra]. In the very
judgment in para 116, a reference is made to the decision in the case of
Balbir Singh [supra]. According to the Apex Court one rule is almost
certain that no judgment of conviction shall be passed on a non
corroborated retracted confession. The court shall consider the material
on record objectively in regard to the reasons for retraction. It must
arrive at a finding that the confiscation was truthful and voluntary.
Keeping in mind the above, we find that plenty of corroborative
evidence available to believe the confessional statement of Jabir
Binyamin Behra and that is borne out from the statement of witnesses
PW224, PW231, PW236 and PW237, respectively not in their
statements recorded under Section 164 of the Code, 1973, but also in
their testimonies before the court. That FSL and scientific evidence also
emerge on record corroborate the confessional statement of Jabir
Binyamin Behra. We are convinced that confessional statement of Jabir
Binyamin Behra is voluntary, truthful and, therefore, trustworthy and is
believed. See, decisions of the Apex Court in VolumeII of the judgment
in the case of Rabinderpal Alias Dara Singh [supra], Baijnath Saha v.
State of Bihar [supra] and Yakub Memon [supra]
7.1 The above three statements of witnesses viz. Sikandar
Mohammad Sidik Shaikh, Exh.237 and Ranjit Jodhabhai Patel, PW224
and one confessional statement of accused Jabir Binyamin Behra
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recorded under Section 164 of the Code, are very important for deciding
the cases on hand. This evidence is relied on to establish conspiracy,
gathering of violent mob forming unlawful assembly, pelting of stones,
assault by weapons and setting S6 coach on fire and damage to other
coaches and also topography at and around scene of offence.
7.2 Submission of learned Special Public Prosecutor regarding
obtaining certified copy dated 05.02.2003 of confessional statement
recorded by PW246, learned CJM, by Investigating Officer PW244 viz.
Exh.1469 visavis testimonies of PW246 that no copy of the
confessional statement was made available, it appears in the evidence on
oath by PW246 of the then CJM, Godhra that no xerox copy or any
other copy of the above statement was prepared by him. At this stage of
appeal, the certified copy of the confessional statement dated
05.02.2003 of Jabir Binyamin Behra, accused, is produced which reveals
that certified copy was applied and obtained by Investigating Officer
PW244, and the documentary evidence assumes significance. But, we
restrict our appreciation of the evidentiary value of such confessional
statement based on various case laws to which reference is already made
in VolumeII of the judgment in which principles and parameters are laid
down for requirement of ascertaining truthfulness and voluntariness of
such statement under section 164 of the Code, 1973. In view of the
reasons already assigned by us earlier, deposition of PW246 about non
availability of a copy of the confessional statement dated 05.02.2003 of
Jabir Binyamin Behra, accused, and obtaining certified copy on the same
day by the Investigating Officer PW244 needs no further deliberation at
this stage since statutory requirement under Section 164 of the Code,
1973 was followed by PW246 while recording such statement.
8 That testimonies of Bhikhabhai Harmanbhai Bariya, PW
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206 and Ranjitsinh Jodhabhai Patel, PW224 before the trial court at
Page 1060 and 1139 respectively corroborate statements under Section
164 of the Code of PW224, 236 and 237 qua part of the conspiracy.
This witness was selling beedies and cigarettes at Godhra Railway
station and was working with Muslim employer and was present at the
time and date of the incident i.e. 27.02.2002. In his crossexamination
in chief arrival of the Sabarmati express train according to him was
around 7:30 to 7:45 am and karsevaks uttering slogans of Jay Shriram
and it was overcrowded and further a quarrel took place between
Karsevaks and hawkers for payment of money with Mehboob Latika,
who ran towards signal Falia and members of Muslim community
started pelting stones. After the train was started it stopped at a
distance, as the chain pulling was done and thereafter again train started
and Salim Panwala had shouted that, “stop the train”, and thereafter
Anwar Bhopo, Kadir Pataliya and Saukat Bhana climbed on the train.
Kadir Pataliya went between two couplings and he had turned the cock,
and the train was stopped after going ahead. In para 3 of his deposition,
it is stated as under:
“3. The stone pelting on the ‘A’ Cabin was continued when
I went, the public was pelting stones. The mob had set on
fire. There, Anwar Bhobha was standing down near Gida,
and I was standing behind the ‘A’ Cabin at that time. There
were Hasan Lalu, Saukat Lalu, Mohammed Lalu, Kadir
Pataliya, Babu Pataliya, Soeb Kalandar, Yunus Ghadiyal,
Mehboob Popa, Salim Panwala, Saukat Bibino, Saukat
Bhana, Salim Panwala, Ramzani Bibino. Then the coach of
train was set on fire and the stampede took place and I had
gone at home. The police had taken my statement related to
the incident on 25.07.2002. If the hawkers who were present
on the platform on the day of the incident and those hawkers
who got on the running train and those persons who were
present near ‘A’ – Cabin at the time when the attack was done
on the train, are present in the Court, I can identify them.
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Note : Among the accused persons, the witness has
identified total – 6 persons during the period of about seven
minutes after going very close to the accused persons where they
are sitting in the Court Room by keeping the Court Shirastedar –
Mr. Patel with him. The names of these 6 persons as per the say of
the witness are as below.
[1] Saukat Bhana
[2] Hasan Lalu
[3] Saukat Bibina
[4] Mehboob Latika
[5] Irfan
[6] Mehboob Popa
On asking the names by the Court to the aforesaid 6 accused
persons, they have stated their names as below respectively.
[1] Saukat Farook Pataliya
[accused no. 5 S.C. no.75/2009][2] Hasan Ahmed Lalu 11
[accused no.4 S.C. no. 71/2009][3] Mohammed Saukat Yusuf Mohan
[accused no. 1 S.C. no. 85/2009][4] Farook (Mehboob) Ahmed Yusuf Hasan
[accused no. 1 S.C. no. 84 /2009][5] Irfan Abdul Majid Kalandar
[accused no. 2 S.C. no. 81/2009][6] Mehbood Yakub Mitha
[accused no. 2 – S.C. no. 71/2009]Note : The names of the persons whom the witness mentioned in
the ExaminationinChief – i.e. Saukat Lalu, Mohammed Lalu,
Hasan Lalu, Kadir Pataliya, Babu Pataliya, Soheb Kalandar,
Yunas Ghadiyal, Salim Panwala, Ramjan Bibino are not present
now in the Court as accused persons. Among the accused persons,
there is no any accused namely Yunus Ghadiyal but Yunus
Abdulhak Samel is present. There is no any accused with the name
Ramjani Bibino. The accused namely Ramjani Binyamin Behara is
present in the Court. Among the names which are stated by thePage 821 of 988
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witness in the ExaminationinChief, Sohed Kalandar is present in
the Court room”.
8.1 In para 23, the above witness confirms to have made
statement before the police about involvement of the accused, which
reads as under:
“23. It is not true that I have not dictated in my police
statement that, “all started shouting. It is not true that I
have not dictated in my police statement that, “The mobs
came and started stone pelting on the station.” The witness
states that I have dictated in my statement that, “Muslim
Ghanchi came running and started stone pelting on the
train.” It is not true that I have not dictated in my police
statement that, “Salim Panwala shouted at this time.” The
witness states that I dictated in my statement that, “Salim
Haji shouted.” It is not true that I have not dictated in my
police statement that, “Kadir Patadiya boarded in the last
coach and other two persons boarded in the front coaches.
Kadar Patadiya went between two coupling and he turned
the bolt.” The witness states that I have dictated such in my
police statement that, “I have seen Kadir Patadiya turning
the disc of chain pulling.” It is not true that I have dictated
such in my police statement that, “Stopped near cabin ‘A’.”
It is not true that when the the coach was burning and the
people were causing stampede, the names of the persons
that I have stated in examination in chief may have come
there running. It is true that I have dictated such in my
police statement that, “And other hawkers, Mohmad Ahmad
Lalu, Sokat Ahmad Lalu, Hasan Ahmad Lalu, Mahebub
Popo, Kadir Patadiya, Babu Patadiya, Irphan Bhobho,
Shuakat Bibno, Soyeb Kalandar, Yunus Ghadiyali, Imran
Sheru, Ramzan Bibino, his nephew Shukat and Salim
Panwala and other hawkers ran.” It is true that the hawkers
came running from towards Railway station”.
9 Ranjitsinh Jodhabhai Patel, Exh.224, who was working at
petrol pump of Kalabhai along with another employee Prabhatsinh
Gulabsinh Patel, PW231 and narrates the incident of previous day viz.
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26.02.2002 and around 22:00, the owner of Aman Guest House, Rajak
Kurkur came and another person named Siraj Bala following him in
bottle green coloured tempo and Salim Panwala was sitting with him on
the driver’s seat. There were total three persons viz. Binyamin Bahera,
Saukat Lalu, Salim Jarda sitting at the back side of tempo and purchased
140 liters of petrol by paying money to Prabhatsinh. 7 carboys having
capacity of 20 liters each were filled in and thereafter they went back.
9.1 Total four persons were identified and facts about
identification read as under:
“Note : The witness has kept the Court Shirastedar Mr Patel
with him and he goes close to them who are sitting in the Court
room. During the time of about five minutes with the accused
persons, they made two persons to stand. Meanwhile, the Special
Assistant Public Prosecutor Mr Prajapati submitted before the
Court to make two accused persons stand in a queue, it was
instructed from the Court to make the accused persons stand in a
queue. Therefore, they stood in a queue. During the course of time
of fifteen minutes, the witness has identified total four persons. As
per averment of the witness, the name of person standing first is
Jabin Binyamin Bahera, second is Siraj Bala, third is Rajak
Kurkur and forth is Salim Jarda. On being asked by the Court the
names of all three persons, they have respectively stated their
names as follows.
(1) Jabir Binyami Bahera
(Accused no : 2, S. C. No: 72/09)
(2) Hasan Ahmed Lalu
(Accused no : 4, S.C.No: 71 / 09)
(3) Yusuf Allu Baksh Kazi
(Accused No : 16, S.C.No: 69/09)
(4) Taiyab Abdulla Shaikh
(Accused no : 28, S.C.No: 69/09)The witness states during examination in chief that the said
accused persons namely Rajak Kurkur, Salim Jarda and Siraj
Bala are present in the Court. Whereas, Salim Panwala and
Saukat Lalu are present in this Court”.
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9.2 The above witness explains about going to the police station
on 10.04.2002 and denial of any knowledge about incident of his
interview with TV reporter on TV channel. He further narrates about
offering money by TV report under the guise that the reporter was
writing the book and to make a TV serial. Further he confirms about his
statement before the learned CJM and police protection provided to him
and coemployee Prabhatbhai. In his further crossexamination dated
08.03.2010 by learned advocate Mr. A.A.Hasan for the defence in para
17 the above witness deposed as under:
“17 On 04/11/2008, the Police had recorded my
statement. I do not know the fact that the officer who noted
down the statement on that day was Mr J.R. Mathaliya,
District Superintendent of Police, Panchmahal. I have heard
the name of Mr J. R. Mathaliya. When I dictated the statement
dated 04/11/2008, I had heard his name. Now I am saying
that, when you asked me about the aforesaid question
regarding the statement dated 04/11/2008, I have heard his
name. As per my say, when you said the name of Mr J. R.
Mothaliya, I have heard the name. It is not true that I was such
informed that many questions shall be asked to me by
Advocate in the name of Mr J.R. Mothaliya. The police with
me had informed me to dictate the statement at Gandhinagar.
It is true that the police was at my home only for the
bandobast. It is true that I asked for neither summons nor
write from the police and the police did not give me. It is not
true that when I went to dictate the statement at Gandhinagar,
the police officer who recorded my statement had apprised me
that his name is Mr J.R. Mothaliya and he is a District
Superintendent of Police, member of SIT and he is
investigating this said case. It is true that at that time the
video recording was done. It is true that at that time, my
earlier statements dated 10/04/2002 and 23/02/2003 were
read over to me. It is true that I was asked such as to
whether my statement dated 10/04/2002 is true or false. It
is true that I had admitted such on that day that my
statement dated 10/04/2002 is true and appropriate. It isPage 824 of 988
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not true that while recording the statement on 04/11/2008,
I did not dictate any fact regarding the person from Delhi
who took my interview and the interview which the persons
of “TV Nine” had taken. It is true that the video recording
was done during statement dated 04/11/2008. It is true that
the fact which I was dictating during the said statement was
noted down by the Police employee. I can not say today also
as to how much time it took exactly for recording the said
statement. It is true that the statement of mine which was
recorded on that day was read over to me. It is true that I
had also ascertained at that time regarding note of the
statement. I do not have idea of the fact as to whether my
statement which is recorded was in two papers or not. If you
say, it may be in two papers. I do not have idea of the fact as
to whether my signature has been taken below the said
statement or not. On being asked to me for reading my
statement dated 04/11/2008, I state after reading the same
that there is neither any mention regarding interview by the
person from Delhi nor from TV nine. It is true that in my
statement dated 04/11/2008, I have dictated farming as my
occupation. My statements dated 10/04/2002 and
23/02/2003 are shown to me. I state after looking to it that
my occupation therein has been written service. It is true that
the fact of service noted therein is false. It is true that
regarding the said false note of the service, I have not taken
objection till date at any place. The Chief Judicial Magistrate
asked me as to whether I am doing farming or not and I
denied for the same. It is not true that in order that the said
fact may not come on record that I am running the business of
grocery by the help of Shri Noel Parmar, I have intentionally
concealed the said fact during statements before the Police”.
9.3 Further, in para 20 of the crossexamination, the above
witness deposed as under:
“20 I do not have idea of the fact that my statement
dated 10/04/2002 was recorded in presence of the Deputy
Superintendent of Police. I do not say that the fact which I
have dictated during the statement dated 10/04/2002 was
false. As per my say, the fact which I stated during statement
dated 10/04/2002 was false. It is not true that after ten days
of the incident, Ajagaribhai was not my owner. It is true thatPage 825 of 988
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after 28/02/2002, I did not serve at the petrol pump sealed
earlier till it was reopened. I can not surely say as to in
which month the petrol pump was opened. The witness
willingly states that it had opened after about fourfivesix
months. I was not inquiring as to whether the said petrol
pump open in between that period or not. Between the said
period, neither I was called anytime nor was I given any
salary. It is true that I have dictated such during my
statement dated 10/04/2002 that “Thereafter, I read news
paper on the next day and I came to know that at the place
near ‘A’ cabin of Godhara railway station, Muslim persons of
Singal Faliya stopped Sabarmati express train yesterday and
made stone pelting and set one coach on fire. Due to the
same, some passengers in the said coach died by burning. In
the said train, Karsevaks were returning from Ayodhya. It
was known that due to the dispute with some Muslim
persons selling tea, the said incident occurred.” It is true
that I have also dictated such during the said statement
before the Police that “On the day the said incident
occurred, we have not sold petrol from our petrol pump to
any person in loose in a Can and from our petrol pump, no
loose petrol or diesel is sold in Can.” The witness states that
it was dictated at the instance of the owner. It is true that it
has not been written in my statement dated 10/04/2002 that,
I have dictated the same at the instance of our owner. It is true
that in my statement dated 10/04/2002, the fact regarding
loose sale of petrol, diesel has been dictated false. I felt such
before 23/02/2003 that I have dictated certain facts false in
my statement dated 10/04/2002. It is not true that around the
time of 10/04/2002, I had left the service of petrol pump and
therefore, I did not have any fear of my owner. I do not have
idea of the fact as to whether the said petrol pump was opened
in the month of August / ‘Shravan’ month of 2002 or not. After
about eight months of the incident, I had served at the petrol
pump for about ten days. It is true that during the service of
ten days, no body assaulted on me or beat me. It is true that
after leaving the service, I joined my farming work. During the
said time, it happened for me to read news paper. I did not
feel such after leaving service that I should state true fact to
the police about which I stated false earlier in the reply at the
instance of my owner. It is true that before 23/02/2003, I have
myself not gone to Kuber bhavan or Godhara Railway Police
station. I do not have idea of the fact that before 23/02/2003,
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Railway Police station and Vadodara Kuber Bhavan. Before
23/02/2003, the case was filed before Ld. Court and I did not
have information as to whether the deposition of the accused
was done or not. I had read in the paper that, the deposition of
the accused has been done in the Court. I do not remember as
to on which date I had read. I can not say as to before how
many days prior to my statement dated 23/02/2003 I read the
said news. I can also not say as to in which news paper I had
read the said news. I had read the said news in the school of
our village Sampa. I do not have idea as to how many persons
together read the said news. I do not have idea of the fact as to
whether only two news papers ‘Gujarat Samachar’ and
‘Sandesh’ are delivered in the said school or not. There was no
any photograph of the accused in the said news paper. I do not
have idea of the fact that there was no photograph of the
accused in the said news paper. I do not have idea of the fact
as to whether the said news was on first page in detail and in
large fonts or not. It is not true as to whether it was published
in the said news as to who, in which container, how and in
which vehicle took petrol. In the said news paper, I had read
the news regarding petrol. It did not happen that the news
which I read was in one line only. It is not true that on the
basis of the said news, I dictated the statements dated
10/04/2002 and 23/02/2003. I had read the news regarding
the fact that Jabir Binyamin Bahera had purchased petrol
from petrol pump. I do not have idea of the fact as to
whether the news was published in connection with the
statement of mine recorded in the Court. It is not true that
as stated in the examination in chief, no any person had
arrived at our petrol pump to purchase petrol and I have
not filled up any petrol but as Mr Noel Parmar has given me
the economical help, I have been fabricated witness at his
instance and I am stating this fact absolutely false”.
10 SALIENT FEATURES OF THE EVIDENCE OF RANJITSINH
JODHABHAI PATEL [P.W.224 EXH.1139] ARE:
[1] Rajak Kurkur is the owner of Aman Guest House
approached Kalabhai Petrol Pump at M80 after 6:00 p.m. on
26.02.2002 when the witness was sitting in the office of
Kalabhai Petrol Pump, with parrot colour tempi given by Siraj
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Bala accompanied by Salim Panwala on the driver seat and
occupied by Jabir Bin Yamin Behra, Saukat Lalu, Salim Jarda in
the rear. Salim Panwala went to Prabhatsinh chamber and
gave money for purchasing of petrol to him. Prabatsinh, Salim
Panwala and Rajak Kurkur all three came out. Prabhatsinh
instructed him to fill 140 litres of petrol. Seven carboys each of
20 litres were filled with petrol, the lead was closed by Salim
Jarda, Jabir Bin Yamin Behra, Saukat Lalu and Siraj Bhala and
then Rajak Kurkur rode M80 followed by Siraj Bala with tempi
accompanied by Salim Panwala on the driver side and occupied
by Saukat Lalu, Salim Jarda, Jabir Bin Yamin Behra in the rear
and it was driven to Aman Guest House.
[2] Claims acquaintance with Rajak Kurkur as owner of
Aman Guest House and frequent visitor to the petrol pump.
[3] Claims acquaintance with Salim Panwala as a leader and
frequent visitor to the petrol pump.
[4] Claims acquaintance with Jabir Bin Yamin Behra as
famous person of single falia and a criminal involved in various
thefts.
[5] Claims acquaintance with Salim Jarda, Saukat Lalu and
Siraj Bala as rickshaw drivers and frequent visitors to the petrol
pump.
[6] His two statements were recorded on 10.04.2002 and
23.02.2003.
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[7] Identifies Jabir Bin Yamin Behra, Hasan Ahmed Lalu,
Yusuf Alabax Kazi, Taiyab Abdullah but does not identify Rajak
Kurkur, Salim Jarda and Siraj Bala though present in the court.
Salim Panwala and Saukat Lalu were not arrayed as an
accused.
[8] His statement under Section 164 was recorded on
11.03.2003 and was called for T.I.Parade of Salim Jarda on
17.06.2004 in Mamlatdar’s office and on 15.10.2004 for Siraj
Bala.
[9] Went voluntary to the police on 10.04.2002 as his
employer had called him.
[10] States that he stated before SIT that before about one
year of 2008 a person chanting Jay Shree Ram came from Delhi
and asked him various questions regarding the extent of land
possessed by him, family history and gave him Rs.2,000/ and
told him that more money will be given, he is planning to write
a book and make T.V. serial, and that if I would say what he
wanted, more money will be given and then he told me to state
that Noel Parmar paid him Rs.50,000/ and therefore he stated
that.
[11] Admits that he was confronted with his interview given to
the Delhi man by T.V.9, that Noel Parmar paid him Rs.50,000/
and showed some photographs to be identified as accused
persons and was asked to state whether those facts were
correct or not and the witness stated that the facts were not
correct.
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[12] Admits that the Magistrate informed him that his
statement was recorded as applied for by him but disputes
having made in the application for the purpose of recording
such statement. However it appears that initially the
Magistrate had refused to record the statement but
subsequently under the orders of the Additional Sessions
Judge, his statement was recorded along with that of
Prabhatsinh on different dates.
[13] Admits that he constructed a house and a provision store
with pacca construction and covering roof of galvanized sheet
in 2003 after termination of his job.
[14] Earlier his income was Rs.1,250/ per month and a
daughter to be maintained.
[15] Admits that he is now the owner of motorcycle GJ01
CN6199.
10.1 He clarified that in his previous police statement dated
10.04.2002 it was stated that no petrol / diesel was sold from his
petrol pump as he was asked by the police about the day of incident;
however he volunteers that the statement was given as instructed by
his employer. During the identification in the court, in the first round
admittedly he could identify only one person though made an
attempt to identify them from a close distance and other three were
wrongly identified by him. The explanation given by him was that
because of long time gap and change in physiognomy of the accused
and their appearance, the mistake was committed. However, he did
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not express the difficulty faced by him in the identification of the
accused in the open court during the crossexamination and he
identified the accused with confidence that they were the same
persons as identified by him.
10.2 His statement was recorded on 23.02.2003 by the police
and 11.03.2003 by the Magistrate.
10.3 In none of the statements the witness has given an
explanation that the statement qua “no sale of petrol was given by
him at the instance of his employer”.
19.4 Admittedly he felt the need of giving statement dated
23.02.2003 after publication of the details of the statement given by
Jabir Bin Yamin Behra in the newspaper; however only after more
than 10 days of statement of Jabir Bin Yamin Behra.
10.5 In none of the police statements he mentions the
registration number of tempi.
10.6 He disputes the omission that Salim Panwala
disembarked the tempi and went into the cabin and gave money for
buying petrol to Prabhatsinh and then Prabhatsinh, Salim Panwala
and Rajak Kurkur all three came out and Prabhatsinh instructed me
to fill 140 litres petrol.
10.7 He disputes the omission that Rajak Kurkur is the owner
of Aman Guest House and frequently comes to the petrolpump and
seats with my employer and therefore I know him.
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10.8 He also disputes the omission “sometimes when there
was an occasion for his employer to go out, irrespective of the
persons of my employer he used to give tickets to our cashier”.
10.9 He also disputes the omission that “because he was
indulging in theft and robbery, I know him.
10.10 He also disputes the omission that “Salim Jarda, Siraj
Bala and Saukat Lalu who were autorickshaw drivers ….. “.
10.11 He disputes the omission in his statement dated
23.03.2002 that Salim Jarda fixed the lead on carboys and that Siraj
Bala drove the tempi to Aman Guest House and the omission in the
statement before the Magistrate regarding the person who fixed the
lead on the carboys.
P.W.221 hostile.
P.W.220 panch of contents of coach (Exh.86).
P.W.219 Surjibhai Chhanabhai Baranda (Deputy Suptd. of
Police, Vadodara Zone, Western Railway).
P.W.218 Ramsinh Kodarbhai Patel (PSI Western Railway,
Bharuch)
P.W.217 Ambalal Chhotalal Patel (P.I., CID Crime,
Gandhinagar).
P.W.215 Rameshbhai Raisinh Solanki (hostile).
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P.W.213 Roopsinh Amarsinh Navi (Godhra Control Police
Incharge).
P.W.211 Bhikabhai Ranchhodbhai Machchi (P.S.I., Nadiad
Railway Station). He recorded statements of Veenaben
Mafatbhai PatelPW83, Sumitraben Bhupendrabhai Patel on
05.03.2003 and Satishkumar Ravidutt Mishra – P.W.96 on
06.03.2002. No material contradictions or omissions.
P.W.210 Umarkhan Kalaji Malek (Second P.SI Valsad Police
Station) recorded statement of Virpal Chaidilal Patel P.W.82
and Shila Pal. No material omissions or contradictions.
P.W. 209 Pravinsinh Modhbhai Gadhvi (PSI, LCB Western
Railway, Vadodara) recorded statements of Satishkumar Mishra
and his daughter Archana on 18.03.2002 recovered logbook
Exh.194 and panchnama Exh.195 drawn on 19.07.2002 from
Uday Chandrakant Katiyar P.W.116 (Junior Engineer) in
presence of panchas and in that connection he recorded his
statement.
P.W.199 Prabhatbhai Punabhai Bhoi (Unarmed Police
Constable) who was deployed for bandobast on the railway
station since 26.02.2002 and who in addition to the testimony
given by other witnesses deposed Siddiq Baqar and Siraj
Rickshawala having complained to him against beating by
karsevaks. Siddiq Baqar and Siraj Rickshawala admittedly
showed him the injuries caused to them including an injury on
the right eye of Siddiq Baqar. He deposed that the assailants
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were determined not to budge despite firing of teargas cell.
He and constable Karansinh roundedoff three persons namely
Nasirkhan Sultankhan Pathan, Sadiqkhan Sultankhan Pathan
and Alauddin Alimuddin Ansari with iron rod, iron pipe and
iron rod respectively and submitted to the police who cordoned
them alongwith the other at ACabin.
10.12 Other four persons namely Yusuf Sabir Ismail with
handleless axe, YarMohammed Rafi Mohammed with stick, Ahmed
Abdul Rahim with iron rod, Azgar Ali with handleless axe were seen
by him in the mob.
10.13 His statement was recorded on 01.03.2002 and
24.12.2002.
10.14 Mentions about firing by police etc.
10.15 Identifies after 15 or 17 minutes of look at the accused in
4 to 5 rounds. Eight accused namely Yusuf Sabir (Accused No.17
Sessions Case No.69/09), Alauddin Alimuddin Ansari (Accused No.15
Sessions Case No.69/09), Azgar Ali Kamruddin Vohra (Accused No.26
Sessions Case No.69/09), Sadiqkhan Sultankhan Pathan (Abdul Sattar
Ismail Ghitali) (Accused No.13 Sessions Case No.69/09), Siddiq Baqar
(Siddiq Abdul Rahim Bakar) (Accused No.1 Sessions Case No.80/09),
Ya Mohammed Rafi Mohammed (Inayat Abdul Sattar Jujera)
(Accused No.10 Sessions Case No.69/09). The names of other two
persons were not known to the witness, who, on verification, stated
that they were respectively Kamal Badshah (Accused No.27 Sessions
Case No.69/09) and Soeb Yusuf Kalandar (Accused No.01 Sessions
Case No.75/09). The persons referred to by the witness in his
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testimony were present in the court.
CROSS:
10.16 He identified the accused with great difficulty for
Sadikkhan Sultankhan Pathan, he identified Abdul Sattar Ismail
Ghetali.
10.17 Admittedly, never before the incident, Abdul Sattar,
Nasirkhan Sultankhan Pathan, Sadiqkhan Sultankhan Pathan, Kamal
Badshah, Inayat Jujela were known to him by name and address.
Neither any description of their was given in his police station.
10.18 Omissions regarding his deployment at Platform No.1 for
bandobast and his reporting the completion of bandobast duty in the
train upto Dahod to Jhalasab who noted the same in his case diary
and his being present on duty along with others and the omission as
regards 50 to 60 persons pelting stones on the train at parcel office
and the omission as regards many people possessing deadly weapons
and attacking the train as also the omission regarding exhortation to
kill the atheist Kafir and the mob being violent and aggressive and
his submitting three persons to the police man who had already
caught others at ACabin and rounded them off and his involvement
in the relief operation. It is noticed in his crossexamination.
10.19 Admittedly he did not disclose the names of the persons
caught and interrogated by him before his statement dated
01.03.2002. No arrest memo was drawn by him.
11 Even in crossexamination by other learned counsels
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appearing for the defence the above witness has stood by his version and
no major contradictions or omissions appeared on record.
12 Sikandar Mohammad Sidiq Shaikh, PW237, an eye
witness to the incident, who was selling pouches of drinking water at
Godhra Railway Station has seen accused persons on the previous day
around 9:00 or 9:30 hours while he was returning from railway station
via Signal Falia to his home found Jabir Behra and Soyeb Qalandar
nearby Posti ni Hotel. The above witness, in para 4 of examinationin
chief stated as under:
“4 On the next day at about 745 or 800 hours, my family
members woke me up. They told me that there is an uproar
outside and there is shouting. I got up and after washing my
face, went to pond via rough road. I saw a parrotcoloured
small tempo standing there on the rough road. I saw from near
the pond that one train was there near “A” Cabin and many
people were throwing stones on it and they were causing
damage. Hence, I ran and went towards the train from there.
There is a narrow lane behind “A” Cabin, I jumped over it and
went upon the train. I climbed on a pile of stones and saw that
people were causing sabotage on the train. Rajaq Kurkur, Bilal
Badam, Hani Badam, Sidiq Badam, Aiyub Pataliya, Qadir
Pataliya, Yakub Pataliya, Irfan Pataliya, Rauk Kamli and Faruq
– brotherinlaw of Rajaq Kurkur were among those who were
causing damage to the train with bars. Thereafter, Rajaq
Kurkur climbed on the steps of the coach no. S/6 and he was
pouring petrollike liquid with carboy from open window
located near door and Salim Paanwala was lifting the said
carboy from the lower part. At that time, Mahebub Latiqa split
the partition between two coaches with a knife. Before that,
Mahebub Latiqa had made holes in the carboy
kept below. He had done so with an equipment like knife.
After the partition was split, Mahebub Latiqa went to the inner
section and thereafter, Jabir Behra also went inside. At that
time, Saukat Lalu gave carboys to both of them, one for each.
Thereafter, Saukat Lalu also went inside. At that time, Saukat
Lalu was given a carboy by Rafiq Bhatuk. All the three of them
went inside and thereafter, the door of coach no. S/6 facingPage 836 of 988
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Godhra opened. Thereafter, Rafiq Bhatuk, Irfan Bhobha and
Imran Sheru, all of these entered the coach from that door.
They had gone inside with three carboys. Others were standing
below. The persons standing below were sprinkling petrol in
the broken window from carboys. Irfan Pataliya, Ramjani and
Hasan Lalu were among them. Bilal Haji and Bhana had also
arrived. Meanwhile, Hasan Lalu ignited a torn and worn cloth
and lifted it with a stick and threw it into the coach. Hence,
the coach caught fire and it started burning. Hence, the
passengers in the coach began shouting. I was seeing all this
even at this time by standing on the pile of stones”.
12.1 In the court, the above witness made an attempt to identify
total 10 persons standing in the line and the fact about such
identification appears as under:
“Note : As the witness requested the accused persons
sitting in a Court to stand in a line, the accused are standing in
a line in the Court accordingly. During the time from 1155 to
12.05 hours, the witness has identified total 10 persons out of
those standing in the line. Their names as stated by the witness
are as below respectively.
[1] Hani Badam
[2] Sidiq Badam
[3] Jabin Bahera
[4] Irfan Bhobha
[5] Rauq Kamli
[6] Irfan Pataliya
[7] Mahebub Latika
[8] Aiyub Pataliya
[9] Maulavi
[10] Bilal Badam
Thereafter, the witness has identified one more person out of
those sitting during the time from 1205 to 1220 hours. His
name is Hasan Lalu as stated by the witness. As names were
asked to the aforesaid 11 persons by the Court, they have
stated their names as below respectively.
[1] Mohammad Hanif Abdullah Badam
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(accused no. 4, S.C. No. 82/09)
[2] Sidiq Abdullah Badam
(accused no. 1, S.C. No. 71/09)[3] Jabir Binyamin Bahera
(accused no. 2, S.C. No. 72/09)[4] Sikandar Abdulmajid Qalandar
(accused no. 2, S.C. No. 81/09)
(Irfan Abdulmajid Qalandar)[5] Abdul Rauf Abdulmajid Dhesali
(accused no. 1, S.C. No. 78/09)[6] Irfan Mohammadhanif Pataliya
(accused no. 1, S.C. No. 82/09)[7] Faruq Ahmed Yusuf Hasan
(accused no. 1, S.C. No. 84/09)
(Mahebub Ahmed Yusuf Hasan)[8] Aiyub Abdulgani Pataliya
(accused no. 2, S.C. No. 82/09)[9] Maulavi Hussain Umarji
(accused no. 1, S.C. No. 74/09)[10] Bilal Abdullah Badam
(accused no. 3, S.C. No. 79/09)[11] Hasan Ahmed Lalu
(accused no. 4, S.C. No. 71/09)Lastly, the witness has identified one person as Ramjani at the
stage of registering of the names of the accused persons. On
asking name to that person, he has stated it as Rajamani
Binyamin Bahera.
The following accused persons are not present in the Court
room at present out of those whose names were stated by the
witness in the examinationinchief.
[1] Qadir Pataliya, Page 838 of 988 Uploaded by P. SUBRAHMANYAM(HC00165) on Fri Oct 13 2017 Downloaded on : Thu Jan 30 16:49:56 IST 2025 NEUTRAL CITATION R/CC/1/2011 CAV JUDGMENT undefined [2] Yakub Pataliya, [3] Faruq, [4] Saukat Lalu, [5] Rafiq Batuk, [6] Bhana, [7] Imran Sheru.
The following accused persons are present in the Courtroom
whose names have been mentioned by the witness in the
examinationinchief.
[1] Rajaq Kurkur
[2] Bilal Haji
[3] Soyeb Qalandar".
12.2 The above witness further narrates about identification
parade which took place before Mamlatdar qua Mehboob Latika and that
he had no occasion to speak to Maulavi Hussain Umarji before the
incident. However, after the incident he requested Maulvi to help him to
provide grains, water, etc. He was living in chawl of 25 to 30 houses
which were opposite to Mosque. The above witness confirms to have
made statement before learned Magistrate under Section 164 of the
Code. In para 21 of his crossexamination the above witness stated
as under:
“21 The persons damaging the coach were doing so
by going near the coach. It is true that they were damaging
the windows by going near the windows of the coach. The
persons pouring liquid on the coach were standing below
the coach and they were sprinkling it from the carboy by
splashing. It is true that I have seen the carboys well. I have
never used carboys of this type. I had not seen the lids of
these carboys. I have not taken in hand any carboys of this
type. It is true that I have mentioned carboys in my
statement. It is not true that I have dictated the detail of
carboy in the examinationinchief for the reason that it is
written in my statement. I cannot state the fact as to at what
height the windows were from the ground. I cannot state
about my height also. My height was the same even beforePage 839 of 988
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eight years from now. The physique was also of the same
kind at that time. It is not true that I was a child during the
period of the incident.
22 In coach no. 6, three windows were broken
from the door of the side of Godhra and two were broken
from the side of Vadodara. I do not know how many
windows are generally there in both the sides in a coach. I
have had occasions of going inside coaches of train.
Question : Do you know that there are A.C. Sleeper and
general coaches in the passengertrains coming
from Delhi and Bombay?
Answer : In some trains, there are special coaches and
local coaches and in some trains, there is a
coach with glass.
I do not know the fact as to which coach is
known as ‘A. C. Coach’. I know which coach is
called a sleeper coach. I have travelled in
train. I used to go up to Derol and Piplod for
hawking.
23 When the door of coach no. S/6 facing Godhra
was opened, I had not seen anything else in the internal
side. The witness states that the opposite (offside) door
was closed. At that time, I had not seen anything in the
passage between the opposite door which was closed and
this open door. I had not seen passengers or goods, children
or women in this passage. It is true that ironrods are fitted
horizontally on the external part of the windows of the
coaches. The rods fitted on the external side of the Windows
which I state to have broken were not completely broken.
The rods of the window opposite to me were not broken. As
per my say, attempt had been made to break these roads
but they were not broken. I cannot state the fact as to
whether such things as pieces of glass of the windows,
aluminumstrips of the windows or rubberframe were lying
on the ground at the place of the incident or not.
12.3 Further, he states that before his statement was recorded at
Surat on 21.09.2003 he had not told to any person though he was anPage 840 of 988
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eye witness of the incident. This witness also denies about providing job
in Udhna, Surat by Noel Parmar, I.O. In paras 43, 44 and 45, the above
witness who was standing on pile of stones stated stated about the
incident and that the door was open after 3 persons had gone inside the
coach and they were Rafiq Bhatuk, Irfan Bhobha and Imran Sheru and
these 3 persons were named before the learned Magistrate in the
statement recorded under Section 164 of the Code. The above witness in
paras 43, 44 and 45 stated as under:
“43. I do not know Karim Paanwala. It has not so
happened that Rajaq Kurkur and Karim Paanwala might
have climbed upon the coach. It has not so happened that
Rajaq Kurkur and Salim Paanwala might have supported
from behind. It is true that I have dictated in my statement
before the Magistrate that “the owner of Aman Guest House
named Rajaq Kurkur and Salim Paanwala were there, there
was something like petrol in the black carboy, Rajaq Kurkur
and Karim Paanwala climbed on the coach no. 6 and Rajaq
Kurkur and Salim Paanwala were supporting from behind.”
The petrol poured by Rajaq Kurkur and Salim Paanwala
about which I state had been poured in the first window of
the compartment near the door. It is not true that in my
statements before the police or before the Magistrate, I had
not dictated that thereafter, Rajaq Kurkur stepped on the
stairs of the coach no. S/6 and he was pouring petrollike
liquid from carboy from the open window from near the
door, and Salim Paanwala was lifting that carboy from the
lower part.
44. Petrol, diesel and kerosene smell differently.
The liquid being poured which I saw was petrol as per my
say. It is not true that in my statements of 2192003 and
2292003, I have dictated that “near the steps of the coach
no. S/6, they were throwing a petrollike liquid into the
coach from a black burnt carboy.” It is not true that there is
no facility of opening the doors of coaches in a train from
outside. As per my say, the doors have handles outside. It is
true that these doors have a lock inside, on the upper part.
It is true that the door cannot be opened from outside if any
of the two locks located inside has been fastened. It is true
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that when I had reached on the opposite side of the coach,
the door of the coach opposite to me was closed. It is not
true that I do not know as to how this door was opened. The
witness states that the said door was opened after the three
persons had gone inside. It so happened that Rafiq Bhatuk,
Irfan Bhobha and Imran Sheru went into the coach by
opening the door. The witness states that it was somewhat
open and they pushed it and went inside. It is not true that I
have not dictated in my statements given before the police
or before the Magistrate that the three persons who had
gone inside opened the door of the coach and Rafiq Bhatuk,
Irfan Bhobha and Imran Sheru pushed the door which was
halfopen and they went inside. It is true that I have
dictated in my statement before the Magistrate that
“meanwhile, the door was opened from inside.”
45 As per my say, there were total ten carboys at that
time. When the persons as stated by me were sprinkling
petrol in the coach from below, some petrol fell on the
ground also. I have not seen as to whether any amount of
petrol poured into the coach had fallen on the ground from
the coach or not. I had not seen that the petrol which got
spilled on the ground might have caused any flow. The
witness states that the soil got wet. I had seen passengers of
the coach no. S/6 going towards the side of Vadodara, from
the window where I was standing. The pile of stones upon
which I was standing was on the opposite side of the door
of the coach no. S/6 facing Godhra. It is not true that while
standing on the pile in this way, I cannot see any part of this
coach no. S/6 except this door. The offsidedoor of the
coach no. S/6 facing Godhra was closed. No passengers had
got down from the coach no. S/6 on the side where I was
standing. It is true that I have not dictated in any of my
statements given before the police or the Magistrate that
“before that, Mahebub Latika made holes in the carboy kept
below. He did so with a knifelike equipment.”
Salient features of testimony of P.W.237 Sikander Mohd.Siddiq
Shaikh are:
[1] He saw the parrot colour tempi on kachcha road near
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Talavdi.
[2] He saw stone pelting on the train at ACabin from there.
[3] Runs to the train.
[4] Climbs on the hip of the stone and saw Rajak Kurkur,
Bilal Badam, Hanif Badam, Siddiq Badam, Aiyub
Patadiya, Kadir Patadiya, Yakub Patadiya, Irfan Patadiya,
Rauf Kamli and brotherinlaw of Rajak Kurkur, Farukh
breaking the train by ironrods.
[5] He saw Rajak Kurkur climbing on the stair of S6 near the
door and from the open window therefrom the petrol like
inflammable from carboy was poured by Rajak Kurkur
and Salim Panwala was providing a support to the carboy
from below.
[6] Mehboob Latika teared open the vestibule situated
between two coaches, by means of knife.
[7] Before that Mehboob Latika pierced holes in carboys by
weapon like knife.
[8] During the opening created by tearing of vestibule,
Mehboob Latika followed by Jabir Behra obtained the
entry inside and at that point of time Saukat Lalu gave
one carboy each to them.
[9] Then Saukat Lala also entered into the coach and Rafik
Batuk gave carboys to him.
[10] All the three entered into S6 and opened the godhra
side door.
[11] Then Rafik Batuk, Irfan Bhoba and Imran entered into
the coach through the door with one carboy each.
[12] Other persons standing on the platform were sprinkling
petrol on the coach; they were Irfan Patadiya, Ramjani
and Hasan Lalu.
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[13] Bilal Haji and Bhana were also present there.
[14] Then Hasan Lalu burnt the rack and through it with the
help of stick into the coach through the broken window
and thus the coach was set on fire.
[15] All the activities were noticed by him by standing on the
hip of the stone.
[16] Thereafter on arrival of the train, the people started
running away and he also ran away.
[17] Learns that Umarji Molvi was helping the ghanchi
people who had assaulted the coach and were
caught.
[18] He and his family shifted to Surat and were residing the
land provided by the government in the river bed.
[19] Police contacted him and asked him to give the
statement to the officer at Baroda.
[20] To ensure that he withstand the statement, he was sent
to the Magistrate Court with the officer who recorded his
statement for his statement under Section 164 of Cr.P.C.
(Exh,1253).
[21] He was called for T.I.Parade for three to four times in
August 2005 and identified Aiyub Patadiya and in
September 2005 he identified Hanif Badam and in 2006
he identified Mehboob Latika.
[22] In the court he identified Hanif Badam, Siddiq Badam,
Jabir Behra, Irfan Bhoba, Rauf Kamli, Irfan Patadiya,
Mehboob Latika, Aiyub Patadiya, Molvisab and Bilal
Badam and at the last Hasan Lalu.
[23] On verification by the court it was found that for Irfan
Bhoba he identified Sikander Abdul Majid Kalander and
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Deshli and for Mehboob Latika he identified Faruk
Ahmed Yusuf Hasan.
[24] He also identified Ramjani bin Yamin Behra.
[25] Amongst the persons named by him in his evidence,
Kadir Patadiya, Yakub Patadiya, Faruk, Saukat Lalu,Rafiq
Bhatuk,Imran Sehru were not present in the court
whereas Rajak Kurkur, Bilal Haji and Soeb Kalander were
present.
CROSS:
[1] He was 35 years of age at the time of recording of his
statement.
[2] Disputes that he reveals his age as 19 years at the time of
police statement.
[3] The age of his brother Salim was 15 years and sister
Rehana was 12 years at the time of his statement.
[4] His father was selling taviz and rings.
[5] His father left them after 4 or 5 years stayed in Godhra.
[6] His statement was recorded after one and half month of
the incident in question though for six months after incident he
was hawking in water pouches and was free and available.
[7] He is unaware as to whether he knows Ajaykumar
Kanubhai Bariya.
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[8] He was taken for his T.I.Parade in 2004 in Mamlatdar’s
office at Godhra where one person had come for his
identification.
[9] He disputes that in the statement recorded on 21.09.2003
he stated that afraid of being caught by police he obtained a
rented house of brotherinlaw in single falia and went to reside
there.
[10] He also disputes that he stated in that statement that for
five or six months he stayed there, hiding from the police.
[11] He disputes having stated in his statement on 21.09.2003
that his father was beggar and was weak at sight and was
almost blind.
[12] He also disputed in his statement dated dated 22.09.2003
he stated that his father was a beggar in Indore and was weak
at sight and was almost blind.
[13] He also disputes having stated in his statement dated
2.09.2003 that his sisterinlaw had burn marks on her face, did
not have one eye and was seeing through one eye only and his
mother was unable to do the labour work.
[14] That when he was seeing the activities from the metal
hip, no stone pelting was being done and other people were
also there on the metal hip which was at a distance of 15 to 20
feet from the train.
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[15] The people were sprinkling petrol from carboys while
standing near the coach.
[16] In para 23 states that when Godhra side door was
opened, offside door was closed (so he added clear vision of
two doors while the passengers says that the coach was full of
passengers and luggages. The passengers also says that the off
side door was opened and they escaped therefrom).
[17] Admits having stated in his statement dated 21.09.2003
and 22.09.2003 that he is acquainted with the voice of Moulana
Yakub Punjabi.
[18] He also admits having stated in his statement dated
21.09.2003 and 22.09.2003 that he is acquainted with the voice
of Moulana Yakub Punjabi.
[19] He also admits having stated in his statement dated
21.09.2003 that from Ali Majid there was exhortation that
Islam is in danger, Masjid is set ablaze etc., and that voice was
that of Yakub Punjabi; he however explains that he had stated
that the voice was like that of Yakub Punjabi.
[20] He also admits having stated in his statement dated
21.09.2003 that at the very moment he saw Molvi Yakub
Punjabi on the terrace of Ali Masjid.
[21] Admittedly he stated in his statement dated 22.09.2003
that the person making exhortation as above was in the voice of
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Yakub Punjabi; explains that he stated that the voice was
similar to that of Yakub Punjabi.
[22] Admittedly he stated in his statement under Section 164
that there was exhortation from Ali Masjid and voice was that
of Yakub Punjabi Molvi; explains that he stated that the voice
was similar to that of Yakub Punjabi Molvi.
[23] Admittedly he stated in his statement under Section 164
that he saw Yakub Punjabi Molvi and others on the terrace;
explains that he stated that he saw a person similar to Yakub
Punjabi Molvi.
[24] Admittedly he accepted all his three statements as true
before SIT.
[25] Admittedly accepted the statement recorded by the
Magistrate as true.
[26] Voluntary to state that he saw from the window that the
people were rushing from godhra side platform part of coach to
vadodara side.
[27] Disputes that he did not state in his police statement or
the statement before the Magistrate that the three persons who
went inside opened the door and Rafik Batuk, Irfan Bhoba and
Imran Sehru opened half open door by a push.
13 Now we appreciate testimony of Ajaykumar Kanubhai
Baria, PW236, in his statement recorded by PW207 under Section 164
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of the Code, Exh.1233, stated as under:
“I do hereby on solemn affirmation state that
My name is : Ajaykumar
Fathers Name : Kanubhai Baria
Religion :
Age about : 17 / 18
Occupation : Unemployed
Residence : Rameshwar Society,
Behind Railway Ground, Godhra
District : Godhra.
ExaminationinChief
– he himself gives the statement on oath as per section 164 of
Cr.P.C.
I came to Signal Faliya in Godhra after coming out from my
house at 07:00 o’ clock in the morning on 27022002. From
there, I left to go towards the railway station after taking tea
kettle from the place of my boss Mehboob Popa. After five to
seven minutes of my reaching to the railway station the
“Deluxe” train arrived and I was selling the tea in this train.
This “Deluxe” train was going from Delhi to Vadodara. The
other hawkers were also there on Railway Station other than
me. Among them, there were (1) Yakub Patariya (2) Kadir
Patariya (3) Irfan Patariya (4) Babu Patariya (5) Mehbood
Chanda (6) Mehboob Popa (7) Shoeb Kalandar (8) Yunus
Ghadiyali (8) Hasan Lalu (9) Mehboob Latika we all persons
were hawking.
The “Deluxe” train departed. Thereafter, Sabarmati train
arrived within seven to eight minutes and stopped. At that time
we started vending at the station. At this time, the Karsevaks
got down from the train, and started to shout “Jay Shree Ram
– Jay Shree Ram”. During that time, Mehboob Popa came near
the engine running from the back side of the train and
Mehboob Latika also came behind him. I had asked to
Mehbood Latika that, “why are you running”, then he replied
to me that, “the Karsevakas are beating Siddiq Bakkar over
there at the back side”. Meanwhile, about six to seven
Karsevakas came near “S3” coach where we were standing
and started to ask me that, “whether you are a Hindu orPage 849 of 988
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Muslim”. I told that, “I am a Hindu”. Then they asked me to
speak “Jay Shree Ram”, so I spoke “Jay Shree Ram”.
Thereafter, the Karsevaks also asked Mehboob Latika that,
“whether you are a Hindu or Muslim”, but Mehboob Latika did
not reply. So the Karsevaks started to beat him. Hence,
Memboob Latika escaped from there and started shouting after
going on the hillock (mound) near engine that, “they are
beating over here”. I had also said that, you all run away from
here, all are assaulting over here. Thereafter, Sabarmati
Express started and while it had just moved about one coach
from its standing point, the train was stopped as the chain of
the train was pulled and immediately the stone pelting started
on the train from Signal Faliya. These stones were thrown by
the peoples of “Ghanchi” community. I have seen these stones.
I have seen (1) Mehboob Latika (2) Irfan Popa (3) Anwar
Kalandar (4) Yunus Ghadiyali (5) Irfan Patariya (6) Yakub
Patariya (7) Ibrahim Bhana (8) Shaukat Bibina (9) Shoeb
Kalandar (10) Hussain Lalu (11) Mustak (12) Raji Bhuriya
(13) Mehboob Popo (14) Mehboob Chandana throwing
stones. That time I went to the shop of Rashid Raji which is
located in Signal Faliya and stood over there. During that time,
12 to 13 rickshaws came from Station Road, Godhra. 4 to 5
persons were there in each rickshaw. I do not know them but
after getting down from the rickshaw, all of them were pelting
stones at the train. Meanwhile – Shaukat Lalu, Irfan Popa,
Rafik Bhatuk, Jabir Sheru, Ramjani, Hasan Lalu, Irfan
Pataliya, Mehboob Latika – all of them went to the backside
of the house of Razak Kurkur and Shaukat Lalu also told me
that, “you also come with us”. I did not know as to where
they were going, hence I went with them and stood outside the
house of Razak Kurkur and among all of the others, Shaukat
Lalu and Rafik Bhatuk went into the house and the remaining
were also standing outside. After some time, I saw that Rafik
Bhatuk came with a carboy and gave to Irfan Bhopa and he
told me that, “keep this carboy in the rickshaw”. Due to fear I
kept this carboy in the rickshaw. It was smelling like kerosene
from this carboy. They came out after some time and the
carboys were there in the hands of all and all these carboys
were kept in rickshaw. I do not know the number of rickshaw,
but its color was like “bottle guard”. This rickshaw was like a
Carriage Tempo. There was a Mosque like sign at the lower
part of the front side glass of this small tempo rickshaw and
small grill was there at the back side and it was parked in a
manner that the front part was facing towards the road.
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Ramjani came and sat on the driving seat of this Tempo
Rickshaw and Mehboob Latika sat on the left side. Saukat
Lalu sat on the right side. Among these persons, a long knife
(dagger) was there in the hand of Mehboob Latika and pipe
were there in the hand of Saukat Lalu. Jabir, Hasan Lalu,
Sheru, Irfan Bhopa and Rafik Bhatuk were sitting at the
backside of rickshaw and they also made me to sit in
rickshaw by giving me threat. I did not know as to where this
rickshaw was going. Meanwhile when the rickshaw came out
from the street on the road Sabarmati Express had departed at
the time and the last coach of the rear side was at the end of
the platform and all the Ghanchi people standing over there
were running here and there. During that time, the rickshaw
reached near culvert and the Sabarmati Express train was
stopped. These people had taken this rickshaw of ours near “A”
Cabin Ali Hussein Mosque, and stopped the rickshaw over
there. During that time, Saukat Lalu got down and ran with a
carboy and all sitting in the rickshaw got down after him and
those persons also ran with the carboys. Shaukat Lalu told me
that, “you also come with us” and I also went with them due to
fear. All these people started to go towards coach no. S2 from
the engine side. Meanwhile – Mehboob Chanda, Mehboob
Popa, Irfan Patariya, Kadir Patariya, Shoeb Kalandar, Anwar
Bala, Anwar Kalandar, Yunus Ghadiyali, Mustak, Bhriyo Raji,
Shaukat Bibina, Kadir Patariya, Babu Katariya – these people
were throwing stones on the train and were breaking the
windows of coach no. S2. At that time Mehboob Chanda
took the carboy which was with me and gave the carboy of
Hasan Lalu to Irfan Bhopa and the carboy of Mehboob
Latika was given to Saukat Lalu. They were coming towards
these coaches from the engine side by crossing between the S2
and S3. During that time, Mehboob Chanda ignited
something like cloth and threw it in the coach from the
broken window of coach no. S2 and this burning cloth was
thrown out by the passengers who were sitting inside.
Thereafter, these persons turned towards coach no. S6. Stone
pelting was going on over there and at that place Sheru was
trying to break the windows of any of the coaches from S2
to S6 by giving blows with pipe. All these people reached
near coach no. S6 and cut open the curtain [vestibule],
which was between wagon no. S6 and S7, with a knife. These
persons climbed up and Jabir had also climbed up and they
were trying to break the door of coach no. S6. Holes were
made on the upper side of carboy with a knife. Mehboob
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Latika gave one carboy to Jabir and Saukat Lalu also
climbed up the coach. In the meantime, Saukat Lalu entered
from the canvas [vestibule] way and opened the main door
facing towards “cabin no. A” of coach no. S6 and Rafik
Bhatook gave a carboy after making holes. Rafik Bhaook
climbed up the coach after him, from the door. Sheru and
Irfan Bhobha also climbed up with them. At this time, I was
standing in front of coach no. S6. I came near the door and
watched as to what these people are doing. At that time,
these persons were pouring the kerosene into the coach and
Hasan Lalu and Ramzani were pouring the kerosene into the
coach from outside. During that time, Mehboob Popa, Yunus
Kalandar and Yakub Patariya – these persons were breaking
the doors and windows of S6. Meanwhile, Hasan Lalu
ignited a cloth and threw the same into the coach from a
broken window and smoke started to come out after
sometime. Much outcry had taken place over there. I do not
know as to when and at which place did the people, who were
inside the coach, got down. This coach started burning slowly.
During that time, I started running towards “A – Cabin” Signal
Faliya road and when I looked back after reaching at the
culvert, a fire extinguisher had arrived and Rafik Bhatook and
other persons had blocked the way of the fire engine and they
were also pelting stones at it. Thereafter, I fled to my house
and after reaching there, I saw that, “Ghanchi” people had
come to burn our houses. The Ghanchi people of our
surrounding area did not allow them to burn our house. We
had gone away to the house of my uncle in Rameshwarnagar
Society due to fear. Thereafter, curfew was imposed in Godhra
City.
These persons had threatened me that ‘if you inform anyone or
the police about burning of this coach, we will kill you and
your family members’. Despite that, I am stating this fact
before you voluntarily with open heart. Such is my fact.
Godhra / camp Anand. Before Me.
Dt. 09072002 Sd/illegible dt. 972002
Time - 15:00 hrs.
J.M.F.C. (Rly).
Godhra.
Sd/ Ajaykumar Kanubhai Bariya
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The witness had willingly stated the aforementioned statement
on oath before me in clean and healthy condition which I had
written.
The statement is read over to the witness
and he admits the same to be true”.
14 Ambalal Ranchodlal Patel, Railway Judicial Magistrate,
Godhra PW207 admits to have of followed statutory requirement
under Section 164 of the Code, 1973.
In crossexamination, Ajaykumar Kanubhai Baria, PW236, a
star witness of the prosecution in para 75 to 79, deposed as under:
“75 When all came near the house of Rajak Kurkur, I
was standing near the bicycle shop. At that time, three
persons entered the house of Kurkur. At that time, out of
them, one Irfan Bhobha gave a carboy (small container) and
I put it in the rickshaw. I do not know as to whether carboy
given to me by Irfan Bhobha was given to Irfan Bhobha by
Rafik Bhatuk or not. At present, I do not remember that I
dictated in my statement before the Magistrate that, “When I
saw, Rafik Bhatuk came with a carboy and give it to Irfan
Bhobha.” It did so occur that Rafik Bhatuk gave me a carboy.
It did not so occur that I dictated in my statement of
04/07/2002 that Rafik Bhatuk gave me a carboy and I put it
in the rickshaw. It did not so occur that not three persons,
but all went into the house of Rajak Kurkur together.
76 The capacity of carboys was 20 litres. There
were eight or nine carboys. Whether a tempo was as big as a
passenger rickshaw or not. In my opinion, it was a little
larger than passenger rickshaw. I cannot state as to how
long its rear body was. Out of carboys, one or two carboys
were also having capacity of five or ten litres. It was not
such that all the carboys were having capacity of 20 litres
only. Seven persons were standing in the rear part of this
tempo. It did not so occur that eleven carboys were put in
the rear part of this tempo. It is not true that I dictated in
my statement of 04/07/2002 that, “11 persons were sittingPage 853 of 988
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with carboys in the tempo.” It is not true that I cannot state
as to whether there was petrol or kerosene in this carboy.
The witness states that it was petrol. I state on the basis of
smell that there was petrol in the carboy. It is true that
smell of petrol and kerosene is different. It is not true that I
dictated in my statement before the Magistrate that there
was kerosene in the carboy. It is true that when we were
going by tempo nearby Ali Masjid via Singal faliya and
underbridge, mobs were running away on the way. It is
true that I did not know as long as tempo reached Ali Masjid
as to where and why we are to go. When tempo reached Ali
Masjid, I did not have any particular reason to see towards
Sabarmati Express train. The witness states that it was
standing there, therefore, I saw it. It is not true that one
could see train where it was standing from signal faliya.
When we left with tempo, I saw train first of all after coming
out of street. The witness states that at that time, last coach
was at the end of platform. When we reached near Ali
Masjid, train was standing near ‘A’ cabin. The train stopped
near ‘A’ cabin for three minutes. I cannot state as to whether
tempo was taken ahead through the persons of mob on the
way or not. I do not know as to whether open chawk is near
Ali Masjid or not. I do not know as to whether there is a well
near Ali Masjid or not. If one looks facing track at the place
where tempo was parked, Ali Masjid was towards left hand.
A street of fakir is situated between Ali Masjid and railway
track. We went to railway track via street of fakirs. When we
went to track, each one of us was armed with carboys. The
rickshaw was parked a little ahead of street of fakir, and we
went to track from there on foot. There were no wild babool
trees between Ali Masjid and track during that period. ‘A’
cabin is 500600 feet far from Ali Masjid. This cabin is
situated towards Godhra side from Masjid. It so occurred
that we went to track via foot track situated behind ‘A’ cabin.
We went towards engine after reaching the track. At that
time, engine was about ten coaches far from ‘A’ cabin. When
I reached there, stone pelting was underway. It did not so
occur that stone pelting may have occurred after we reached
there. Stone pelting was being made on coach no. S2 at that
time. We went near S2 taking carboys. In my opinion, the
cloth thrown into coach no. S2 was soaked by spilling liquid
over it from the carboy which I had given to Mahebub
Chanda. I do not know as to whether the said cloth was
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Chanda soaked cloth, he put cloth down. When the said
cloth was soaked, liquid from the carboy was also spilled
over ground. The said cloth was lit and thrown into coach
through window, and the same burning cloth was thrown
back outside the window. I do not know as to whether this
cloth was put out or not after it was thrown outside
window.
77 When we went near coach no. S6, mattress and
cloth were set on fire. I do not know as to who brought
mattress. The mattress and cloth were put on the ground,
liquid from carboy was poured over them, they were set on
fire and thereafter thrown into coach. At that time, liquid
from the carboy spilled over ground. The stopper of door,
belonging to coach no. S6 and situated between coach no.
S6 and S7, was broken kicking the door. I do not know as
to whether the said stopper was at the upper part or lower
part of the door. I have not clearly dictated in my statement
before the Magistrate the name of Mahebub Latika or any
other person, who cut curtain between coach no. S6 and S
7. At that time, 6 persons entered the coach. I have not seen
as to whether they sprinkled liquid in the coach or not. The
witness states that I saw that remaining three persons were
sprinkling liquid from outside. Three persons were
sprinkling liquid on the coach by splashing from carboys
held in both hands. The splash of liquid from the carboy was
entering into window at that time. It is true that liquid from
the carboy was falling down at that time. I cannot state as to
whether similarly these three persons sprinkled all the
liquid from these three carboys or not. At present, I do not
remember as to how many windows of coach no. S6 were
broken at that time. More than one window were broken.
The burning mattress and cloth were thrown into the coach
through window. At that time, I cannot state as to whether
six persons, who went inside, were in the coach only or not.
It is not true that stone pelting over coach no. S6, act of
breaking windows and act of sprinkling liquid were being
committed simultaneously. It is not true that holes were
made in the carboys by remaining between coach no. S2
and S6. The witness states that we were making holes in
the carboys remaining between coach no. S6 and S7.
78 When coach was set on fire, police did not
come. I ran away back towards ‘A’ cabin from the place ofPage 855 of 988
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occurrence. I do not know as to who was with me while
running away. I cannot state as to whether anyone, out of
persons who set coach on fire, was with me or not while
running away. At present, I do not remember as to whether
I dictated in the statement before the police the names of
persons, who were with me when I ran away from the place
of occurrence. At present, I do not remember that any
familiar person was with me at the time of running away. In
my opinion, the reason for forgetting the same is that
incident has occurred many years ago. I dictated details,
dates, etc. in the examinationin chief as per my memory.
When I was running away towards ‘A’ cabin, a lot of people
were running away after me. They were running away to
save their lives. I have not seen as to whether anyone, out of
absconding persons, had empty or full carboys or not. I do
not know as to whether anyone, out of them, was equipped
with weapons or not. I have not seen as to whether any
empty or full carboy, out of eightnine carboys, was thrown
away near coach no. S6 or not. It is not true that when we
went towards place of occurrence from tempo, we went with
eight or nine carboys and two carboys were left in the
tempo. The witness states that there were only eight or nine
carboys in the tempo.
79 When I ran away from ‘A’ cabin and reached near
culvert, I saw a fire brigade. It did not so occur that I may
have also seen police personnel there at that time. It did not
so occur that when chain pulling was made first time, stone
pelting may have been made from road of signal faliya. It is
true that I have dictated in my police statement of
04/07/2002 that Irfan Pataliyo, Yakub Pataliyo, Mahebub
Popa, Soeb Kalandar, Iliyas, Mahebub Chanda, Babu
Pataliya, Mustak, Haji Bhuriya, Rahif Bhatuk, etc. were
making stone pelting on the train from signal faliya road at
that time. It is true that at that time, ten to twelve rickshaws
came there and there were four to five persons in each
rickshaw. It did not so occur that at that time, not ten to
twelve rickshaws, but ten to twelve persons may have come
there by rickshaw. It is true that I have dictated in my police
statement of 04/07/2002 that, “Meanwhile when I saw,
Ghanchi people came by ten to twelve passenger rickshaws
from station road side.” It is true that I have not dictated in
my police statement of 04/07/2002 and 05/07/2002 and in
the statement of 09/07/2002 before the Magistrate that, “AtPage 856 of 988
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that time, Hasan Lalu and Mahebub Latiko also reached
near S6 and stone pelting was also underway there.” I do
not remember that I did not dictate in my statement before
the Magistrate that, “Therefore, a mob of Ghanchi people
gathered from Singal faliya.” It is not true that I have
dictated in my statement before the Magistrate that,
“Therefore, Mahebub Latiko ran away from there and I also
spoke after reaching hillock ahead of engine that, “Run away
from here. All are beating here.” Thereafter, Sabarmati
Express departed.” I dictated such fact in my police
statement of 04/07/2002. It is true that I have not dictated
in my statement before Magistrate that, “Meanwhile, I was
standing on the pile of metal.” I have stated in my earlier
deposition regarding efforts being made to break door. The
same was stated regarding corridor between coach no. S6
and S7. It is not true that I was not present at the time of
incident or I have not eyewitnessed incident, but I give a
false deposition at the instance of police”.
15 Further, analysis of evidence of PW236 Ajaykumar
Kanubhai Baria is as under:
Why Ajaykumar Kanubhai Bariya’s evidence should be believed.
Is it spontaneous ?
15.1 Mentions about having seen a tall and fair man at 3:30 and
also in evening (with Rajjak Kurkur) on 24.02.2002, while going Aman
Guest House. This fact is not connected with the offence yet. He has
mentioned that he went to Village Kerol to attend a marriage party on
26.02.2002 and returned at 8:00 p.m. At that time, he sees Rauf Kamli,
Yakub Patadiya, Ayub Patadiya, Kadir Patadiya, Mehboob Popa,
Mehboob Chanda, Babu Patadiya, Irfan Patadiya and Irfan Bhana near
Aman Guest House, but does not attribute any criminal act to them.
15.2 On 27.02.2002, in the routine course of his business, he
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collects 50 cups of tea in a tea kettle and goes to Platform No.1. Here
also he does not refer to any conspiracy.
15.3 Sees Yakub Latiko, Hasan Lalu, Saukat Lalu, Anvar
Kalandar, Soheb Kalandar, Anvar Bala, Mutak, etc. on the platform
selling tea, when Deluxe Train came from Dahod. At that time,
Sabarmati Express arrives, hears chants of ‘Jay Shri Ram’ ‘Jay Shri Ram’
uttered by Karsevaks (this version is supported by many witnesses). He
was near S/3 compartment.
15.4 At that time, sees Mehboob Popo followed by Mehboob
Latika running towards engine side – asked them what has happened,
Mehboob Latika replies Siddiq Bakkar had quarreled with Karsevaks (the
factum of this quarrel is not disputed either by the prosecution or
defence) – mention what was seen by him – does not attribute any
criminal act to Mehboob Latika and Siddiq Bakkar.
15.5 Narrates that the Karsevak asked him to identify him
whether he was Hindu or Muslim, the Karsevak asks him to utter and he
utters ‘Jay Shri Ram’ ‘Jay Shri Ram’, but when they asked Mehboob
Latika to utter those words, he was silent whereupon Mehboob Latika
was beaten by mob, who, then after getting himself released runs
towards engine, climbs the hill and calls for the help. Ajay Bariya also
joins him and thereupon the people entered through hole in wall and
started pelting stone which was defended by Karsevaks by throwing
stones (pertinently in this part of his testimony). He mentions incidents
as they occurred without attributing anything to the accused persons,
however, refers to the stone pelting at that point of time. Whether this
fact of stone pelting is supported by other witness is required to be
verified. However, the defence story is that at that time, many of thePage 858 of 988
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witnesses ran for safety in the train with an apprehension that there was
stone pelting.
15.6 According to this part of the testimony of the witness, this
first incident occurred pretentiously on account of Siddiq Bakkar and
thereafter Mehbooob Latika beaten by Karsevak and during that time,
many of the accused were seen by him selling refreshments on Platform
No.1. Thus, he does not involve them in any offence at that point of
time.
15.7 Another thing which is required to be noted from this part
of the testimony of this witness is that after the quarrel, aforestated
persons were running towards engine (none of the railway police
officials mention that Siddiq Bakkar – Mahebub Latika complained to
him of they having been beaten and the officer having advised him to
lodge complaint).
15.8 It appears from the testimony of this witness so far that
everything was cool and calm before the said persons were beaten. The
movement of the persons named in Para4 was not found to be
suspicious by this witness.
15.9 He corroborates the fact stated by almost all the witnesses
that the train restarted after one or two minutes and stopped because of
chain pulling after hardly leaving by one or two coaches.
15.20 He goes to his place of business at `Chanu Khoku tea chop’
and notices stone pelting from the Bakora , the fact that there were
stone pelting after the train stopped on chain pulling (there is diverse
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accept the fact that as some of the Karsevaks were left behind, and the
train started), the chain had to be pulled from four coaches to enable the
Karsevak to board the train is corroborated by almost all the witnesses.
He notices various accused viz. Yakub Patadiya, Iliyas Mulla, Mehboob
Popa, Haji Bhuriyo, Rafik Bhatuk, Mustak pelting stone on the train.
Reaction of the persons, who were beaten, though not justified, would
be the same as the mob indulged into stone pelting to exhibit their
anger.
15.21 The witness refers to the metal heap near S/6. He further
does not refer to as to how the train moved to ACabin and how it
halted there but refers to the incident near ACabin.
15.22 In the crossexamination in Para73, he mentions that at the
time of first stone pelting, he was near Bakora [hole].
15.23 No doubt, minor discrepancies are are noticed in his
statement about Jabir, who is said to be one of the conspirators, in his
confessional statement under Section 164 of the Code of Criminal
Procedure, 1973 (for short “Cr.P.C.”) than what is stated by Bariya in his
statement.
15.24 Admittedly, on 03.07.2002, he was called in the Police
Station but no statement was recorded.
15.25 Cutting of vestibule is corroborated by scientific evidence
and knocking of the door is corroborated by many witnesses.
15.26 In his statement before police mentions use of petrol, but in
the statement under Section 164 of the Cr.P.C. mentions use of
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kerosene. (Para6) Names 10 persons running with carboys with petrol,
no other eyewitnesses, who were on the platform and near ACabin
corroborate this statement. But the fact remains that the coach was
burnt by inflammable liquid containing hydro carbon as per FSL report.
15.27 Goes to the Magistrate for recording of the statement under
Section 164 of the Cr.P.C. without knowing as to what such a statement
is and does not explain as to why he had to go all the way to Anand, on
09.07.2002 for recording the statement under Section 164 of Cr.P.C.
though on other days, the Magistrate was available in Godhra.
15.28 However, it is not denied that carboys were filled with
inflammable material.
15.29 This witness is no doubt not in a position to say that how he
came to know about Magistrate holding the court in Anand, but the fact
remains that he being a tea vendor at railway station, Godhra and
familiar with court of railway magistrate to be at a safer side and to
protect his identity approaching the learned Magistrate at Anand holding
the Court at Anand by itself is no ground to disbelieve this witness. The
following circumstances will reveal that a semiilliterate boy, aged about
17 to 18 years having witnesses the crime of this magnitude would be
petrified and reluctant to disclose correct and full facts initially. Certain
queries put forth by the Investigating Officers and inability on his part to
reply them immediately based on memory and after mustering the
courage, names of accused were given and though insignificant
discrepancies, minor contradictions in statement recorded under Section
164 of the Cr.P.C. or in his testimonies before the trial court
substantially remain corroborated about setting S/6 coach on fire
pursuant to conspiracy hatched. However, Sikandar Mohammad Shaikh,
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hawker at Godhra Railway Station PW237 and Bhikhabhai Harman
Baria, hawker at Godhra Railway Station PW206 also confirm that
coach S/6 was set on fire.
15.30 Admittedly, he was called in the Police Station on
03.07.2002 on which date, his statement was not recorded, but he was
under fear.
15.31 Admittedly, his age was between 17 and 18 years.
15.32 He did not have as much courage he had at the time of his
deposition i.e. 01.04.2010. At the time of recording of the witness and
therefore, prone to pressure and influence. He was afraid of police.
15.33 Admittedly, after 04.07.2002, when his first statement was
recorded, he was under constant fear.
15.34 Admittedly, he was afraid when he went to Police Station
before two days i.e. 04.07.2002 and therefore, police could not record
his statement.
15.35 Admittedly, on 02nd and 03rd July, 2002, he was
interrogated by Noel Parmar without recording of his statement, in
presence of Rakesh Asthana and J.K. Bhatt.
15.36 Admittedly, he was afraid of revealing the names of the
accused.
15.37 Admittedly, he wanted to give his statement on 02.07.2002.
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15.38 Admittedly, he replied to the queries of the police on
02.07.2002, but the police was not satisfied.
15.39 Admittedly, on 03.07.2002, he was fetched by the police
personnel from his house.
15.40 Admittedly, the witness had taken time to reply question in
the crossexamination.
15.41 Admittedly, on 03.07.2002, the statement of the witness
was being recorded and was read over to him (but not made a part of
the proceedings).
15.42 Admittedly, he was confident after recording of the
statement on 04.07.2002 that he would not be arraigned as accused and
he was also assured that there would not be further harassment from the
police.
15.43 No witness corroborates the fact that Mehboob Latika was
piercing the holes in the carboys on the land between S/6 and S/7.
15.44 Story deposed by other witness is that all the doors and
windows were closed during the incident and windows were broken and
therefrom offending material landed inside the coach window was full of
passenger (about 150 or 200) and also luggage and even the passage
near the latrine was occupied by the persons and the luggage which
made it impossible for anyone to enter into the coach foreseeable. The
accused in the examination in chief fails to recollect their names in the
crossexamination (Para78). However, knocking of the door scratches,
bent stoppers, FLS report get corroboration from FSL report and other
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PWs.
16 In Para79, assigns incriminating roles to Hasan Lalu and
Mehboob Ratika for the first time in the Court, no such statement was
made by him in his statements dated 04.07.2002, 05.07.2002 and
09.07.2002. Half names of the accused given in the statement dated
04.07.2002 full names in the statement dated 05.07.2002 again half
names in the statement under Section 164 of the Cr.P.C. That the above
aspect of initially giving half names of the accused and then full names
by itself is not material contradiction since identity of the accused stands
established.
17 It appears that the presence of the witness at the scene of
the offence i.e. Platform No.1 and ACabin cannot be doubted inasmuch
as he was the tea vendor employed with some of the accused and
therefore, his presence at the railway station was natural. Initial part of
the incident i.e. the quarrel, running of two persons Mehboob Latika and
Mehboob Popa, beating of Siddiq, seeking help of other persons and
rushing of mob through Bakora and stone pelting, halting and
movement of the train at several points i.e. on the platform and ACabin.
Pelting stones and throwing of the inflammable from outside of the train
are all facts corroborated by other witness and therefore, to that extent,
the witness appears to be reliable.
18 Before we deal with eventwise comparative chart of
different events of PW236 and PW237 and confessional statement of
Jabir Binyamin Behra under Section 164 of the Code, 1973 and
testimonies of witnesses before the court, we find following minor,
insignificant contradictions, omissions and improvements in the
statement of evidence of Ajay Kanu Baria, PW236, a star witness of
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the prosecution which do not touch the core of the case of the
prosecution.
19 In the first instance of stone pelting, Yakub Patadiya, Imran
Musa, Haji Bhuriyo, Rafik Batuk and Mustak named in the testimony
whereas in statement under Section 164 of CR.PC., Yakub Patadiya and
Mehbub Popa.
20 No material contradictions in naming the persons who
going to or going behind the Aman Guest House. The persons named
are (01) Shaukat Lalu, (02) Mehbub Latiko, (03) Ramjani, (04) Rafik
Batuk, (04) Irfan Bhopa, (05) Irfan Patadiya, (06) Hasan Lalu and (08)
Jabir. Statement under Section 164 of the Cr.PC., People going inside
the house of Rajak Kurkur, Shaukat Lalu, Rafik Batuk and evidence
before the Court Shaukat Balu, Imran Sheikh and Rafif Batuka.
21 Insofar as number of carbos are concerned, Shaukat Lalu,
Irfan Bhopa, Rafik Batuk, Hasan Lalu and Latika are the persons named
in 164 statement, who want to Aman Guest House. Though the witness
is not clear, as to how each of these persons were having carbos smelling
kerosene states that all of them were holding carbos and all carbos were
loaded in the rickshaw. (Paragraph No.76 in the crossexamination,
replies that one or two carbos were of the capacity of five or ten liters
and it was not as if 11 carbos were loaded in the tempy? He also
discloses the statement in question made under Section 161 made on
04/07/2002 that “people were keeping the tempy and each one of them
were holding carbos). He also states that all the aforesaid persons
boarded rickshaw with Carbos and at ‘A’ cabin, Shaukat Lalu and all
others dis embarrassed the rickshaw with carbos. He was holding one of
the carbos. However, it is not state as to how all of 08 or 09 carbos were
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used in the statement under Section 164 of Cr.PC. In the testimony
explains how and who used the carbos. In the statement, reference to
kerosene like smell from carbos whereas in the testimony refers to
petrol.
22 Eight persons boarding rickshaw as per statement under
Section 164 in the version before the Court, 09 persons boarded
rickshaw. Addition is Irfan Patadiya occupying backside otherwise, all
the persons are come exactly and their place of sitting in the rickshaw
also shown exactly the same in both the statements.
23 In 164 statement, out of the persons sitting in the front side
of the tampy, Mohmmed Latika had a long knife and Shaukat Lala had a
pipe; whereas in the version before the Court Shaukat Lala and Irfan are
shown with one pipe each and Mohmmed Latika and Jabir are shown to
have one long knife each. Benefit of passage of time between the
statement dated 08/07/2002 recorded in the year 2010 can be given for
such minor contradiction ? Is it that such improvements is made to
achieve consistency in the confessional statement dated 05/02/2003 of
Jabir?
24 AccusedJabir is said to have given his statement under
Section 164 of the Code, admitting conspiracy. According to his version,
Irfan Patadiya, Yakub Patadiya, Lalu and Yunus Ghadiyali were the
persons involved in the 1st stone pelting. He is alleged to be active
member in the conspiracy, but does not name.
25 Even nature of contradictions as above, along with some
contradictions, omissions and improvements in the statement of
evidence of Ajay Kanu Baria, we now deal with the submissions of
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Mr. I.H.Syed, learned counsel for the defence, as under:
26 That comparative chart submitted by Mr. I.H.Syed,
learned counsel for the defence of versions given by Ajaykumar
Kanubhai Baria, PW236; Jabir Binyamin Behra, an accused and
Sikandar Mohammad Sidak Shaikh, PW237, in their statements
recorded under Section 164 of the Code, 1973 and the testimonies of
Ajaykumar Kanubhai Baria, PW236 and Sikandar Mohammad Sidak
Shaikh, PW237 in the court about different events, if closely examined,
it is about members of unlawful assembly came into rickshaw by Jabir
Binyamin Behra, in his confessional statement naming or not naming
assailants, addition or improvement about member and names of such
assailants, and also about pelting of stones from Signal Falia, people
going towards and inside the house of Razak Kurkur and number of
carboys coming out Razak Kurkur’s house, etc.
27 First six events. In the statement under Section 164 of the
Code, 1973 and testimonies by PW236 have common names and on the
contrary PW236 in his statement under Section 164 of Code, 1973
recorded on 09.07.2002 is consistent in his statement before the court
about event No.4, people going towards / inside the house of Razak
Kurkur. Out of all these names, 5 names of the accused are also given
by Jabir Binyamin Behra in addition to presence of PW236 in his
confessional statement under Section 164 of Code, 1973 recorded on
05.02.2003. It is not relevant whether accused had 3 carboys, 5 carboys,
7 carboys or 9 carboys, so stated by Ranjitbhai Jodhabhai Patel, PW224,
Prabhatsinh Gulabsinh Patel PW231, PW236 and that confessional
statement of Jabir Binyamin Behra, but the fact remains that carboys
were filled in with inflammable material loaded into rickshaw which was
taken to coach S/6 of the train. About discrepancy of tempi, again
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minute analysis made reveal that the tempi was having space to
accommodate accused and carboys. The colour of tempi was parrot
green or light green like bottlegourd is again creating no doubt about
usage of tempi in commission of crime. Even identity of inflammable
liquid in the carboys where it was having smell of kerosene or petrol and
identification of such inflammable liquid by this PW236, ultimately was
confirmed that it was petrol by FSL. The description of assailants having
knife and pipe which could be carried easily in the tempi and it is also
very natural that PW236 was not having any idea about hatching of
conspiracy. About event No.9 pertaining to Travelling and stoppage of
tempi with carboys and persons, confirms that Signal Falia and Ali
Masjid, Fakir ni Chawl, etc. were located in the same area from where
tempi had travelled and minor discrepancy in describing the travel route
by PW236 cannot be said to be any improvement or to corroborate
testimony of PW237 and of map of scene of offence and topography
around scene of offence nearby A Cabin also confirms version of PW236
and PW237. Even about event Nos.10 and 11 pertaining to Number of
carboys unloaded from the tempi near “A Cabin” and Attack on S2 coach
by assailants, whether a particular accused was sitting on backside or
front side of the tempi and that PW236 is consistent in his statement
about attack on S2 coach and participation of 12 accused for this event
of attack on coach S2, 7 assailants, who were named in earlier statement
under Section 164 of Code, 1973 dated 09.07.2002 are also named in
his testimony before the court. That not naming about presence of PW
236 by PW237 in his statement under Section 164 of the Code, 1973 or
in the testimonies before the court amidst commotion, confusion and
continuous stone pelting and circumstances prevailing then do not affect
the core of case of prosecution. Likewise, other events about exchange
of carboys between accused persons and throwing of articles inside S2
coach and movement towards S6 coach, description of assailants and
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their role in hitting windows with iron pipes, trying to break the hose
pipe have common features about damaging the train with iron rods and
even in the confessional statement of Jabir Binyamin Behra and
statement under Section 164 of PW237 and the testimonies in the
court. Event No.15 about Role attributed to Razak Kurkur, one of the
accused near S6, PW236, though had not stated anything in his
statement under Section 164 of Code, 1973, but his version in the court
is on par with version of PW237 in the statement under Section 164 of
Code, 1973 and in the court and also about role of other accused. For
the next event No.16 about cutting of vestibule cover, climbing and
entering coach S6, statement of PW236 and PW237 under Section 164
of Code, 1973 recorded on 09.07.2002 and 22.09.2003 respectively and
in their testimonies in the court contain striking similarities about role of
accused, which is reproduced herein below:
28 Version of Ajay Kanu Baria PW236 in statement under
Section 164 of Code, 1973 is as under:
“1. Reached near S6 and cut the curtain between the S6
and S7 with knife and they climbed and Jabir also climbed
and was trying to break door of S6 and made holes on the
top of the carboy with knife.
2. Mehboob Latika gave one carboy to Jabir and Shaukat
Lalu also climbed the coach and at that time Shaukat Lalu
opened the main door of S6 towards “A cabin” and Rafik
Bhatuk gave carboy after making holes and Rafik Bhatuk
climbed and went into the door and Sheru and Irfan Bhobha
also climbed and went inside”.
Version of Ajay Kanu Baria PW236 in statement recorded in
court, is as under:
“1. After reaching S6, Mehboob Latika made holes in the
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carboy with his knife and cut the cloth curtain between S6
and S7 with knife and Mehboob Latika entered and after
him Jabir also went inside. Both of them kicked the
vestibule door and broken the stopper and opened the door.
At that time Shaukat Lalu gave one carboy to Mehboob
Latika and one carboy to Jabir and from the same route
Shaukat also went inside and Rafit Bhatuk gave Shaukat one
carboy.
2. After going inside Shaukat Lalu opened the Godhra
side main door and from there Rafik Bhatuk, Irfan Bhobha
and Imran Sheru entered with one carboy each.”
29 Version of Sikandar Siddiq Shaikh PW237 in statement
under Section 164 of Code, 1973 is as under:
“Maheboob Latika cut the curtain between two coaches with
knife and thereafter, Maheboob Latika, Jabir Behra and
Shaukat Lalu carrying a carboy each entered into the coach.
At that time Rafiq Bhatuk, Irfan Bhopa, Imran Sheru, Hasan
Lalu, Rauf Kamli, Irfan Patadiya, Ayub Patadiya were
standing on the ground near the coach and in the meantime
the door was opened from inside then Rafik Bhatuk, Irfan
Bhopa, Imran Sheru carrying one carboy each entered the
coach from the open door. Faruq Bhana and Bilal Haji also
came”.
30 Version of Sikandar Siddiq Shaikh PW237 in statement
recorded in court, is as under:
“At that time Mehboob Latika had cut the curtain between
two coaches by a knife. Before that, Mehboob Latika had
made holes with knife like tool in the carboy which was kept
on ground. After tearing the curtain Mehboob Latika entered
the coach and then Jabir Bahera had also gone inside.
At that time Shaukat Lalu had supplied one carboy each to
both of them.
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Thereafter, Shaukat Lalu also went inside. At that time Rafiq
Batuk gave one carboy to Shaukat Lalu and thereafter, Rafiq
Bhatuk, Irfan Bhobha and Imran Sheru went inside the S6
coach and the S6 Godhra side door was opened and from
there Rafiq Bhatuk, Irfan Bhobha and Imran Sheru entered
the coach with a carboy each”.
31 That both the above versions of above PW236 and PW237
have minor discrepancies about either putting a carboy on the ground
for handing over such carboy to one accused by another accused and
how entry was made by cutting the vestibule but it clearly emerges on
record that all conspirators, who hatched the conspiracy were present at
the scene of offence to execute the conspiracy and witnessed by PW236
and PW237. Not only that but confessional statement of Jabir
Binyamin Behra under Section 164 dated 05.02.2003 substantially
support statements and testimonies of both the above PW236 and PW
237. Even event No.17 about throwing of the burning rags and S6
setting on fire, we reproduce the relevant testimonies of PW236 and
PW237, which read as under:
32 Version of Ajay Kanu Baria PW236 in statement under
Section 164 of Code, 1973 is as under:
“1. At that time Hasan lalu had thrown a burning rag from a
broking window and after some time there was smoke and
there was lot of commotion/chaos.
2. He doesn’t knew how and when the persons of S6 coach
got down and the coach had started catching fire slowly and
slowly”.
33 Version of Ajay Kanu Baria PW236 in statement recorded
in court, is as under:
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“1. At that time Hasan Lalu, Irfan Pataliya and Ramzani
were sprinkling petrol from outside from broken window
inside the coach and Hasan Lalu burnt a rag and threw
inside the S6 coach from the broken window. Immediately
there was a “????” and there were shouts in the coach”.
34 Version of Sikandar Siddiq Shaikh PW237 in statement
under Section 164 of Code, 1973 is as under:
“When Sikandar was standing on the stone heap at that
time Faruq Bhana and Bilal Haji reached there. At that time
Hasan lalu, Ramzani and Irfan Patadiya were pouring petrol
like substance on the broken window of the coach.
He saw Hasan Lalu throwing burning cloth inside the coach
from the broken window.
35 Version of Sikandar Siddiq Shaikh PW237 in statement
recorded in court, is as under:
“Hasan Lalu, Ramzani and Irfan Patadiya were pouring
petrol like substance in the broken window”.
Event No.18 Incident of fire in S/6. For the sake of convenience,
we reproduce statements and testimonies of PW236 and Bhikhabhai
Harmanbhai Baria PW206:
36 Version of Ajay Kanu Baria PW236 in statement under
Section 164 of Code, 1973 is as under:
“1. At that time Ajay was standing in front of S6 and he
came to the door to see what they are doing? He saw that,
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kerosene from outside the coach.
2. At that time Anwar Popa, Yunus Kalandar and Yakub
Pataliya were breaking windows and doors of S6″.
37 Version of Ajay Kanu Baria PW236 in statement recorded
in court, is as under:
“1. At that time Ajay was standing on the metal heap. With a
view to see that what these persons are doing inside, went
to the open door of S6 but nobody was seen. Neither the
persons who went inside nor the passengers were seen but
he saw the petrol which was sprinkled.
8. The second event of breaking window is not in the
deposition”.
38 Testimony of Bhikhabhai Harmanbhai Bariya PW206 in the
court stated as under:
“At the time when he was standing near “A cabin” he had
seen the mob set the coach on fire. Following persons were
near the coach. Hasan Lalu, Shaukat Lalu, Mahommad Lalu,
Kadir Pataliya, Babu Pataliya, Soeb Kalandar, Yunus
Ghadiyali, Maheboob Popa, Salim Panwala, Shaukat Bibino,
Shaukat Bhano, Salim Panwala and Ramzan Bibino. (no
specific role assigned to anybody though the witness claims
to know the accused)”
39 On similarity of versions of PW236 and PW237 for the
event of throwing of burning rags and setting on fire, it cannot be said
that only in order to be consistent with the prosecution version of PW
236 and Jabir Binyamin Behra, in his confessional statement, some
improvement is introduced by naming Irfan Patalia and Ramzani along
with Hasan Lalu while throwing burning rags. The incident of fire
revealed PW236 stating about Hasan Lalu and Ramzani, who were
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sprinkling an inflammable liquid while he was standing on the metal
heap, which was also found as per map of scene of offence and in
testimonies of other PWs including passengers who were injured eye
witnesses, and therefor,e we find no major discrepancies, material
contradictions, vital omissions or any major improvements or striking
dissimilarities in this comparative statement and testimonies of
witnesses viz. PW236 and PW237 either under Section 164 or before
the court and a confessional statement of Jabir Binyamin Behra, an
accused and Bhikhabhai Harmanbhai Bariya PW206 in the testimonies
before the court touching the core of the case of the prosecution, but on
the conspiracy supports the case of prosecution.
Thus, testimonies of PW236 though suffer from
insignificant discrepancies, minor contradictions and inconsequential
improvements get sufficient corroboration from PW224, PW231, PW
237 and PW206 and further do not affect core of the case of the
prosecution, duly corroborated by evidence of passengers, Railway
employees, Police, Fire Brigade and other scientific evidence, for which
detailed reference is made earlier in this volume of the judgment and
about FSL, TI Parade, ID before the court, panchnamas, etc., which is
referred in later part of the judgment.
40 In all these cases, behvioural pattern of witnesses Pws224,
231, 236, 237 that emerge on record while making statement before the
police or the Magistrate or both and testimonies before the court is to be
appreciated and analyzed in the backdrop of gruesome crime like the
case on hand witnessed by them. Initially, not informing or approaching
or disclosing events of the unfortunate incident at different stages,
involvement of the accused, their precise role, name of the accused,
possession and usage of weapons or other articles of crime resulting into
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discrepancies, omissions, contradictions improvements, etc of
insignificant in nature which either do not make any dent or affect
substratum or core of the case of the prosecution but in fact reveal
natural conduct and reflection of mindset of a person fossilized in
different layers of fear psychosis, including that of consequences which
may follow during the course of investigation and trial. Therefore,
witnesses are initially reluctant to perform their duty to disclose or
inform the police about crime so as to avoid possible harassment and
even false implication in the crime.
Thus, the conduct of all these witnesses is natural, free from
any influence or tutoring, trustworthy and inspiring confidence and
therefore reliable and to be believed.
41 That relevant paragraphs of testimonies of all the
witnesses in Part XII of the judgment highlighted and emphasized by
us establish that these witnesses have remained unshaken in cross
examination though impeached by learned counsel for the defence
and the quality of their evidence meet with requirement of Section
134 of law of evidence that the quality and not the number of
witnesses supporting case of the prosecution is important, they have
undergone rigmarole of Sections 137, 139, 145, 153, 154, 155, 156
and 157 of the Indian Evidence Act, 1872. The decisions to which we
have made reference and relied on in VolumeII of this judgment on
the subject, for example; Maslati [supra], Vinod Kumar [supra],
Suvarnamma [supra], Gulam Sarbar [supra], Thoti Manohar [supra]
and Mano Dutt [supra] are relevant. That testimonies of all the
witnesses, as above, establish the case of the prosecution qua
sections 302, 120B & 149 of murder, conspiracy and unlawful
assembly respectively and common object believed by us and as per
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principles laid down by the Apex Court in the cases of Om Prakash
[supra], Gurmail Singh [supra] and Sheo Prasad Bhor Alias Sri
Prasad [supra], and no doubt para 125 of the case of Yakub Memon
[Bombay Blast Case][supra] which refer to para 583 of Nalini [supra]
in which principles qua conspiracy in the context of Section 120A and
120B of the IPC are enumerated.
PART XIIG
FSL EVIDENCE
1 That below mentioned three expert witnesses are equally
important visavis testimonies of eye witnesses and injured eye
witnesses along other documentary evidence.
[1] Satischandra Ganpatram Khandelwal, Deputy Director,
FSL, PW226, during the period July, 2002 onwards for Exh.1159
i.e. report No.4/2002 dated 20.07.2002 and 15 photographs
Exh.796 by FSL photographer PW145. The above documents are
proved.
[2] Dipakkumar Bhagvatlal Talati, Assistant Director, FSL,
PW227, 01.04.2002 onwards. This PW is concerned with
Exh.1162 to Exh.1186 and particularly Exh.1168, dispatch note
containing 32 articles, Exh.1169 dispatch containing 2 articles,
Exh.1170 muddamal receipt and another Exh.1171 also of
muddamal receipt received by FSL of the above articles along with
forwarding letter Exh.1172 and analysis report dated 20.03.2002
Exh.1173 of all these 36 articles, which were collected
immediately on the day and thereafter of the incident. In addition
to the above, 11 articles vide Exh.1174 about dispatch note of 11
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articles and receipt thereof by FSL vide Exh.1175 and analysis
report of the above 11 articles being Exh.1177 and further
dispatch note of 18 articles vide Exh.1178 and analysis report by
FSL of 10 articles during the period of 3 months of incident reveal
that the investigation has made all possible efforts to detect the
crime by undertaking the exercise, as above.
[3] Mohindarsing Jageram Dahiya, Director, FSL, PW240
having studied up to M.Sc. and Ph. D. in Forensic Science and
experience of about 30 years with FSL and authored a book on
Crime Scene Management and published more than 50 research
papers in Scientific Journal and Conference and had also given
training to Police Officers, Forensic Officers and Officers, Judges
of Trial Court, etc.
2 Satishchandra Ganpatram Khandelwal, PW226, visited
Godhra Railway Police Station on 11.07.2002 and thereafter along with
Mr. Noel Parmar, I.O. and Mr. Dahiya, PW240 went to the Yard of
Railway Station, where, 2 coaches were stationed on the track. That
inspection was carried out and Mr. Parmar showed sliding door, which
was stuck at back part of northern latrine there and scratch marks were
found upon inspecting both the slide doors of SC & S5 and a visitation
report was submitted. Mark 28/2007 and finally exhibited as Exh.1159.
Even opinion was rendered based on first photo Exh.796 and in para 3 it
is stated as under:
“3 I am shown first photo out of exhibit no. 796. On
looking at the same, I state that stoppers are fitted in the holes
of sliding doors therein. The aforesaid sliding door was fitted
towards north and the hole, in which stopper is fitted, is a hole
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on the southern sliding. On looking at the photograph no. 2, I
state that a close up picture of photograph no. 1 is seen in
photograph no. 2. There is a hole towards the north of toilet in
which sliding door is fitted. Photograph no. 3 shows friction
mark extending from the said hole to south direction. In this
photograph, northern side hole is nearer to floor of latrine and
condition of aforesaid hole has been disturbed. I am shown
photograph no. 4 and it is a close up photograph of photograph
no. 3. I am shown photograph no. 5 wherein stopper appears
to have been a little bent. On looking at photograph no. 6, I
state that there is a rectangle at the upper corner of sliding
door therein stopper like hook can be fitted. On looking at the
photograph no. 8, I state that it is a close up photograph of
photograph no. 6. On looking at photograph no. 7, I state that
sliding door is tightly fitted in the toilet wherein there is a long
scratch mark extending from north direction to south direction,
and there is a hole towards north, and rust particles and burnt
carbon particles appear to have stuck on this hole and scratch
mark.
Question: Photograph no. 3 and 4 are shown to you wherein
any carbon particles are seen?
Answer: Photographs were taken to decide as to whether
carbon particles and rust particles appear on the said scratch
mark or not”.
2.1 Likewise, other photograph Nos.9 to 15 were seen which
reveal status of burnt coach from inside and outside. The above witness
has worked in Physics during the period from 1977 to 2008 and had an
occasion of taking about 100 to 150 samples for examination in
connection with fire, occurred during this period. However, in para 6
this witness states that fire can broke out due to many factors, but he
has no knowledge as such what kind of pattern may be found in the
cases of fire break out due to short circuit and / or explosions and also
due to petrol, diesel, kerosene or such other inflammable material. In
para 8 it is stated that no mention was made about burning pattern of
sliding door in the report of examination dated 11.07.2002. However,
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he states that sliding door was fitted in the toilet and it was situated
towards S7 coach, was open and fitted. The sliding door of S6 coach
and even S5 were made of iron sheets. In his further crossexamination
in para 13 it is stated that the said sliding door was moving on the
strong steel strip and during his investigation he inspected as to whether
ther are marks on the stopper of sliding door or not. In para 14 the
witness admits to have received fax message on 10.07.2002 for
inspection and on the spot inspection was carried out on 11.07.2002 and
that report was forwarded on 20.07.2002. Para 15 of the cross
examination reveals blending of the sliding door of S6 was caused by
force and it was found that force was used on the outside handle of
sliding door of S6 coach situated towards S7 and in case if force is used
by hammer on the inside stopped of the sliding door, the stopper could
open in such manner. Para 15 of this witness reads as under:
“15 It is true that bending of stopper on the sliding
door of coach no. S/6 as stated by me was caused by force. It is
necessary to know that use of said force was made from inside
or outside the coach. It is true that if force is applied on the
sliding door, stopper can bend. It is not true that inspection of
entire sliding door shall have to be made to know this. It is
true that it is necessary to know marks on the sliding door. It is
true that if sliding door is closed, inspection of parts on both
sides of it may become possible and it can be seen as to
whether there are any marks on both sides or not. It was found
that force was used on the outside handle of sliding door of
coach no. S/6 situated towards S/7. It is true that if force is
used by hammer on the inside stopper of this sliding door,
stopper can bend in this manner. It is true that rust was found
on the hole of stopper. It is true that Mr. Noel Parmar showed
scratch mark on the sliding door. It is true that there were no
other scratch marks on the sliding door apart from it. It is true
that Mr. Noel Parmar stated that report is to be submitted after
inspecting this”.
2.2 Further in para 18 of the crossexamination this witness
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denies to have not made any note with regard to length of scratches in
the rough note produced by him. Para 18 of this witness reads as under:
“18 It is not true that I have not noted length of
scratches in the rough note produced by me. The measurement
noted at the upper portion of rough note is the measurement
of scratch only found on the metal wall. It is true that I have
not made any note in the report regarding shape of those
scratches. It is true that no scratch was found at the time of
inspection apart from this one scratch. It is not true that there
is no note in my rough note in connection with any hole of
stopper. The witness states that such is noted that one hole has
become a little distorted. Nothing has been noted except it. It
is true that I have not noted any more details regarding
distortion. I noted all the distortion and change found in the
concerned place during the inspection, and I have prepared a
report based on it. It is not true that in the rough note, there is
no reference of scratches, which have been shown in my
report. It is true that such has not been noted in the rough
note that scratches were found on the outside handle of sliding
door. It is true that I have not noted in the rough note as to
why scratch mark and hole were caused. It is true that I have
not measured depth of scratches.
2.3 That report dated 20.07.2002 of S.G.Khandelwal, PW227,
reads as under:
“Forensic Science Laboratory
Gujarat State
New Mental Corner, Ahmedabad16Date: 20/07/2002
Spot Visit Report No. 4/2002, in reference to
Godhara Railway Police Station C.R.No. 9/2002In accordance with the Fax message No. N.
W.P/101/Inquiry/Camp Godhara, dated: 10/07/2002 of the
Assistant Police Commissioner, Control Room, Vadodara and
Investigating Officer, Camp, Godhara, on 11/07/2002, thePage 880 of 988
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Forensic Expert Team visited Godhra during 11:15 hours in the
morning to 13:15 hours in the noon wherein alongwith the
undersigned, Dr. M. S. Dahiya, Assistant Director, Ahmedabad,
Mr. M. N. Joshi, Scientific Officer, Ahmedabad, Mr. J. C. Patel,
Photographer, Ahmedabad were present. They inspected S6
coach of the Sabarmati Express burnt at the time of incident and
S5 coach with it. Both the said coaches were lying in Godhara
Railway Yard.
Observations:
(1) The sliding door of the burnt S6 coach having direction
towards S7 coach (Eastern side) was sliding towards the
internal wall of the Northern toilet and it was open and it
was fixed inside the toilet.
(2) Down the said sliding door, two holes of the coach were
found at about 53.0 cm height from the floor. The distance
between these two holes was about 62 cm. (Both these
holes were towards Northern to Southern in the coach).
The diameter of the northern side hole was about 1.5 cm.
and the hole of southern side was quite distorted. The
stopper wedge of both the holes could be fit. A scratch
mark of about 62.0 cm. was seen between both these holes.
The stopper wedge was bent inside which shows that, the
stopper was in the closed condition at the relevant time.
(3) There was a long rectangular hole on the upper side of the
door of the said sliding door wherein the stopper above the
passage could be fit. No scratch marks or utilization of any
force were found in the said upper door hole or around.
(4) Looking to the condition of the upper stopper hole of the
said sliding door, the upper stopperlever was found in open
condition.
(5) Below the said sliding door and towards the stopper portion
and on the stopper(Rod tip of the stopper), marks of
utilization of force were found wherein the metal of the
door was found slightly bent and damaged.
(6) At the portion of the outer side handle of the said sliding
door also, little scratch marks i.e. marks of utilization of
force were found.
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(7) In the toilet of the burnt S6 coach having direction towards
passage of S5 coach (western side of the coach), no marks
were found as mentioned in the above observations.
(8) Necessary photography regarding the incident was carried
out.
S. G. Khandelval,
Assistant Commissioner,
Forensic Science Laboratory cum
Assistant Chemical Analyse,
Gujarat State,
Ahmedabad.”
3 Dipakkumar Bhagvatlal Talati, Assistant Director, FSL,
PW227 received two plastic carboys on 02.03.2002 and the above two
muddamal containers were examined by following standard physical
chemical method wherein the presence of Hydrochloric Acid was found
in the sample mark1 and blue coloured hydro carbons of kerosene were
found in the sample mark2. That receiving of muddamal, forwarding
letters and analysis report dated 20.03.2002 with signature and seal
with designation are confirmed. Further, receiving 36 parcels including
2 sealed parcels on 04.03.2002 dispatched by the Deputy Police Officer,
Western Railway, Ahmedabad vide letter dated 02.03.2002 is admitted
and these samples were examined and report was submitted on
20.03.2002. Again, 11 parcels were dispatched by the very police officer
vide dispatch note dated 11.04.2002 and receipt was issued by office of
FSL on 12.04.2002 and after analysis of samples out of aforesaid 11
parcels report dated 26.04.2002 was submitted along with forwarding
letter dated 30.04.2002. Thereafter, 10 sealed parcels containing 9
sealed jute sacks and one sealed plastic carboy were received by the
Investigating Officer vide letter dated 04.05.2002 on which examination
was carried out and report dated 17.05.2002 was prepared. That
receipts receiving samples vide Exhs. 1, 1168, 1169, 1170 and 1171 and
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receipts Exh.1174 and 1175 and report thereon Exhs. 1176 and 1177
and subsequent reports Exh.1178, 1179, 1180 and 1181 and last 2
samples received in sealed conditions vide dispatch letter dated
09.02.2002 and examination of report dated 17.05.2002, which are
given Exhs. 1182, 1183, 1184, 1185 and clarification report dated
15.06.2002 Exh.1186, all stood confirmed. This witness fairly
concedes about no experience of conducting analysis of any
muddamal article in the case of fire broke out in any residential
house, etc. and that he did not know anything in respect of flash
over. However, in para 10, it is stated that analysis of samples was
conducted through standard physical chemical method. Paras 11 and
12 of this witness read as under:
“11 It is true that this IS number is such number as is
decided by Bureau of Indian Standard in accordance with rules
and regulations. Other IS showing rules and regulations in
respect of petroleum products are in existence. As mentioned
in the aforesaid report, I obtained flash point and pro point of
aforesaid chemicals at the stage of analysis. I am shown IS
1448 (P10). On looking at the same, I state that cloud point
and pro point method have been mentioned therein. It is true
that in this report, analysis of first sample conducted was in
relation to kerosene. It is true that samples mark 1, 2 and 3
have been shown in para 1 of analysis on the page no. 3 of
aforesaid report. It is true that as noted in the said report, its
flash point should be minimum 35 centigrade as per standard.
It is true that more flash point and smoke point than minimum
standard shown in Indian Standard were found in the sample
no. 1, 2 and 3. It is true that mark A, B, E, F and G in the said
report were pertaining to diesel and the note in that regard has
been mentioned vide sample mark A, B, E, F, G in result2 of
analysis on the page no. 3. It is true that I have not stated in
my report that kerosene and diesel have been purchased from
any one place only. It is true that Investigating Officer sought
opinion in respect of petrol as to whether petrol has been
procured from the same source or not, and I stated in my
aforesaid report that it is not possible to give clear opinion in
respect of the fact that petrol of these samples is of same kindPage 883 of 988
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and has been procured from the same source.
12 I have not performed any experiment as to how
long petrol is retained. It is true that if quantity of petrol
has fallen on any substance in large proportion, the said
substance can absorb petrol. The witness states that it is
necessary to have such surface of substance as can absorb it.
It is true that retention of petrol is dependent on many
circumstances. It is true that hydrocarbons are present in
the petrol, diesel and kerosene. It is true that different tests
are to be conducted for analysis of hydrocarbons. It is true
that hydrocarbons are also of different types. It is not true
that different method will have to be adopted for analysis of
different hydrocarbons. It is not possible to know exact
temperature by direct test for knowing hydrocarbons in
petrol, diesel and kerosene. The remains of hydrocarbons
can be tested in the burning and nonburning situation. It is
true that presence of remains of hydrocarbons can be found
with chromatography method. It is true that as per report
no. 2002/C/287 dated 20.03.2002, remains of hydrocarbons
of diesel or kerosene were not found in any sample. The
remains of hydrocarbons of petrol have been found in the
piece of lungi of sample mark 1/6 in the aforesaid report.
The piece of aforesaid lungi was not in the burnt condition.
I cannot state as to whether remains of petrol found in the
aforesaid sample were of burnt petrol or not. The different
analysis method was adopted regarding different kind of
hydrocarbons for this analysis. I did not adopt pyrolysis
method in this method. In my opinion, thin layer
chromatography and gas chromatography method were
adopted”.
4 Mohindarsing Jageram Dahiya, Director, FSL, PW240
deposed about inspection of coach S6 on 01.05.2002, the experiment
performed by pouring water in a coach on 03.05.2002 and thereafter
two visits on 02.07.2002 and 11.07.2002. IN para 11 of his cross
examination he denies that he had no occasion to inspect any coach of
the train in connection with fire after 11.07.2002. This witness had an
occasion of inspecting one coach of Shanti Express, Gandhinagar, two
coaches on different dates at Kalupur Railway Station, Avadh Express,
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Karjan and Railway engine in Bharuch. In para 13, the above witness
admits to have collected samples of
seat material of this coach and the seats were made up of foam and
raxin. Para 13 of the deposition of this witness read as under:
“13 During my visit on 1/5/2002, the samples which I
collected from this coach include samples of seat material of
this coach. These seats were made up of foam and raxin. It is
true that there are various types of foam for seats. We have not
analysed in connection with the foam which was used in the
seat of the coach of the incident. I can not state as to whether
the foam which was used in the seat of the coach of the
incident was ‘Lakes'(sic) or not. It is true that the foam for the
seat are made by using chemicals. It is true that this foam for
the seat is made up from synthetic polymer namely stairin. It is
true that polyurethane used in this type of seat can catch fire
very easily. It is not true that there is toxic substance in this
type of foam. It is true that when polyurethane foam burns at
the heat of 800 degree, the gas produced from therein include
hydrogen synod, carbon monoxide etc. It is true that if anyone
inhales both these gases, oxygen carboxy hemoglobin burns
and oxygen covering capacity of red blood carbon (RTB)
decreases. It is true that in such condition, there is possibility
that a human being suffers from dizziness, headache, weakness
of limbs, tightness in the chest and lack of consciousness and
due to this reason, human being loses life in some cases.
4.1 Para 15 of this witness mention about the density of the
coach was 5000 cubic ft. taking into consideration the length, width and
height of the coach. In para 16 this witness deposed as under:
“16 It is true that Investigating police officer had got
the photographer to snap other photographs during 930 hours
to 1000 hours in the morning and he did not send me the said
photographs alongwith the letter dated 25/8/2004. It is true
that I am being shown photographs from Exhibit1048 to
1059. Viewing the same, I state that Investigating officer did
not send any photographs out of those photographs alongwithPage 885 of 988
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the letter dated 25/8/2004. It is true that the investigating
officer did not provide the information regarding the flames of
fire and the colour of flames at the stage of fire caught in this
coach. It is not true that from the colour of the fire flames, the
substance / liquid used to torch the fire and temperature of
fire at the relevant time can be known. It is true that from the
burning of one substance and the colour of smoke, it can be
known as to which type of substance has been burnt. I do not
know the fact that if the colour of fire flame is of orange
colour, the temperature can be about 1000 to 1200 degree
centigrade at the relevant time and if the colour of fire flame is
of bright yellow colour, the temperature can be about 1200 to
1400 degree centigrade. The witness states that merely on the
basis of the colour of flames, the temperature of the relevant
time can not be stated. I do not consider the book ‘Forensic
Science in Criminal Investigation and Trial’ as standard book
with respect of the incident of present case. I agree with the
analysis regarding flames of fire which has been noted in
chapter no.15 ‘Character of Fire’ on page no. 967 of the last
edition of this book. The witness states that this note is with
reference to small quantity flames and this reference can not
be considered sufficient for the fire investigation case.
According to me, (1) Practical Fire and Arson Investigation,
Author : Devid J. Redshikar and O.Polonel (2) Scientific
Protocol for Fire and Explosion Investigation, Guidelines for
Fire and Explosion Investigation by the Technical Kimit of
National Fire Protection Association 9/21 etc can be
considered standard books.
4.2 In para 30 this witness has noted the damage caused to
the floor part of the coach. Para 30 reads as under:
30 I noted the damage caused to the flooring part of
the coach. The crust of the flooring part of the coach were
peeled off. During my inspection, I did not collect any sample
of the flooring part. The witness states that they were priorly
collected. I have no idea as to who collected it and when. I can
not state exactly as to whether samples of flooring were
collected by FSL officers or not. It is true that all the seats of
the coach were burnt. The witness states that some seats
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seats of the whole coach were burnt completely. All the above
seats of the whole coach were burnt completely and some
seats towards Vadodara were burnt up to some extent, but its
reason may not be such that the fire broke out from above
part. If any inflammable liquid may have spilled in the above
part of a rack and any passenger may have lighted a bidi for
smoking, but it is not possible that the fire may have broken
out due to the same. If liquid has been spilled in the middle
part of Eastern side and fire has been torched, the fire may
affect the part towards EastNorth direction. According to me,
the door of NorthEast direction was also burnt. The said door
was also burnt up to much extent”.
4.3 That after constitution of Special Investigating Team
by the Apex Court, officers were given the questionnaire forwarded by
Shri Mothaliya, to which reference is made earlier in this judgment.
Exh.1353
“ANSWERS TO YOUR QUERIES RELATED WITH GODHRA
RLY. PSTN. 1 CR.NO.09/2002
Query1 What is the opinion on the allegation that the S
6 was put on fire after pouring petrol?
Ans: On the day of incident, 38 samples were drawn i.e. on
27/2/2002 for the presence of any inflammable material.
1 As per FSL report No. 2002/C/287 dt. 21/3/2002,
the presence of residual petroleum hydrocarbons
were detected in 27 samples.
2 Petrol was detected in 2 samples.
3 In some samples. orange dye used in petrol was
detected. In one sample, presence of blue coloured
hydrocarbon was detected.
4 The crime scene report No.2 dt. 17/5/2002, issued by
FSL para3 indicates the use of high inflammable
material to burn the coach.
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Query2 Whether the pouches filled with inflammable
were thrown into inside the coach?
Ans: No, pouches of inflammable material were not thrown
in to the coach because as per FSL crime scene report dt.
01/05/2002, frames of windows were closed at the time of
fire. Secondly, each window was having grill with 3″ gap
between bars of the grill. Hence, it was not possible to
throw pouches inside the coach from outside. Also, had
pouches been thrown in to the coach, maximum would have
been recovered at the time of first panchnama. such things
were not recovered.
Query3 Whether the inflammable articles had been
thrown through the windows by the mob?
Ans: No, Answer is as above (Query2).
Query4 If some passengers/persons while cooking on
kerosene stove (Primus) and exploded it. Whether is it
possible to occur/happen such serious incident?
Ans: No, it is not possible to occur such serious incident of
burning 59 passengers within short period.
The fire pattern would have been different.
The recovery of the (primus) would have been made at the
time of panchnama.
In such case FSL would not have detected residual
petroleum hydrocarbon of petrol.
Query5 Whether is it possible to catch fire from the
match sticks or bidi or cigarette and result in such
serious incident?
Ans: No, because such incidental fire takes hours to spread
from one end to other end of coach.
Logically such small fires are not allowed to develop by the
passengers to such extent and that also in a stationery train.
The material used in making the railway coach conforms to
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the requirements of UIC code 5642 and I S specifications
for flammability and fore retardant properties. These
materials do not burn without application of sufficient fire
source.
The fire properties of different furnishing materials
mentioned above indicate that the fire on samples of sizes
laid down in specification will extinguish itself within the
time period mentioned against each material after removal
of the fire source. These materials do not burn of its own
without application of the fire source.
The above mentioned furnishing materials are of general
nature and does not emit toxic gases due to which human
being can face sudden death. (Copy of letter from Govt. of
India, Ministry of Railways, Research Designs and
Standards Organization, Lucknow is attached).
Query6 Whether the incident of fire in coach was
happened due to short circuit?
Ans: No, FSL team examined this reason very thoroughly
but there was no evidence of short circuit. Secondly, the
train was stationery at the time of fire and when the train is
stationery, it remains on battery only.
Query7 Whether it is possible to broke out the fire in the
coach by pouring petrol or any inflammable article by
flash fire?
Ans: No, this fire was not broken out by flash fire because
flash fire is a fire that spreads rapidly through a diffuse fuel,
such as dust, gas, or vapors of an ignitable liquid, without
the production of damaging pressure. If cause of burning is
flash fire then ignitable material is must to initiate the
initial fire. Since it was an open chamber, a lot of ignitable
material is required to initiate such a large fire in a very
short period in the area of about 5000 cubic feet. FSL also
revealed the fire spread was natural in this case.
Query8 Is it possible to burnt the coach by flash over or
is it possible to flash over in the coach?
Ans: No, it is not possible to burn the coach in question nor
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flash over phenomenon will occur in this coach. Flashover
can be explained in a practical and understandable
manner as a stage in the development of a contained fire
in which all exposed surfaces reach ignition temperature,
more or less simultaneously. During free burning phase of
fire, the rate and intensity of open burning increases
geometrically and fire doubles with each 10o C rise in the
temperature. Heat rapidly evolving from the origin point of
fire, is convected and collected in the upper most area of
the structures. Additional heat is transferred through
conduction and radiation. The convected (super heated)
gases themselves become a source of radiated heat,
radiating heat energy downward into all surface areas
directly below them. This heat is absorbed by conduction
into the mass of those items whose surface are struck,
causing surface pyrolysis (backed effect). When the
temperature reaches the ignition temperature of the
items, a flashover occurs, flames instantly flashover the
entire area and all similar structures burn equally (e.g.
wooden wracks etc.) through out the compartment. Here,
almost 20% of the compartment on west side has only
heat effect and rest it totally burnt.
Sometimes, the different items in the room, having different
ignition temperature, start burning at different time
intervals. It has been seen that because of vide variations in
ignition temperatures of the items, some are burnt while
others do not burn giving a false look of multiple origins of
fire. Larger the volume area and free flow of air delays in
the buildup of temperature as well as time to flashover.
The time of flashover has vide variations of may never
occur depending upon the factors like confinement,
length of the time of fire, size of the fire, location of the
fire in the structure, volume area, aeration position of the
burning point, quality of the combustible material in the
structure etc. Looking to the above, a train compartment
with so many outlets for the leakage of hot gases is not
an ideal structure for flashover phenomenon.
Query9 On the direction of the officials of FSL during the
inspection of S6 coach, the IO had collected remains of
burnt articles in 9 sealed bags sent to FSL for
examination. The FSL was sent a report on 17052002
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stating that there is no presence of any inflammable in
the remains of burnt articles. What may be the reason for
this?
Ans: Traces of hydrocarbons and carboys were not detected
may be because these samples were drawn basically for the
detection of petroleum hydrocarbons but for other relevant
information required for the investigative (evident from the
accompanied forwarding note.) But the traces of carboys
which were not detected may be because plastic carboys
would have melted and evaporated at such a high
temperature.
Secondly, this material was collected after two months of
the incident. Hence, might have been decomposed.
However, samples immediately after the incident, 27
samples have shown the presence of residual petroleum
hydrocarbon.
Thirdly, it was a total sweep of the compartment. Hence,
residual hydrocarbon might have been diluted below the
detection limit.
Query10 In your report of 17052002 has stated that
there is no presence of remains of plastic containers in
the remains of burnt articles, What may be reason for
this?
Ans: With regards to “Black Carboys” it is submitted that
Plastic carboys of being plastic might have melted and
evaporated at such a high temperature say about 500 to
600 degree Centigrade.
Secondly, carboys might have been taken back by the
culprits after emptying into compartment.
Query11 The condition of windows and doors of the
Coach at the time of attack on the coach at Signal Faliya,
Godhra.
Ans: Plastic and glass shutters of windows on Godhra
side of S6 were closed at the time of fire. But were found
broken with stone pelting.
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Three doors of the coach were open and one door
towards the front facing signal Faliya was closed at the
time of fire.
Query12 Whether is it possible to spread the fire to
inside the coach if the fire put on the bottom side rubber
of Vestibule of the coach and is it possible to spread the
fire as it happened in this incident?
Ans: No, It is clarified that the vestibule of coach S6 is
made of special type of rubber which is self extinguishing
and does not catch fire. The rubber vestibules of coach S
6 had no burning sign on the lower end but shown the
surface pyrolysis on upper side because of the continuous
exposure to flames coming out through the upper portion
of the vestibule door. (Photograph of the vestibule of S6
coach is attached). This is also evident from the
photograph of the coach S6 published on the cover page of
“The Week” magazine of July 7 2002; where the canvas
vestibule of coach S7 is burning while the rubber vestibule
of S6 are not burning.
Hence, there is no question of burning of the vestibule of
coach S6 and initiating/spreading of fire from this
portion. However, had it been a case, the coach S7
would have burnt because of the canvas vestibule of the
coach had caught fire which did not happen. Secondly,
the vestibules are outside the coach; hence, the fire of the
burning vestibule will go upwards. The metallic sheet of
the coach prevents the spreading of fire towards coach.
Query13 The pattern of the fire outside the coach
noticed in this case is the pattern of fire caught from
outside or inside?
Ans: Looking to the pattern of fire outside the coach, fire
started from inside the coach, the coming out through
windows burnt the coach on outside.
Query14 If huge quantity of petrol poured inside the
coach and put on fire whether explosion is possible or
not?
Ans: No, in a non confined structure, the explosion will
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not take place because of the immediate leakage of
expended gases.
Query15 The burn injuries caused to the passengers of
this coach was on their upper side bodies, the reasons for
the same?
Ans: A flame has natural tendency to rise upwards.
When ceiling obstructs this upward progression, it starts
flowing horizontally and escapes through the upper open
portions of doors and windows of the structure. The
persons coming out of the doors along with the flames
might get burning or scorching on the upper half of the
body. Secondly, the persons standing in non burning areas
nearby may get scorched on exposed parts by heat
radiations.
Query16 Is there any case in your knowledge that if fire
broke out accidentally in a still train and running train in
which this much casualties caused? If yes, details may
please be provided.
Ans: Yes, I have seen many cases on TV as well as
personally attended some cases of accidental fires in
running and still trains. But I have never heard or
experienced/seen any causality in such fires. The best
example of this type of fire is cited below:
Avadh Express No. 9038 was going in full speed from
Baroda to Bombay. Near Palej Railway Station, fire was
observed in one of the compartment in between two toilets.
The train was stopped by pulling the chain, which took
some time and covered some distance to halt completely. In
this fire, five bogies of the train were completely burnt. But
not a single passenger was hurt seriously or died. For
details, please go through the paper cutting attached here
with.
Query17 If the fire broke out accidentally, whether it is
possible to cause huge casualties like this?
Ans: No, if the fire breakout accidentally, such casualties
are not possible. This type of casualties is only possible if
passengers are suddenly trapped in a very big fire.
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Query18 On which evidence it has been
finalized/decided that the persons of mob/accused came
inside by breaking the Vestibule?
Ans: FSL, report date 20/7/2002 pertaining to the
examination of sliding door of S6, a connecting vestibule
between S6 and S7 indicates that: Signs of force were
visible where the door metal was some what bent and
damaged.
Some scratch marks were visible on the outside handle of
the sliding door indicating the use of force to open it.
A longish scratch mark was visible between the stopper
knob and the hole meant for its fitting. This indicated
that it was opened forcibly from outside.
Query19 What is the reason that initially smoke came
out and then was the fire?
Ans: When fire starts, it generates an environment which
has three zones i.e. the lower is a combustion zone
(flame) where fuel burns. The middle is called as plum
(column of hot air). Upper one is smoke zone or smoke
and sludge layer. In a fire environment, smoke is a fuel
the fire will eventually consume. Inside, plumes generate a
dense layer of smoke that will ultimately fill a closed space
from top to bottom. The hotter is the upper layer of gas, the
greater is the degradation of other materials in the room.
Smoke represents the material that did not burn completely
the first time. This environment is full of char, solid matter
in very particulate from, as well as liquids in as aerosol
form. This byproduct of the fire is produced by pyrolysis
of the first fuels partially consumed by the fire. When
aerosolized liquids that are formed in smoke strike a glass
surface, the smoke recondenses and a brown sludge is
created. Sludge, like smoke, represents fuel for later stages
of the fire’s development if there is enough thermal
momentum to ignite it. Smoke and sludge collect on
internal surfaces in structure fires. Conversely, if the
thermal momentum of the fire reaches its maximum, the
layer of soot can become fuel for the later stage for fire (500
to 600o C). At this point, the entire compartment
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simultaneously bursts into flames. Hence, at initial stage of
big fires in a compartment/room, the visibility of smoke
is too much which subsides the visibility of fire because
of sudden lowering of the thermal layer from ceiling
accompanied by the sudden lowering of thick smoke
layer.
The best examples of the above are:
1 Tons of petrol was thrown in to WTC by striking
aeroplanes, caught fire initially only smoke was visible
and after some fire appeared.
2 Bombay train which caught fire, initially there was
appearance of smoke only and visibility of fire was at
later stage.
Query20 Whether the fire broke out after the halt or
halted due to the fire on moving train?
Ans: To the best of my understanding, the fire broke out
after the halt of train. The operation done to torch the
compartment is not possible in a moving train i.e. cutting
the vestibule [Sanjeev: Where’s the evidence of cutting?],
breaking the connection vestibule door and pouring of
petrol and coming down then from the train. However, this
can be better known by the eyewitnesses. [Sanjeev: THERE
IS NO EYEWITNESS]
Query21 Whether the presence of petrol or inflammable
materials have been noticed on the railway track
sand/metal on the bottom of the coach at the place of
incident?
Ans: No, it was not noticed on the track, near the track or
on the bottom of the coach. The pattern of burning itself
indicates that fire developed from inside the coach and
not from railway track or bottom of the coach.
Query22 (Verbal) What type of chain pulling system was
there in compartment? Was there any violence on the
compartment before fire ?
Answer: The chain pulling system was alarm chain pulling
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system (ACP) and train can be stopped from out side the
compartment by using this system.
There were marks of heavy stone pelting on the
compartment on Godhra side (Signal Faliya). The stones
are shown in the photograph.”
5 Even applying method of chromatography by a forensic
expert is also a recognized method of analysis of fire inflammable
material used in fire and it cannot be said that such method is
unscientific. We are in agreement with the judgment relied on by
learned Mr. J.M.Panchal, learned Special Public Prosecutor about failure
on the part of learned counsel for the defence in raising certain
questions / suggestions about special features of theories of fire and they
were not crossexamined and to that extent submissions made by
learned counsel for the defence are rejected. In VolumeII of the
judgment we have referred to the judgments relied on by Mr.
J.M.Panchal, learned Public Prosecutor and learned counsel for the
defence, but common thread which runs through all these judgments is
requirement of recognized scientific method and analysis of the material
by experts and that is available on the record of this case.
FIRE THEORY
6 We have already held that when trustworthy, truthful and
reliable ocular evidence is available, and an expert was not confronted in
crossexamination in spite of availability of opportunities, and no
recourse was taken to Section 311 of the Code, 1973, at the stage of
appeal, the material placed on record by learned counsel for the defence
relying on certain books viz. [1] Fire Debris Analysis authored by Eric
Stauffer, Julia A. Dolan and Reta Newman; [2] Practical Fire and Arson
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Investigation authored by David R. Redsicker and John J. O’Connor; and
[3] Scientific Protocols for Fire Investigation authored by John J. Lentini,
about requirement of following such procedure for which various
opinions are given by the authors do not require any deliberation. In the
facts of the case, it has come on record that Dipakkumar Bhagwandas
Talati, Assistant Director FSL, PW227 has followed recognized and
established method of chromatograph while analyzing fire debris and
materials sent for. Further, pyrolysis which is a process by which a solid
[or a liquid] undergoes thermal degradation into smaller volatile
molecules, without interacting with oxygen or any other oxidants and it
is necessary process for the combustion of most solid fuels. Pyrolysis of
a given material can produce many different thermal degradation
products, called pyrolysis products and it significantly contributes to the
chemicals recovered from fire debris samples during the laboratory
analysis. The above process is explained by Mohinder Dahiya, Deputy
Director, FSL, Gandhinagar, PW240 and it cannot be said that he was
not in knowledge of the basic requirement to undertake the fire debris
analysis by his colleagues. That examples given in the book about flash
over particularly that with the fire growing, the hot gas layer eventually
reaches the critical temperature of approximately 600 degrees C and at
this point, the hot gas layer ignites, thus significantly increasing the
radiant heat transferred to the floor level ignite. The example given is
about close room and it cannot have any universal applicability and this
aspect is also explained by PW240 in a reply to query raised by the SIT.
That in para 8.2 Chromatographic Theory is explained in which it is
clearly stated that the techniques of Chromatographic are still used for
the separation of coloured components in a mixture.
6.1 Chapter 5 of Scientific Protocols for Fire Investigation
authored by John J. Lentini about Analysis of Ignitable Liquid Residues
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and Chapter 7 about Thirty Fire Scene Scenarios, suffice to say that
Chapter 7 begins with sentence by Jack Handy that `In theory, there is
no difference between theory and practice, but in practice, there is’.
Para 7.11 under the heading of Conclusion it is again mentioned that the
physical evidence and eyewitness accounts often allow an investigator to
make such determinations and additional data, not directly related to
the fire, often must be considered to evaluate whether the investigator’s
hypotheses make sense in the real world. The individual, who acts as
the principal investigator is charged with putting all the evidence
together into a coherent story. Applying the scientific method to
questions of responsibility is as important and often more difficult than
applying to origin and cause determinations.
6.2 Reliance is also placed on The book `Practical Fire and
Arson Investigation’ authored by David R. Redsicker, more particularly,
behaviour of fire, classification of fire, phases of fire, incipient, emergent
smoldering, free burning, oxygenregulated smoldering, fuel load, fire
spread, direction and rate of spread of fire, etc. again remained for the
examples which cannot be compared with the facts of the present case
for the reasons stated in earlier paragraphs. We have ruled out theory of
smoldering in view of versions of eye witnesses, including injured and
evidence of FSL experts of fire and, therefore, this aspect of smoldering
will also not help the defence.
6.3 The paper and article pertaining to `Upholstered Furniture
Transition from Smoldering to Flaming’, in conclusion taken into
consideration a theory which exists for smoldering combustion based on
work carried out by T.J.Ohlemiller at Princeton University, which were
summarized in the handbook – SFPE. That the theory which indicates
the importance of different porous item density, air flow rate and
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direction, etc., at the present time, however, the theory cannot be used
to protect whether an upholstered furniture item will smolder or not. It
further comments that predictability was equally impossible and the
theoretical basis was even sketchier. The conclusions of the analysis is
that out of a total 102 items subjected to smoldering ignition in
laboratory tests, 32% burned up partially or completely without erupting
in flaming while 64% did go to framing and time taken for such framing,
but it was finally concluded that the existing data do not permit firm
conclusions regarding the fabric and padding materials which are the
most prone to transit to flaming.
6.4 Further, testimonies of Mr. Dipakkumar Bhagwandas Talati,
PW227, Mr. Satishchandra Ganpatram Khandelwal PW226, and
Mohinder Dahiya PW240 corroborate with ocular evidence and rule out
theory of smoldering, shortcircuit or any other cause of accidental fire.
That all the above experts have answered the queries even put forth by
SIT and during crossexamination about emergence, pattern, nature,
ignition, colour of flames and temperature in centigrade along with
smoke and fire in Coach S/6 of illfated train persuade us to reject
theories canvassed by learned counsel for the defence about fire in the
coach was due to unknown cause other than the conspiracy for which
proper method of investigation in the cases of arson was not followed.
PART XIIH
INVESTIGATION AND OTHER EVIDENCE, INCLUDING T.I.PARADE,
I.D. BEFORE THE COURT
1 Learned counsel for the defence highlighted irregularities in
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the investigation, suppression of vital material, approach of the
investigating officer, which was unfair, nontransparent and biased and
even nonexamination of witnesses in Part VD of this judgment.
2 On perusal of the nature of irregularities and/or lacunae,
we find that some minor lapses appear but nonproduction of yadi of
seizure of tempi, nondisclosure of the fact about letter addressed by
PW244 to PW218 about disclosure made by Jabir Binyamin Behra
before the police and breach of Section 27 of the Evidence Act,, fax
message addressed to Investigating Officer to FSL on various dates viz.
28.04.2002, 01.07.2002 and 10.07.2002 again will have no significance
since sufficient material is available about exchange of communication
between the Investigating Officer and FSL at various stages from day
one of sending seizure muddamal items to final queries raised by SIT
and, therefore, it cannot be said to be irregularities of material in nature.
Further, some wireless messages given on walkie talkie, etc by the guard
to the Deputy Station Superintendent has no relevance in view of
testimonies of PW228 about unlawful assembly assaulting train.
Likewise, nonproduction of other record of Carriage and Wagon
Department of Ahmedabad and nonexamination of certain witnesses,
who were present at Railway Station, Godhra will not have fatal to the
case of the prosecution. That various details about figure of vacuum
drop at the stage of chain pulling or preparation of map and topography
of scene of offence though relied by the Investigating agency was not
brought on the record, would not again be damaging the caw of the
prosecution in view of the testimonies of Railway employees and what is
stated by PW132 and PW162 about damage to the coaches including
S/6 and S/7 and Exh.778 and Exh.1008 and extract of Guard Book and
a communication dated 19.09.2005 of Senior Superintendent Engineer,
Railway to Dy.S.P., Western Railway, about mechanism of chain pulling,
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ICV and shaft. We have produced testimonies of Railway employees,
who were examined confirm about first and second chain pulling and
also the place of offence, violent attach on the train and setting coaches
on fire by mob consisting of 500 to 1500 persons belonging to a minor
community.
3 So far as improvements made by the witness to suit the
prosecution version during the trial is concerned, it is again an attempt
made on testimonies of Town Police personnel and kerosene replaced by
petrol to which we have already given our findings. The trial court has
also not believed the version of VHP workers and we have given our
own reasons to believe some of them for certain events, which took
place while the train stopped near `A’ cabin upon second chain pulling.
As held by the Apex Court in the case of Mohd. Ajmal Kasab vs. State of
Maharashtra [AIR 2012 SC 3565] if the confessional statement confirms
the findings of investigation that should go to the credit of investigation
and it cannot be said that the confessional statement was recorded to
confirm the police investigation.
4 Thus, submissions made by learned counsel for the defence
about irregularities and illegalities in the investigation and
improvements of witnesses have no substance and are hereby rejected.
5 As held in Dayal Singh [supra] and and Rabhindra Kumar
Pal Alias Dara Singh [supra], minor lapses of defects in investigation
cannot be termed as defective. Another decision on this line is Madan
Singh [supra] which referred to earlier decision in the case of
Chikkarange Gowda [supra].
6 In absence of any clue, the investigating agency may
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undertake investigation based on many theories which may or may not
lead to detection of crime and criminals. Even during the course of
investigation it may come across altogether a different facet of crime not
assumable or thought of. Coincidence does happen and various events
which have taken place during the course of investigation resulting into
recording of statements of witnesses from time to time cannot be said to
be contrary to lawful procedure of investigation in view of nature of
magnitude of crime but even minor lapses and discrepancies of
insignificant in nature in the investigation which do not touch
substratum of the case of the prosecution are to be discarded.
ABOUT OTHER EVIDENCE AND T.I.P AND I.D.
7 In the first part of this judgment, we have reproduced list of
evidences along with description for which such evidence was produced,
including admitted documents to which as such there is no dispute
except Exh.1008 i.e. report given by Senior Section Engineer,
Ahmedabad giving the coach numbers and two drawings of coach
wherein ACP systems were installed. All the above documents were
exhibited as Exh.28 in Sessions Case No.69 of 2009 to Sessions Case
No.86 of 2009 and Sessions Case No.204 of 2009.
8 Medical Officers PW27 to PW59 and PW62, who had
performed postmortem and respective postmortem notes are again
established and proved by the prosecution. Likewise, Medical Officers
PW62 to PW73 and PW176 and PW180, who had given treatment to
the injured and two accused are established and proved by the
prosecution. We have referred to testimonies of PW180 in earlier part of
thew judgment, who had given treatment to accused No.2 of Sessions
Case No.72 of 2009, Jabir Binyamin Behra immediately after the train
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was set on fire for the injury he received.
9 PW207, learned JMFC, Railway Exh.1063 in his
testimonies admits to have recorded statements of PW236 Exh.1214,
PW234 Exh.1233 and PW232 Exh.1221 under section 164 of the Code,
1973. Out of these three witnesses, PW234 and PW232 were declared
hostile.
10 PW246 learned CJM has recorded confessional statement
of Jabir Binyamin Behra Accused No.2 of Sessions Case No.72 of 2009
Exh.1469 and statements of three other witnesses PW224, PW231, PW
237 Exh1470, Exh.1471 and Exh.1253 and admitted accordingly in his
testimonies by following procedure under Section 164 of the Code, 1973
to which detailed reference and reasoning is already given by us.
11 PW41 Executive Magistrate carried out Test Identification
Parade for A/5 of Sessions Case No.71 of 2009; A/3 of Sessions Case
No.70 of 2009; A/2 of Sessions Case No.72 of 2009; A/1 of Sessions
Case No.73 of 2009; A/3, A/4 and A/2 of Sessions Case No.75 of 2009
and identified by PW149, PW236, PW170 and PW208 respectively.
12 PW42 has also carried out Test Identification Parade of A/1
and A/2 of Sessions Case No.76 of 2009, A/1 of Sessions Case No.77 of
2009; A/1 and A/2 of Sessions Case No.78 of 2009 and identified by
PW149, PW208, PW231, PW224, PW208, PW237 and PW236,
respectively.
13 Executive Magistrates who have undertaken Test
Identification Parade – PW42 & PW212 of accused Nos.A/4 & A/5 of
Sessions Case No.78 of 2009 identified by PW172 and PW236, A/1 and
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A/4 of Sessions Case No.79 of 2009 identified by PW231, PW224 and
PW236 and accused No.1 of Sessions Case No.80 of 2009 by PW236
and PW163 are established and proved.
14 PW42 has also carried out Test Identification Parade of A/1
and A/2 of Sessions Case No.81 of 2009; A/2 and A/4 of Sessions Case
No.82 of 2009 and A/1 of Sessions Case Nos.84 and 85 of 2009 and also
of A/1 of Sessions Case No.204 of 2009.
15 We have exclusively considered testimonies of passengers,
injured eye witnesses and other eye witnesses in earlier part of this
judgment and such witnesses have also identified respective accused.
Likewise, other Government servants viz. Railway Employees, RPF,
GRPF, GTP and Fire Brigade personnel have also identified the accused.
16 Evidence of scientific and expert from FSL have confirmed
at relevant Exhibits to which we have made reference earlier and they
are PW227 Dipakkumar Bhagwandas Talati, Assistant Director FSL, PW
240 Mohinder Dahiya, Deputy Director, FSL, Gandhinagar, and PW.226
Satishchandra Ganpatram Khandelwal,Deputy Director, FSL.
17 We are in agreement with reasonings and findings of
learned trial Judge with regard to appreciation of evidence of various
testimonies of various panch witnesses of discovery / recovery of
weapon / articles, panch witnesses of arrest of accused and panchnama
drawn and exhibited on the record of the case.
18 Police personnel, who have recorded statement of
wittinesses / prepared panchnama of inquest and arrest of accused have
deposed to and they are PW230, PW241, PW244 at Exh.1196,
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Exh.1366 and Exh.1406 and also PW245 at Exh.1457, Deputy
Superintendent of Police of Special Investigation Team.
19 Following eye witnesses, including injured / passengers or
travellers have identified various accused persons of different Sessions
Cases and they are as under:
Name of PW Identified Accused persons
ID In Court
PW109 A/6, SC No.7109, Mizfar Usman Hayat
Mukesh Ramanlal Makwana
A/28/09, SC No.69/09 Taiyab Abdul Haq Khoda
PW110 A/13, SC No.69/09 Abdul Sattar Ismail Gitali
Bhupatbhai Maniram Dave
PW118 A/1, SC No.82/09 Irfan Mohmmad Hanif Abdul Gani
Ashwin Govindbhai Patel Pataliya
PW122 A/2, SC No.78/09 Yunus Abdulhaq Samol @Ghadiyali
Babubhai Somdas Patel
PW124 A/1, SC No.70/09 Sabbir @Bhupatno Bhuriyo Abdul
Dilipkumar Jayantilal Patel Rahim BadamA/13, SC No.69/09 Abdul Sattar Ismail Giteli
[Acquittal Appeal No.743/22 is filed against him]
PW150 A/1, SC No.81/09 Rayeesh Hussain Ismail Mitha
Jayantibhai Umeddas Patel @Bhaina Ghanchi – MusalmanA/2, SC No.78/09 Yunus Abdulhaq Samol @Ghadiyali
A/5, SC No.75/09 Saukat @Bhano Farook Abdul
PataliyaA/53, SC No.69/09 Mohmmad Syed Abduyl Salam
Shaikh
PW160 A/1, SC No.70/09 Sabbir @Bhupatno Bhuriyo Abdul
Hirabhai Umeddas Patel Rahim BadamA/14, SC No.69/09 Yasin Habid Malek
PW168 A/4, SC No.78/09 Usmangani Mahmmad Ibrahim
Mandakiniben N. Bhatiya KofiwalaA/1, SC No.86/09 Siddik Ibrahim Hathila
A/52 SC No.69/09 Abdul Razak Yakub Ismailwala
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@Moto Bando Shaikh
PW170 A/2, SC No.72/09 Jabir Binyamin Behra [ID in TIP]
Pravinkumar Amthalal Patel
A/1, SC No.85/09 Saukat Yusuf Ismail Mohan @Bibino
[ID in TIP]A/22, SC No.69/09 Ahmed Abdul Rahim Hathi
A/2, SC No.72/09 Jabir Binyamin Behra
A/1, SC No.86/09 Siddik Ibrahim Hathila
PW175 A/2, SC No.75/09 Habib @Badshah Binyamin Behra
Gayatriben H. Panchal A/31, SC No.69/09 Habidbhai Karimbhai Shaikh
A/24, SC No.69/09 Idrish Abdullah Umarji ShaikhA/44, SC No.69/09 Mahmmad Jabir Abdullah Kalam
MusalmanA/2, SC No.72/09 Jabir Binyamin Behra
A/5, SC No.78/09 Ibrahim Abdul Razak Abdul Sattar
Samol @BhanoA/12, SC No.69/09 Saddikkhan Sultankhan Pathan
Part No. 38 Page No. 12743 to 13128
P.W.No. 236 Pg. 12782 to 844 Ajay Kanubhai Bariya
Exh: 1231
Being Tea Vendor, he knows the accuses who were also work
as Vendor on Godhra Rly Station/Platform.
ID In TIP
S.C. No. Accused Name of Accused
No.
75/09 1 Soheb Yusuf Ahmed Kalandar
(Dt. 7.7.2003) (Exh: 315)
78/09 2 Yunus Abdulhaq Samol @ Ghadiyali
(Dt. 16.08.2004) (Exh: 335)
78/09 5 Ibrahim Abdul Razak Abdul Sattar Samol @ Bhano
(Dt. 01.09.2004) (Exh: 339)
79/09 4 Farook @ Haji Bhuriya Abdul Sattar Ibrahim
MusalmanGaji
(Dt. 19.11.2004) (Exh: 345)
80/09 1 Siddik Abdul Rahim Abdul Sattar Bakkar Musalman
(Dt. 24.12.2004) (Exh: 347)
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81/09 2 Irfan Abdul Majid Ghanchi Kalandar @ Irfan Bhobho
(Dt. 03.07.2005) (Exh: 353)
82/09 2 Ayub Abdul Gani Ismail Pataliya
(Dt. 01.08.2005) (Exh: 354)
84/09 1 Mehbub Ahmed Yusuf Hasan @ Latiko
(Dt. 20.02.2006) (Exh: 360)
Anvar Kalandar (Dt: 31.07.2004)
(C) Identified in the Court:
Part No. 38 Page No. 12743 to 13128
P.W.No. 236 Pg. 12782 to 844 Ajay Kanubhai Bariya
Exh: 1231
Being Tea Vendor, he knows the accuses who were also work
as Vendor on Godhra Rly Station/Platform.
ID In the COURT
S.C. No. Accused Name of Accused
No.
78/09 5 Ibrahim Abdul Razak Abdul Sattar Samol @ Bhano
72/09 2 Jabir Binyamin Behra
79/09 4 Farook @ Haji Bhuriyo Abdul Sattar Ibrahim Musalman
Gaji
78/09 2 Yunus Abdulhaq Samol @ Ghadiyali
71/09 3 Ramjani Binyamin Behra
75/09 5 Saukat @ Bhano Farook Abdul Sattar Pataliya
84/09 1 Mehbub Ahmed Yusuf Hasan @ Latiko
(Please see at P/3812849, Line:2 (A/1 of S.C.No.
84/09)
80/09 1 Siddik Abdul Rahim Abdul Sattar Bakkar Musalman
Shaikh
82/09 2 Ayub Abdul Gani Ismail Pataliya
71/09 4 Hasan Ahmed Charkha @ Lalu
82/09 1 Irfan Mohammad Hanif Abdul Gani Pataliya
81/09 2 Irfan Abdul Majid Ghanchi Kalandar @ Irfan Bhobho
71/09 2 Mehboob Yakub Mitha @ Popa
73/09 1 Mehboob Khalid Chanda
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70/09 2 Abdul Razak Mohmmad Kurkur
69/09 40 Abdul Rehman Abdul Majid Dhantiya @ Kankatto @
Jamburo(2)
Part No. 38 Page No. 12743 to 13128P.W. No. 237 Pg. 12845 to 875 Sikandar M. Shaikh
Exh: 1252
Being Vendor for selling of Water Pouch, he knows the accused
who were also work as Vendor on Godhra Rly
Station/Platform.
(A) Exh: 1253 STATEMENT U/S 164 OF CRI. IPC
(B) IDENTIFIED IN THE T.I.P.
Part No. 38 Page No. 12743 to 13128
P.W. No. 237 Pg. 12845 to 875 Sikandar M. Shaikh
Exh: 1252
Being Vendor for selling of Water Pouch, he knows the accused
who were also work as Vendor on Godhra Rly
Station/Platform.
ID 4 ACCUSES IN TIP
S.C. No. Accused Name of Accused
No.
78/09 1 Abdul Rauf S/o Abdul Majid Isa Dhesli @ Kamli
(Dt. 12.08.2004) (Exh: 332)
82/09 2 Ayub Abdul Gani Ismail Pataliya
(Dt. 01.08.2005) (Exh: 354)
EYE WITNESS SOLITARY WITNESS
Part No. 38 Page No. 12743 to 13128
P.W. No. 237 Pg. 12845 to 875 Sikandar M. Shaikh
Exh: 1252
Being Vendor for selling of Water Pouch, he knows the accuses
who were also work as Vendor on Godhra Rly Station/Platform.
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Exh: 1253 Statement U/s 164 of Cr.P.C.
82/09 4 Mohammad Hanif @ Hani Abdullah Maulvi Ismail
Badam
(Dt. 06.09.2005) (Exh: 357)
84/09 2 Mehbub Ahmed Yusuf Hasan @ Latiko
(Dt. 20.02.2006) (Exh: 360)
(C) IDENTIFIED IN THE COURT:
Part No. 38 Page No. 12743 to 13128
P.W. No. 237 Pg. 12845 to 875 Sikandar M. Shaikh
Exh: 1252
Being Vendor for selling of Water Pouch, he knows the accuses
who were also work as Vendor on Godhra Rly
Station/Platform.
Exh: 1253 Statement U/s 164 of Cr.P.C.
ID 3 Accuses in TIP
ID 12 Accuses in the Court
ID in the COURT
S.C. No. Accused Name of Accused
No.
82/09 4 Mohammad Hanif @ Hani Abdullah Maulvi Ismail
Badam
71/09 1 Siddik @ Matunga Abdulla Badam Shaikh
72/09 2 Jabir Binyamin Behra
81/09 2 Irfan Abdul Majid Ghanchi Kalandar @ Irfan Bhobho
78/09 1 Abdul Rauf Abdul Majid Isa @ Dhesli @ Kamli
82/09 1 Irfan Mohammad Hanif Abdul Gani Pataliya
84/09 1 Mehbub Ahmed Yusuf Hasan @ Latiko
EYE WITNESS / SOLITARY WITNESS
Part No. 38 Page No. 12743 to 13128
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P.W. No. 237 Pg. 12845 to 875 Sikandar M. Shaikh
Exh: 1252
ID in the COURT
S.C. No. Accused Name of Accused
No.
82/09 2 Ayub jAbdul Gani Ismail Pataliya
74/09 1 Maulvi Hussain Haji Ibrahim Umarji
79/09 3 Bilal Abdullah Ismail Badam Ghanchi
71/09 4 Hasan Ahmed Charkha @ Lalu
71/09 3 Ramjani Biyamin Behra
IDENTIFIED IN THE COURT:
Part No. 36 Page No. 12092 to 12140
P.W. No. 206 Pg. 12308 to 322 Bhikha Harman Bariya
Exh: 1060
23 years before incidentHawkerWitness of ACP at “A”
Cabin
Named and ID in Court 6 Accuses
Named and ID in Court 6 Accuses
S.C. No. Accused Name of Accused
No.
75/09 5 Saukat @ Bhano Farook Abdul Sattar Pataliya
71/09 4 Hasan Ahmed Charkha @ Lalu
85/09 1 Saukat Yusuf Ismail Mohan @ Bibino
84/09 1 Mehbub Ahmed Yusuf Hasan @ Latiko
81/09 2 Irfan Abdul Majid Ganchi Kalandar @ Irfan Bhobho
71/09 2 Mehboob Yakub Mitha @ Popa
WITNESSES – EMPLOYEE OF KALABHAI PETROL PUMP
Part No. 37 Page No. 12411 to 12742
P.W. No. 206 Pg. 12488 to 518 Ranjitsinh Jodhabhai Patel
Exh: 1060
Employee of Kalabhbai [Hakimiya] Petrol Pump
Delivery Man
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ID in T.I.P
S.C. No. Accused Name of Accused
No.
77/09 1 Salim @Salm an Yusuf Sattar Zarda
[Dt. 17.6.2004][Exh.329]
79/09 1 Siraj Mohmmad Abdul Raheman Meda @Bala Shaikh
[Dt. 15.10.2004][Exh.342]
[B] IDENTIFIED IN THE COURT
Part No. 37 Page No. 12411 to 12742
P.W. No. 224 Pg. 12488 to 518 Ranjitsinh Jodhabhai Patel
Exh: 1139
Employee of Kalabhbai [Hakimiya] Petrol Pump
Delivery Man
ID in the Court
S.C. No. Accused Name of Accused
No.
72/09 2 Jabir Binyamin Behra
[C] Exh.1470, STATEMENT U/S.164 OF CODE, 1973
[2][A] IDENTIFIED IN THE T.I.P
Part No. 37 Page No. 12411 to 12742
P.W. No. 231 Pg. 12684 to 708 Prabhatsinh G. Patel
Exh: 1206
Employee of Kalabhbai [Hakimiya] Petrol Pump
Cashier
ID in the Court
S.C. No. Accused Name of Accused
No.
77/09 1 Salim @Salm an Yusuf Sattar Zarda
[Dt. 17.6.2004][Exh.329]
79/09 1 Siraj Mohmmad Abdul Raheman Meda @Bala Shaikh
[Dt. 15.10.2004][Exh.342]
[B] IDENTIFIED IN THE COURT
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Part No. 37 Page No. 12411 to 12742
P.W. No. 231 Pg. 12684 to 708 Prabhatsinh G. Patel
Exh: 1206
Employee of Kalabhbai [Hakimiya] Petrol Pump
Cashier
ID in the Court
S.C. No. Accused Name of Accused
No.
72/09 2 Jabir Binyamin Behra
77/09 1 Salim @Salman Yusuf Sattar Zarda
79/09 1 Siraj Mohmmad Meda
20 That additional clarification and submissions made on
behalf of prosecution by Mr. J.M.Panchal, learned Special Public
Prosecutor and reply submitted by learned counsel for the defence
Mr.A.D.Shah about identification of wrong person viz. accused – Farook
Ahmed Hasan instead of Mehbub Ahmed Yusuf Hasan @Latiko by PW
236 at Sr. No.7, para 7 at page No.12788, PW236 has given the name
of “Farook Ahmed Hasan, who is accused of Sessions Case No.79 of
2009”. That Farook @Haji Bhuriyo son of Abdul Sattar Ibrahim Gaji is in fact
convicted for life imprisonment being accused No.4 of Sessions Case No.79 of
2009 as per final judgment at Sr. No.16 of ScheduleC and Mehbub Ahmed
Yusuf Hasan @Latiko convicted for death sentence being accused No.1 of
Sessions Case No.84 of 2009 as per final judgment at Sr. No.11 of
ScheduleA. Even in testimonies of PW237, person at Sr. No.7 of para 7
at page No.12842 was identified as Mehbub Ahmed Yusuf Hasan
@Latiko and again false name of Farook Ahmed Hasan was given.
However, finally the court correctly recorded accused No.1 of Sessions
Case No.84 of 2009 as Mehbub Ahmed Yusuf Hasan @Latiko. The
identification of Mehbub Ahmed Yusuf Hasan @Latiko remained
consistent by PW236 and PW237. Therefore, on scrutiny of record, we
find that involvement of accused No.1 viz. Mehbub Ahmed Yusuf Hasan
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@Latiko as accused No.1 of Sessions Case No.84 of 2009 at Sr. No.11 of
ScheduleA is correctly recorded.
21 In view of this the chart produced herein above clearly
disclose identity and involvement of the accused in the crime for which
they are convicted and sentence and all these convicts were identified
either in T.I. Parade or before the court, or both by the witnesses.
22 For those accused, who were apprehended from the scene
of offence, no T.I. Parade is necessary and even identification in the
court first time also cannot be said to be improper exercise as held by
the Apex Court in the judgment referred to on the subject in VolumeII
of the judgment for example Ramanbhai Naranbhai [supra] and the
State of U.P. Rajju [supra].
23 The presence of accused, who are convicted and sentenced
for life as per ScheduleC and ScheduleD respectively, their presence at
scene of offence, possession and usage of weapons like dharias, iron
pipes and inflammable material, Test Identification Parade and
identification before the court for the crime committed by them stand
established. It is not mere presence of the above accused, but also overt
act being members of unlawful assembly resulting into taking conspiracy
to its logical end to cause death of human beings and damage to Railway
property and, therefore, they are rightly sentenced to life imprisonment
by learned trial court, warranting no interference in exercise of the
appellate powers.
24 That evidence with regard to 11 convicts of sections 302,
120B, 149 and other offences of IPC and sentenced to death, we do not
want to repeat the evidence surfaced on record in view of our discussion
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of evidence of witnesses, in the earlier paragraphs of this Part XIIA of
above convicts hatching conspiracy and also executing the same with
common object in brief emerges as under, which stands established and
believed accordingly.
25 Initially, five accused persons hatched conspiracy viz. [1]
Salim Zarda, [2] Shaukat @ Lalu, [3] Salim Panwala, [4] Jabir
Binyamin and [5] Abdul Razak Kurkur. First four conspirators went to
Kalabhai Petrol Pump in a tempi to buy petrol and Razak Kurkur and
Siraj @Bala went on M80 Moped to petrol pump. That 8 carboys were
loaded in the rickshaw along with deadly weapons and accused reached
near `A’ Cabin via Ali Masjid. When the train stopped on second
occasion a violent mob belonging to Muslim community gathered near
`A’ Cabin and started pelting stones and by use of weapons accused
started breaking widow glasses and Abdul Razak Mohammad Kurkur
and Salim Panwala reached at coach S/6 and Abdul Razak Mohammad
Kurkur placed the mouth of the carboys in broken window on the side of
toilet and another accused Salim Ibrahim Badam @Salim Panwala had
lifted the bottom and spilled the petrol from the carboy into the coach.
In the meanwhile other accused had also taken remaining carboys full of
petrol and reached between coach S/6 and S/7. At the scene of offence
near `A’ cabin where Sabarmati Express had stopped on second time,
Mehboob Latika and Jabir Binyamin, who were present with other
conspirators made holes to two carboys, cut open vestibules between
S/6 and S/7 and Mehboob Latika handed over knife to Shaukat Ahmed
Charkha, who made holes in remaining carboys at the ground and at the
same time the sliding door of the rear side of S/6 coach was broke open
by Mehboob Latika and Jabir Binyamin and Shaukat Ahmed Charkha,
handed over two carboys having holes and Mehboob Latika and Jabir
Binyamin with these two carboys entered into S/6 corridor and
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thereafter immediately Shaukat Ahmed Charkha, followed the same
route that of Mehboob Latika and Jabir Binyamin. Another accused
Rafik Batuk handed over one carboy to Shaukat Ahmed Charkha, who
opened the door from inside of S/6 coach towards platform [Godhra]
side. Then, Rafik Hussain Bhatuk, Irfan Bhobha and Imram Bhatuk,
with three carboys entered into S/6 coach and poured inflammable
material inside while Hasan Ahmed Charkha @Lalu, Irfan Mohmmad
Hanif Abdul Gani Pataliya and Ramzani Binyamin from outside
sprinkled and poured inflammable material on broken window and
doors and immediately Hasan Ahmed Charkha @Lalu burnt a rag and
threw it inside the coach, which ignited the fire.
26 Upon a careful scrutiny and consideration of the evidence
that emerge on appreciation of the entire record of all these cases viz.
Reference cases, appeals and applications filed by the State of
Gujarat, convicts and also by victims arising out of the judgment and
order dated 01.03.2011 of Sessions Case Nos.69 to 86 of 2009 and in
that backdrop of the above judgment, which is under challenge,
relevant provisions of IPC, Code of Criminal Procedure, 1973,
Evidence Act and other penal statutes, interpretation of relevant
provisions of above laws in cases decided by the Apex Court in the
context of submissions made by learned Special Public Prosecutor of
this volume of the judgment by assigning reasons for the basis of our
findings recorded, we conclude that the trial court has not committed
any error in believing the case of the prosecution as proved beyond
reasonable doubt qua those convicts listed in Schedules A & C and
convicted as per Schedules B & D of the operative part of the
impugned judgment and order dated 01.03.2011 for the offences for
which the charge was framed against them.
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27 Thus, subject to our findings and conclusions about guilt of
the convicts in view of prosecution proved its case beyond reasonable
doubt we confirm the final order in para 98 of the impugned judgment
and order dated 01.03.2011 in Sessions Case Nos. 69 to 86 of 2009.
PART XIIIA
APPEALS AGAISNT ACQUITTAL
1 On careful perusal of entire record and especially relied on
by the leaned Special Public Prosecutor as well learned counsel for
victims we find that evidence that surfaced on record in the form of
T.I.Parade exclusively or identification before the court with some
hesitation and uncertainty by the witnesses not believed by the learned
Trial Judge by assigning reasons. No doubt in a given case, it is open for
the appellate court exercising powers under Section 378 read with
Section 386 of Code, 1973 to reappreciate entire evidence on record,
but a possible view is taken by the trial court of failure on the part of the
prosecution to prove its case beyond reasonable doubt resulting into
acquittal which is possible and suffer from no patent illegality for wholly
unsustainable do not required to be disturbed. The Apex Court in catena
of decisions laid down the law in this regard. Two such cases are; [i] K.
Prakashan vs. P.K.Surenderan [(2008)1 SCC 258] and [ii] T.
Subramanian vs. State of T.N. [(2006)1 SCC 401].
2 It is trite that in an appeal against acquittal filed under
Section 378 of the Code, 1973, as such there is no limitation on the
Appellate Court to review the evidence. But at the same time, if on fact
as well as on law, conclusion drawn by the trial Court based on
appreciation of evidence unless compelling, cogent and substantial
reasons appear for interference and when findings of the trial Court are
palpably wrong, manifestly erroneous or demonstrably unsustainable,
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acquittal is not to be reversed or disturbed. When acquittal is based on
the surmises and conjectures and not substantiated by law and evidence
on record, an Appellate Court may reappreciate and review the entire
evidence to see that undue benefit is not given to the accused. Now, it is
well settled that even if two views are possible, the Appellate Court shall
not ordinarily interfere with the judgment of acquittal in a routine
manner unless the judgment of the trial Court is per se wrong on facts
and on law or perverse, substituting its own views by the High Court is
not permissible. That in case of acquittal, it is to be borne into mind by
the Appellate Court that there is double presumption in favour of the
accused that firstly, presumption of innocence in favour of a guilty on
the premise that every person should be presumed to be innocent unless
he is proved to be guilty by the Court of Law, and secondly, when
accused secures an acquittal, such presumption of innocence is
reinforced and reaffirmed by the trial Court. That it is further well
settled that even if two views are possible in an appeal against acquittal,
the view taken by the trial Court is one of the possible views, then the
view which favours acquittal is not to be disturbed or interfered with.
3 That a brief mention about nature of evidence relied on by
the leaned Special Public Prosecutor as well learned counsel for victims
reveal that PW199 Prabhatbhai, GRP constable; PW173 Karansinh
Yadav, RPF constable; PW152 Mahendrasinh Mahida, GRP constable;
PW164 Shrimohan Yadav RPF constable, PW171 Ambishkumar Sanke,
PRF constable, who are almost common in naming accused A18, A17,
A21, A22, A23, A24, A27, A28 of Sessions Case No.69 of 2009. A
32, A31, were named by PW151 Dipakkumar N. Soni, local resident
and A31 was identified by PW175 Gayatri Panchal, an injured
passenger. That PW151 Dipakkumar N. Soni also named and identified
A32 and A33 of Sessions Case No.69 of 2009. A34 was again
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identified by local resident PW159 Rajesh Darji. A35 was identified by
PW208 Murlidhar Mulchand, local resident. A36 and A37 again were
identified by local resident PW154 Chandrashankar Sheniya; PW172
Nitinkumar H. Pathak; PW139 Jashvant Baria GTP constable, PW173
Karansinh Yadav, RPF constable.
4 A39, A41 and A42 were seen in the mob and identified by
PW155 Manoj Hiralal Advani, local resident; PW208 Murlidhar
Mulchandani, local resident and other panchas of GTP constables.
Likewise, PW167 Harsukh Advani, local resident, named and identified
A43, A44 and A45. A47 is identified by PW208 Murlidhar
Mulchandani, local resident, A52 by PW168 Mandakani Bhatiya,
injured passenger, PW148 Hemendra R. Das, GRP constable and PW
230 Mohhabatsinh Jhala, PSI GRP. A53 and A54 are identified by
injured passengers and GRP constables PW150 and 146 and PW139
and PW143. All the above accused belong to Sessions Case No.69 of
2009.
5 A1 of Sessions Case No.70 of 2009 was identified by
injured passenger PW124 and PW160 and local resident PW203.
6 A5 and A6 of Sessions Case No.71 of 2009 were identified
by local resident PW149 and passenger PW109 and PW161, ASI, GRP.
7 A1 of Sessions Case No.72 of 2009 was named in
deposition by PW233.
8 A2 of Sessions Case No.73 of 2009 named and identified
by local resident PW149.
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9 A1, A2 and A3 of Sessions Case No.75 of 2009 were
identified by local residents and also identified other accused viz. PW
159, PW175, injured passenger, PW208 and PW172 respectively.
10 A1 and A2 of Sessions Case No.76 of 2009 were identified
by PW149, PW208, local resident.
11 A4 of Sessions Case No.78 of 2009 was identified by local
resident PW172 and injured passenger PW168.
12 A2 of Sessions Case No.79 of 2009 was identified by PW
149 local resident.
13 A1 of Sessions Case No.80 of 2009 was identified b y PW
163 PW236 and PW199.
14 A1 of Sessions Case No.81 of 2009 was identified by local
resident and injured passenger PW149 and PW150.
15 A1 of Sessions Case No.83 of 2009 was identified by PW
146 GRPO constable.
16 A1 of Sessions Case No.86 of 2009 was identified by two
injured passengers viz. PW168 and PW170 and local resident PW172.
17 A1 of Sessions Case No.204 of 2009 was identified by PW
172 local resident.
18 That above nature of evidence according to the learned trial
Judge was not sufficient enough to convict the accused for the crime for
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which they were charged and on scrutiny of the above witnesses, we are
unable to disagree with the reasons assigned by learned trial Judge for
acquitting the accused and no interference is called for by this court on
this count.
PART XIV
SECTION 391 OF CR.P.C., AN APPLICATION FOR TAKING AN
ADDITIONAL EVIDENCE IN CRIMINAL MISC. APPLICATION NO.17914
OF 2011 [DISPOSED OF BY AN ORDER DATED 24.02.2012 BY
RESERVING LIBERTY TO RAISE CONTENTIONS AT THE STAGE OF
FINAL HEARING OF APPEAL
1 In the application preferred by one of the accused for taking
additional evidence under Section 391 of the Code, 1973 is concerned,
Mr. Jamuar, learned counsel for SIT while adopting submissions of Mr.
J.M.Panchal, learned Special Public Prosecutor appearing for the State of
Gujarat produces on record orders dated 26.03.2008 and 01.05.2009
passed by the Apex Court in the case of NHRC Vs. State of Gujarat
reported in AIR 2009 SC Suppl. 318 about constitution of SIT, object
behind it and direction contained therein to undertake further
investigation and finally satisfaction was expressed by the Apex Court
about investigation carried out by SIT for the subject matter. Even at the
later stage while relieving the Chairman of the SIT vide order dated
13.04.2017, the Apex Court placed on record appreciation for the service
rendered to the court by the learned amicus curaie and the court was
immensely satisfied with the manner in which the proceedings had been
conducted in all the trials resulting into conclusion of all but one trial.
2 Be that as it may, the above facts reveal about satisfactory
investigation carried out by the SIT and the conclusion of various trial
for which SIT was constituted by the Apex Court to conduct fair
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investigation. By adverting ourselves to Section 391 of the Code, 1973,
the appellate court may take further evidence itself or direct it to be
taken by a Magistrate or by a court of Sessions by recording its reasons.
As held by the Apex Court in the case of Ashok Tshering Bhutia [supra]
that additional evidence can be taken at the appellate stage in
exceptional circumstances to remove irregularities, where the
circumstances so warrant in public interest.
3 Further, at interim stage of trial an application for issuance
of summons for defence witnesses viz. A reporter of Tehalka Magazine,
who alleged to have conducted `sting operation’ of certain prosecution
witnesses came to be rejected on 20.08.2010 by learned trial Judge
against which no appeal was preferred before the higher forum. Further,
no recourse was even taken under Section 311 of th Code, 1973 and
powers under Section 391 are to be exercised in exceptional
circumstances, as held by the Apex Court and PW224 Ranjitbhai
Jodhabha was stated to be crossexamined in this regard and questions
were put to him which were answered by denying such allegations.
4 In view of the above and as found by us that neither
irregularities nor illegalities in investigation is surfaced on record, which
may result into miscarriage of justice, we find no exceptional
circumstance exist to entertain prayer for taking an additional evidence
at this stage and it is hereby declined.
5 This court vide order dated 24.02.2012 while deciding
Criminal Misc. Application No.17914 of 2011 observed that it is open for
the applicant to raise all the issues at the time of final hearing of all
these cases. However, in absence of merit, no order is required on this
application for taking an additional evidence.
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PART XV
VICTOMOLOGY AND COMPENSATION
1 Loss of life cannot be compensated in terms of money. It
may, at the most offer some consolation or provide succour to the victim
of the crime.
2 Provisions for compensation have been made in sections
357 and 357A of Code of Criminal Procedure (for short Cr.PC). While
the former burdens the accused with liability inter alia for compensation,
if required by the court; the later which has been brought on the statue
book in 2009, contemplates the scheme for compensation. Section 357
of Cr.PC has its apparent limitations inasmuch as it inter alia relies upon
the paying capacity of the accused and in our opinion it would be
ineffective remedy in the cases involving mass casualties where paying
capacity of the accused may be minimal. In the facts of the present case
we are mostly concerned with the accused coming from economically
weaker section of the society who would not be able to bear the
compensation for 59 deaths and other injured victims.
3 Apart from the fact that the provision of a meager
compensation of Rs.1.5 lakhs made in Notification dated 02.01.2016
issued by the Home Department, State of Gujarat, in exercise of powers
conferred by Section 357A of the Code, 1973 whereby a Scheme is
framed for providing funds for compensation to the victims / their
dependents, who have suffered loss or injury as a result of crime against
the body and who require rehabilitation and definition clause 2[e]
defines “victim” means a person who has suffered loss or injury as a
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result of crime and requires rehabilitation and the expression victim
includes his/her dependents. Further, the above notification provide for
Victim Compensation Fund, Eligibility and procedure for grant of
compensation other than acid attach in clauses 3, 4 and 5 respectively
and Schedule under Rule 5(8) at Sr. No.1 provide for loss of life
compensation to the maximum limit of Rs.1,50,000/. In our opinion,
the above amount of Rs.1,50,000/ for loss of human life is grossly
inadequate and add an insult to injury. No doubt, Section 375A inserted
by Act 5 of 2009 w.e.f. 31.12.2009 and in the facts of this case, the
offence was registered on 27.02.2002 and the Sessions Cases came to be
decided by judgment and order dated 01.03.2011, we are of the view
that appellate powers can be exercised by this Court for awarding
compensation under the above Scheme as well as under Section 386(e),
whereby it is open for the appellate court to make any amendment or
any consequential or incidental order that may be just and proper
keeping in mind Article 21 of the Constitution of India. Further, Section
357 of the Code, 1973 viz. Order to pay compensation contain
subsection (4) which empowers the appellate court or the High Court to
award such compensation. As a necessary corollary powers under
Section 357A of awarding compensation under the Scheme framed by
the State Government can be exercised by the appellate court
irrespective of the offence took place and registered prior to amendment
Act, 5 of 2009, which came into force w.e.f. 31.12.2009. In addition to
the above, the High Court in a case like this cannot remain as mute
spectator and restrict exercise of powers to a meager compensation of
Rs.1,50,000/ in case of a death / loss of life.
4 It cannot be disputed that the courts of jurisdictions other
than the one under Art. 226 or 32 or 142 of the Constitution of India can
also invoke constitutional provisions if such need arises. We, therefore
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as a court of appeal under section 378 of Cr.PC in the peculiar facts of
this case propose to invoke Article 21 of the Constitution of India.
5 Article 21 of the Constitution of India has been thus invoked
in the cases involving violation of human rights by public servants:
In D. K. Basu , Petitioner v. State of W.B. , with Ashok K. Johri,
v. State of U.P. [AIR 1997 SC 610], it was observed in paragraph
No.42A to 55 thus:
“42A. Article 9(5) of the International Covenant on Civil and
Political Rights, 1966 (ICCPR) provides that “anyone who has been
the victim of unlawful arrest or detention shall have enforceable right
to compensation”. Of course, the Government of India at the time of
its ratification (of ICCOR) in 1979 had made a specific reservation to
the effect that the Indian legal system does not recognize a right to
compensation for victims of unlawful arrest or detention and thus did
not become a party to Covenant. That reservation, however, has now
lost its relevance in view of the law laid down by this Court in a
number of cases awarding compensation for the infringement of the
fundamental right to life of a citizen. (See with advantage Rudal
Shah v. State of Bihar, (1983) 4 SCC 141 : (AIR 1983 SC 1086;
Sebastian M. Hongrey v. Union of India; Rajendra Singh v. Smt.
Usha Rani, (1984) 3 SCC 339 : (AIR 1984 SC 956), (1984) 3 SCC
82 : (AIR 1984 SC 1026); Bhim Singh v. state of Jammu and
Kashmir 1984 (Supp) SCC 504 and (1985) 4 SCC 677 : (AIR 1986
SC 494), Saheli v. Commissioner of Police, Delhi, (1990) 1 SCC
422 : (AIR 1990 SC 513). There is indeed no express provision in the
Constitution of India for grant of compensation for violation of a
fundamental right to life, nonetheless, this Court has judicially
evolved a right to compensation in cases of established
unconstitutional deprivation of personal liberty or life. (See :
Neelabati Behera v. State (1993 AIR SCW 2366) (supra)).
43. Till about two decades ago the liability of the Government for
tortious act of its public servants was generally limited and the
person affected could enforce his right in tort by filing a civil suit and
there again the defence of sovereign immunity was allowed to have its
play. For the violation of the fundamental right to life or the basicPage 924 of 988
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human rights, however, this Court has taken the view that the
defence of sovereign immunity is not available to the State for the
tortious acts of the public servants and for the established violation of
the rights guaranteed by Article 21 of the Constitution of the India.
In Nilabati Beehera v. State (1993 AIR SCW 2366) (supra) the
decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P.
(1965) 1 SCR 375 : (AIR 1965 SC 1039), wherein the plea of
sovereign immunity had been upheld in a case of vicarious liability of
the State for the tort committed by its employees was explained thus
(at p. 2376 of AIR SCW):
“In this context, it is sufficient to say that the decision of this Court in
Kasturilal upholding the State’s plea of sovereign immunity for
tortious acts of its servants is confined to the sphere of liability in
tort, which is distinct from the State’s liability for contravention of
fundamental rights to which the doctrine of sovereign immunity has
no application in the constitutional scheme, and is no defence to the
constitutional remedy under Article 32 and 226 of the Constitution
which enables award of compensation for contravention of
fundamental rights, when the only practicable mode of enforcement
of the fundamental rights can be the award of compensation. The
decisions of this Court in Rudul Sah (AIR 1983 SC 1086) and others
in that line relate to award of compensation for contravention of
fundamental rights, in the constitutional remedy under Articles 32
and 226 of the Constitution. On the other hand, Kasturilal related to
the value of goods seized and not returned to the owner due to the
fault of Government Servants, the claim being of damages for the tort
of conversion under the ordinary process, and not a claim for
compensation for violation of fundamental rights. Kasturilal is,
therefore, inapplicable in this context and distinguishable.”
44. The claim in public law for compensation for unconstitutional
deprivation of fundamental right to life and liberty, the protection of
which is guaranteed under the Constitution, is a claim based on strict
liability and is in addition to he claim available in private law for
damages for tortious acts of the public servants. Public law
proceedings serve a different purpose than the private law
proceedings. Award of compensation for established infringement of
the indefeasible rights guaranteed under Article 21 of the
Constitution is a remedy available in public law since the purpose of
public law is not only to civilise public power but also to assure the
citizens that they live under a legal system wherein their rights and
interests shall be protected and preserved. Grant of compensation in
proceedings under Article 32 or 226 of the Constitution of India for
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the established violation of the fundamental rights guaranteed under
Article 21, is an exercise of the Courts under the public law
jurisdiction for penalising the wrong doer and fixing the liability for
the public wrong on the State which failed in the discharge of its
public duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies
available in civil law limits the role of the Courts too much, as the
protector and custodian of the indefeasible rights of the citizen. The
Courts have the obligation to satisfy the social aspirations of the
citizen because the Courts and the law are for the people and expected
to respond to their aspirations. A Court of law cannot close its
consciousness and aliveness to stark realities. Mere punishment of the
offender cannot give much solace to the family of the victim civil
action for damages is a long drawn and cumbersome judicial process.
Monetary compensation for redressal by the Court finding the
infringement of the indefeasible right to life of the citizen is,
therefore, a useful and at times perhaps the only effective remedy to
apply balm to the wounds of the family members of the deceased
victim, who may have been the bread of the family.
• In Nilabati Behera‘s case (1993 AIR SCW 2366) (supra), it was
held (at pp. 2382 and 2383 of AIR SCW) :
“Adverting to the grant of relief to the heirs of a victim of custodial
death for the infraction or invasion of his rights guaranteed under
Article 21 of the Constitution of India, it is not always enough to
relegate him to the ordinary remedy of a civil suit to claim damages
for the tortious act of the State as that remedy in private law indeed
is available to the aggrieved party. The citizen complaining of the
infringement of the indefeasible right under Article 21 of the
Constitution cannot be told that for the established violation of the
fundamental right to life, he cannot get any relief under the public
law by the Courts exercising writ jurisdiction. The primary source of
the public law proceedings stems from the prerogative writs and the
Courts have, therefore, to evolve ‘new’ tools’ to give relief in public law
by moulding it according to the situation with a view to preserve and
protect the Rule of Law. While concluding his first Hamlyn Lecture in
1949 under the title “Freedom under the Law” Lord Denning in has
own style warned :
“No one can suppose that the executive will never be guilty of are sins
that the common to all of us. You may be sure that they will
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things that they ought to do. But if and when wrongs are thereby
suffered by any of us what is the remedy ? Our procedure for securing
our personal freedom is efficient, our procedure for preventing the
abuse of power is not. Just as the pick and shovel is no longer suitable
for the winning of coal, so also the procedure of mandamus,
certiorari, and actions on the case are not suitable for the winning of
freedom in the new age. They must be replaced by new and upto date
machinery, by declarations, injunctions and actions for negligence…
This is not the task of Parliament…the Courts must do this. Of all the
great tasks that lie ahead this is the greatest. Properly exercised the
new powers of the executive lead to the welfare State; but abused they
lead to a totalitarian State. None such must ever be allowed in this
country”.
47. A similar approach of redressing the wrong by award of
monetary compensation against the State for its failure to protect the
fundamental rights of the citizen has been adopted by the Courts of
Ireland, which has a written constitution, guaranteeing fundamental
rights, but which also like the Indian Constitution contains no
provision of remedy for the infringement of those rights. That has,
however, not prevented the Courts in Ireland from developing
remedies, including the award of damages, not only against
individuals guilty of infringement, but against the State itself.
48. The informative and educative observations of O’ Dalaigh CJ in
the State (At the Prosecution of Quinn v. Ryan (1965) IR 70 (122))
deserve special notice. The Learned Chief Justice said :
“It was not the intention of the Constitution in guaranteeing the
fundamental rights of the citizen that these rights should be set at
naught or circumvented. The intention was that rights of substance
were being assured to the individual and that the Courts were the
custodians of those rights. As a necessary corollary, it follows that no
one can with impunity set these rights at naught or circumvent them,
and that the Court’s powers in this regard are as ample as the defence
of the Constitution requires.”
(Emphasis supplied)
49.In Byrne v. Ireland, (1972) IR 241, Walsh J. opined at p. 264:
“In several parts in the Constitution duties to make certain provisions
for the benefit of the citizens are imposed on the State in terms which
bestow rights upon the citizen and, unless some contrary provision
appears in the Constitution, the Constitution must be deemed to have
created a remedy for the enforcement of these rights. It follows that,
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that the remedy must be sought if there has been a failure to
discharge the constitution obligation imposed”.
(Emphasis supplied)
50. In Maharaj v. Attorney General of Trinidad and Tobago (1978)
2 All ER 670, the Privy Council while interpreting Section 6 of the
Constitution of Trinidad and Tobago held that though not expressly
provided therein, it permitted an order for monetary compensation,
by way of ‘redress’ for contravention of the basic human rights and
fundamental freedoms. Lord Diplock speaking for the majority said :
“It was argued on behalf of the Attorney General that Section 6
(2) does not permit of an order for monetary compensation
despite the fact that this kind of redress was ordered in
Jaundoo v. Attorney General of Guyana. Reliance was placed
on the reference in the subsection to ‘enforcing, or securing the
enforcement of, any of the provisions of the said foregoing
section’ as the purpose for which orders etc. could be made. An
order for payment of compensation, it was submitted, did not
amount to the enforcement of the rights that had been
contravened. In their Lordships’ view an order for payment of
compensation when a right protected under Section 1 ‘has been’
contravened is clearly a form of ‘redress’ which a person is
entitled to claim under Section 6(1) and may well be the only
practicable form of redress, as by now it is in the instant case.
The jurisdiction to make such an order is conferred on the High
Court by para (a) of Section 6(2), viz. jurisdiction ‘to hear and
determine any application made by any person in pursuance of
subsection (1) of this section’. The very wide powers to make
orders, issue writs and give directions are ancillary to this”.
51. Lord Diplock then went on the observe (at page 680):
“Finally, their Lordships would say something about the
measure of monetary compensation recoverable under Section 6
where the contravention of the claimant’s constitutional rights
consists of deprivation of liberty otherwise than by due process
of law. The claim is not a claim in private law for damages for
the tort of false imprisonment, under which the damages
recoverable are at large and would include damages for loss of
reputation. It is a claim in public law for compensation for
deprivation of liberty alone.”
52. In Simpson v. Attorney General (Baigent’s case) 1994 NZLR 667,
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the Court of Appeal in New Zealand, dealt with the issue in a very
elaborate manner by reference to a catena of authorities from
different jurisdictions. It considered the applicability of the doctrine of
vicarious liability for torts, like unlawful search, committed by the
police officials which violate the New Zealand Bill of Rights Act,
1990. While dealing with the enforcement of rights and freedoms as
guaranteed by the Bill of Rights for which no specific remedy was
provided. Hardie Boys, J. observed.
“The New Zealand Bill of Rights Act, unless it is to be no more
than an empty statement, is a commitment by the Crown that
those who in the three branches of the Government exercise its
functions, powers and duties will observe the rights that the Bill
affirms. It is consider implicit in that commitment, indeed
essential to its worth, that the Courts are not only to observe
the Bill in the discharge of their own duties but are able to
grant appropriate and effective remedies where rights have
been infringed. I see no reason to think that this should depend
on the terms of a written constitution. Enjoyment of the basic
human rights are the entitlement of every citizen, and their
protection the obligation of every civilised State. They are
inherent in and essential to the structure of society. They do not
depend on the legal or constitutional form in which they are
declared. The reasoning that has led the Privy Council and the
Courts of Ireland and India to the conclusions reached in the
cases to which I have referred (and they are but a sample) is in
my opinion equally valid to the New Zealand Bill of Rights Act
if it is to have life and meaning”.
(Emphasis supplied)
53. The Court of Appeal relied upon the judgments of the Irish
Courts, the Privy Council and referred to the law a laid down in
Nilabati Behera v. State (1993 AIR SCW 2366) (supra) thus :
“Another valuable authority comes from India, where the
constitution empowers the Supreme Court to enforce rights
guaranteed under it. In Nilabati Bahera v. State of Orissa,
1993 Cri LJ 2899, the Supreme Court awarded damages
against the State to the mother of a young man beaten to death
in police custody. The Court held that its power of enforcement
imposed a duty to “forgenew tools”, of which compensation was
an appropriate one where that was the only mode of redress
available. This was not a remedy in tort, but one in public law
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rights to which the principle of sovereign immunity does not
apply. These observations of Anand, J. at p. 2912 may be
noted.
The old doctrine of only relegating the aggrieved to the
remedies available in civil law limits the role of the Courts too
much as protector and guarantor of the indefeasible rights of
the citizens. The Courts have the obligation to satisfy the social
aspirations of the citizens because the Courts and the law are
for the people and expected to respond to their aspirations. The
purpose of public law is not only to civilize public power but
also to assure the citizen that they live under a legal system
which aims to protect their interests and preserve their rights”.
54. Each of the five members of the Court of Appeal in Simpson’s case
(1994 NZLR 667) (supra) delivered a separate judgment but there
was unanimity of opinion regarding the grant of pecuniary
compensation to the victim, for the contravention of his rights
guaranteed under the Bill of Rights Act, notwithstanding the absence
of an express provision in that behalf in the Bill of Rights Act.
55. Thus, to sum up, it is now a well accepted proposition in most of
the jurisdiction, that monetary or pecuniary compensation is an
appropriate and indeed an effective and sometimes perhaps the only
suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the
State is vicariously liable for their acts. The claim of the citizen is
based on the principle of strict liability to which the defence of
sovereign immunity is not available and the citizen must receive the
amount of compensation from the State, which shall have the right to
be indemnified by the wrong doer. In the assessment of compensation,
the emphasis has to be on the compensatory and not on punitive
element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation) must be left
to the Criminal Courts in which the offender is prosecuted, which the
State, in law, is duly bound to do. The award of compensation in the
public law jurisdiction is also without prejudice to any other action
like civil suit for damages which is lawfully available to the victim or
the heirs of the deceased victim with respect to the same matter for
the tortious act committed by the functionaries of the State. The
quantum of compensation will, of course, depend upon the peculiar
facts of each case and no straitjacket formula can be evolved in that
behalf. The relief to redress the wrong for the established invasion of
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the fundamental rights of the citizen, under the public law
jurisdiction is, thus, in addition to the traditional remedies and not
in derogation of them. The amount of compensation as awarded by
the Court and paid by the State to redress the wrong done, may in a
given case, be adjusted against any amount which may be awarded to
the claimant by way of damages in a civil suit.”
6 In Kewal Patil Vs. State of Uttar Pradesh [1995 3 SCC
600] compensation was awarded to a widow of a convict who was killed
in jail by coaccused while serving the sentence under Section 302 of the
Indian Penal Code, as it had resulted into deprivation of his life contrary
to law and in violation of Article 21 of the Constitution of India.
7 As is evident from the decision in D K Basu (supra), the
compensation for violation of human rights by public servants is
awardable by resorting to Article 226 or 32 of the Constitution of India.
However, in Kewal Patil (supra), the Apex Court took the step forward
and awarded the compensation even in a case where human rights were
not infringed by public servant, but by coaccused and it appears that the
failure on the part of the jail authorities to ensure the safety of life of a
prisoner in jail weighed with the Court for awarding the compensation.
The order seems to have been passed in the plenary jurisdiction of the
Apex Court under Article 142 of the Constitution of India; the question is
whether the State can be held responsible under Article 21 of the
Constitution for its failure to maintain law and order which failure
admittedly resulted into deprivation of 59 lives in addition to severe
burn injuries sustained by other occupants of the train.
8 In the case of Suresh & Anr. v. State of Haryana [(2015)2
SCC 227], while dealing with the similar issue of awarding
compensation to a victim under Section 357, 357A of the Code, 1973,
the Apex Court in paras 13 and 14 held as under:
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13 It would now be appropriate to deal with the issue. The
provision has been incorporated in the Cr.P.C. vide Act V of
2009 and the amendment duly came into force in view of the
Notification dated 31st December, 2009. The object and
purpose of the provision is to enable the Court to direct the
State to pay compensation to the victim where the
compensation under Section 357 was not adequate or where
the case ended in acquittal or discharge and the victim was
required to be rehabilitated. The provision was incorporated
on the recommendation of 154th Report of Law Commission.
It recognises compensation as one of the methods of protection
of victims. The provision has received the attention of this
Court in several decisions including Ankush Shivaji Gaikwad v.
State of Maharashtra [(2013) 6 SCC 770] Gangrape ordered
by Village Mangaroo Court in W.B., In re [(2014) 4 SCC 786],
Mohommad Haroon v. Union of India [(2014)5 SCC 252] and
Laxmi v. Union of India [(2014)4 SCC 427].
14 In Abdul Rashid v. State of Odisha and Ors. [2013 SCC
OnLine Ori 493], to which one of us (Goel, J.) was party, it
was observed : [SCC OnLine Ori paras 610]
“6. Question for consideration is whether the
responsibility of the State ends merely by registering a
case, conducting investigation and initiating prosecution
and whether apart from taking these steps, the State has
further responsibility to the victim. Further question is
whether the Court has legal duty to award compensation
irrespective of conviction or acquittal. When the State
fails to identify the accused or fails to collect and present
acceptable evidence to punish the guilty, the duty to
give compensation remains. Victim of a crime or his kith
and kin have legitimate expectation that the State will
punish the guilty and compensate the victim. There are
systemic or other failures responsible for crime
remaining unpunished which need to be addressed by
improvement in quality and integrity of those who deal
with investigation and prosecution, apart from
improvement of infrastructure but punishment of guilty
is not the only step in providing justice to victim. Victim
expects a mechanism for rehabilitative measures,
including monetary compensation. Such compensation
has been directed to be paid in public law remedy with
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reference to Article 21. In numerous cases, to do justice
to the victims, the Hon’ble Supreme Court has directed
payment of monetary compensation as well as
rehabilitative settlement where State or other authorities
failed to protect the life and liberty of victims. For
example, Kewal Pati v. State of U.P. (1995) 3 SCC 600 :
(1995 AIR SCW 2236) (death of prisoner by co
prisoner), Supreme Court Legal Aid Committee v. State
of Bihar, (1991) 3 SCC 482 (failure to provide timely
medical aid by Jail Authorities, Chairman, Rly. Board v.
Chandrima Das, (2000) 2 SCC 465 : (AIR 2000 SC 988)
(Rape of Bangladeshi National by Railway Staff),
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 :
(AIR 1993 SC 1960) (Custodial death), Khatri (I) v.
State of Bihar (1981) 1 SCC 623 (Prisoners’ Blinding by
Jail Staff), Union Carbide Corporation v. Union of India,
(1989) 1 SCC 674 (Gas Leak Victims).
7 Expanding scope of Article 21 is not limited to
providing compensation when the State or its
functionaries are guilty of an act of commission but also
to rehabilitate the victim or his family where crime is
committed by an individual without any role of the State
or its functionary. Apart from the concept of
compensating the victim by way of public law remedy in
writ jurisdiction, need was felt for incorporation of a
specific provision for compensation by courts
irrespective of the result of criminal prosecution.
Accordingly, Section 357A has been introduced in the
Cr.P.C. and a Scheme has been framed by the State of
Odisha called ‘The Odisha Victim Compensation Scheme,
2012’. Compensation under the said Section is payable
to victim of a crime in all cases irrespective of conviction
or acquittal. The amount of compensation may be
worked out at an appropriate forum in accordance with
the said Scheme, but pending such steps being taken,
interim compensation ought to be given at the earliest in
any proceedings.
8. In Ankush Vhivaji Gaikwad v. State of Maharashtra,
(2013) 6 SCC 770 : (AIR 2013 SC 2454), the matter was
reviewed by the Hon’ble Supreme Court with reference
to development in law and it was observed : [SCC
pp.78591 & 797, paras 3348 & 6667]
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“33. The long line of judicial pronouncements of
this Court recognised in no uncertain terms a
paradigm shift in the approach towards victims of
crimes who were held entitled to reparation,
restitution or compensation for loss or injury
suffered by them. This shift from retribution to
restitution began in the mid 1960s and gained
momentum in the decades that followed.
Interestingly the clock appears to have come full
circle by the lawmakers and courts going back in
a great measure to what was in ancient times
common place. Harvard Law Review (1984) in an
article on “Victim Restitution in Criminal Law
Process: A Procedural Analysis” sums up the
historical perspective of the concept of restitution
in the following words:
“Far from being a novel approach to
sentencing, restitution has been employed
as a punitive sanction throughout history.
In ancient societies, before the conceptual
separation of civil and criminal law, it was
standard practice to require an offender to
reimburse the victim or his family for any
loss caused by the offense. The primary
purpose of such restitution was not to
compensate the victim, but to protect the
offender from violent retaliation by the
victim or the community. It was a means by
which the offender could buyback the
peace he had broken. As the State gradually
established a monopoly over the institution
of punishment, and a division between civil
and criminal law emerged, the victim’s right
to compensation was incorporated into civil
law.”
34 With modern concepts creating a distinction
between civil and criminal law in which civil law
provides for remedies to award compensation for private
wrongs and the criminal law takes care of punishing the
wrongdoer, the legal position that emerged till recent
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times was that criminal law need not concern itself with
compensation to the victims since compensation was a
civil remedy that fell within the domain of the civil
Courts. This conventional position has in recent times
undergone a notable sea change, as societies world over
have increasingly felt that victims of the crimes were
being neglected by the legislatures and the Courts alike.
Legislations have, therefore, been introduced in many
countries including Canada, Australia, England, New
Zealand, Northern Ireland and in certain States in the
USA providing for restitution/reparation by Courts
administering criminal justice.
35 England was perhaps the first to adopt a separate
statutory scheme for victim compensation by the State
under the Criminal Injuries Compensation Scheme,
1964. Under the Criminal Justice Act, 1972 the idea of
payment of compensation by the offender was
introduced. The following extract from the Oxford
Handbook of Criminology (1994 Edn., pp.12371238),
which has been quoted with approval in Delhi Domestic
Working Women’s Forum v. Union of India and Ors.
(1995) 1 SCC 14 is apposite: (SCC pp.2021, para16)
“16….Compensation payable by the offender was
introduced in the Criminal Justice Act, 1972
which gave the Courts powers to make an
ancillary order for compensation in addition to the
main penalty in cases where ‘injury, loss, or
damage’ had resulted. The Criminal Justice Act,
1982 made it possible for the first time to make a
compensation order as the sole penalty. It also
required that in cases where fines and
compensation orders were given together, the
payment of compensation should take priority
over the fine. These developments signified a
major shift in penology thinking, reflecting the
growing importance attached to restitution and
reparation over the more narrowly retributive
aims of conventional punishment. The Criminal
Justice Act, 1982 furthered this shift. It required
courts to consider the making of a compensation
order in every case of death, injury, loss or
damage and, where such an order was not given,
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imposed a duty on the court to give reasons for
not doing so. It also extended the range of injuries
eligible for compensation. These new
requirements mean that if the court fails to make
a compensation order it must furnish reasons.
Where reasons are given, the victim may apply for
these to be subject to judicial review………
The 1991 Criminal Justice Act contains a number
of provisions which directly or indirectly
encourage an even greater role for compensation.’
(Emphasis supplied)
36 In the United States of America, the Victim and
Witness Protection Act of 1982 authorizes a federal
court to award restitution by means of monetary
compensation as a part of a convict’s sentence. Section
3553(a)(7) of Title 18 of the Act requires Courts to
consider in every case “the need to provide restitution to
any victims of the offense”. Though it is not mandatory
for the Court to award restitution in every case, the Act
demands that the Court provide its reasons for denying
the same. Section 3553(c) of Title 18 of the Act states as
follows:
“If the court does not order restitution or orders
only partial restitution, the court shall include in
the statement the reason thereof.”
(Emphasis supplied)
37 In order to be better equipped to decide the
quantum of money to be paid in a restitution order, the
United States federal law requires that details such as
the financial history of the offender, the monetary loss
caused to the victim by the offence, etc. be obtained
during a Presentence Investigation, which is carried out
over a period of 5 weeks after an offender is convicted.
38 Domestic/Municipal Legislation apart even the UN
General Assembly recognized the right of victims of
crimes to receive compensation by passing a resolution
titled “Declaration on Basic Principles of Justice for
Victims and Abuse of Power, 1985”. The Resolution
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contained the following provisions on restitution and
compensation:
” Restitution
8. Offenders or third parties responsible for
their behaviour should, where appropriate, make
fair restitution to victims, their families or
dependents. Such restitution should include the
return of property or payment for the harm or loss
suffered, reimbursement of expenses incurred as a
result of the victimization, the provision of
services and the restoration of rights.
9 Governments should review their practices,
Regulations and laws to consider restitution as an
available sentencing option in criminal cases, in
addition to other criminal sanctions.
10 In cases of substantial harm to the
environment, restitution, if ordered, should
include, as far as possible, restoration of the
environment, reconstruction of the infrastructure,
replacement of community facilities and
reimbursement of the expenses of relocation,
whenever such harm results in the dislocation of a
community.
11 Where public officials or other agents acting
in an official or quasiofficial capacity have
violated national criminal laws, the victims should
receive restitution from the State whose officials
or agents were responsible for the harm inflicted.
In cases where the Government under whose
authority the victimizing act or omission occurred
is no longer in existence, the State or Government
successorintitle should provide restitution to the
victims.
Compensation
12 When compensation is not fully available
from the offender or other sources, States should
endeavour to provide financial compensation to:
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[a] Victims who have sustained
significant bodily injury or impairment of
physical or mental health as a result of
serious crimes;
[b] The family, in particular dependents
of persons who have died or become
physically or mentally incapacitated as a
result of such victimization.
13 The establishment, strengthening and
expansion of national funds for compensation to
victims should be encouraged. Where appropriate,
other funds may also be established for this
purpose, including in those cases where the State
of which the victim is a national is not in a
position to compensate the victim for the harm.”
39 The UN General Assembly passed a resolution titled
“Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious
Violations of International Humanitarian Law, 2005”
which deals with the rights of victims of international
crimes and human rights violations. These Principles
(while in their Draft form) were quoted with approval
by this Court in State of Gujarat and Anr. v. Hon’ble
High Court of Gujarat (1998) 7 SCC 392 : (AIR 1998 SC
3164) in the following words:
“94. In recent years the right to reparation for
victims of violation of human rights is gaining
ground. United Nations Commission of Human
Rights has circulated draft Basic Principles and
Guidelines on the Right to Reparation for Victims
of Violation of Human Rights, (see Annexure).”
40 Amongst others the following provisions on
restitution and compensation have been made:
“12 Restitution shall be provided to reestablish the
situation that existed prior to the violations of humanPage 938 of 988
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rights or international humanitarian law. Restitution
requires inter alia, restoration of liberty, family life
citizenship, return to one’s place of residence, and
restoration of employment or property.
13 Compensation shall be provided for any
economically assessable damage resulting from
violations of human rights or international humanitarian
law, such as:
[a] Physical or mental harm, including pain,
suffering and emotional distress;
[b] Lost opportunities including education;
[c] Material damages and loss of earnings,
including loss of earning potential;
[d] Harm to reputation or dignity;
[e] Costs required for legal or expert assistance,
medicines and medical services.”
41 Back home the Code of Criminal Procedure of
1898 contained a provision for restitution in the form of
Section 545, which stated in subclause 1(b) that the
Court may direct
“payment to any person of compensation for any
loss or injury caused by the offence when
substantial compensation is, in the opinion of the
Court, recoverable by such person in a Civil
Court.”
42 The Law Commission of India in its 41st Report
submitted in 1969 discussed Section 545 of the Code of
Criminal Procedure of 1898 extensively and stated as
follows:
“46. 12.. Section 545 Under Clause (b) of sub
section (1) of Section 545, the Court may direct“in the payment to any person of
compensation for any loss or injury causedPage 939 of 988
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by the offence when substantial
compensation is, in the opinion of the
Court, recoverable by such person in a Civil
Court.”
The significance of the requirement that
compensation should be recoverable in a Civil
Court is that the act which constitutes the offence
in question should also be a tort. The word
“substantial” appears to have been used to exclude
cases where only nominal damages would be
recoverable. We think it is hardly necessary to
emphasise this aspect, since in any event it is
purely within the discretion of the Criminal Courts
to order or not to order payment of compensation,
and in practice, they are not particularly liberal in
utilizing this provision. We propose to omit the
word “substantial” from the clause.”
(Emphasis supplied)
43 On the basis of the recommendations made by the
Law Commission in the above report, the Government of
India introduced the Code of Criminal Procedure Bill,
1970, which aimed at revising Section 545 and
introducing it in the form of Section 357 as it reads
today. The Statement of Objects and Reasons underlying
the Bill was as follows:
“Clause 365 [now Section 357] which corresponds
to Section 545 makes provision for payment of
compensation to victims of crimes. At present such
compensation can be ordered only when the Court
imposes a fine the amount is limited to the
amount of fine. Under the new provision,
compensation can be awarded irrespective of
whether the offence is punishable with fine and
fine is actually imposed, but such compensation
can be ordered only if the accused is convicted.
The compensation should be payable for any loss
or injury whether physical or pecuniary and the
Court shall have due regard to the nature of
injury, the manner of inflicting the same, the
capacity of the accused to pay and other relevantPage 940 of 988
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factors. ”
(Emphasis supplied)
44 As regards the need for Courts to obtain
comprehensive details regarding the background of the
offender for the purpose of sentencing, the Law
Commission in its 48th Report on “Some Questions
Under the Code of Criminal Procedure Bill, 1970″
submitted in 1972 discussed the matter in some detail,
stating as follows:
“45. Sentencing It is now being increasingly
recognised that a rational and consistent
sentencing policy requires the removal of several
deficiencies in the present system. One such
deficiency is a lack of comprehensive information
as to the characteristics and background of the
offender.
The aims of sentencing themselves obscure
become all the more so in the absence of
comprehensive information on which the
correctional process is to operate. The public as
well as the courts themselves are in the dark
about judicial approach in this regard.
We are of the view that the taking of evidence as
to the circumstances relevant to sentencing should
be encouraged, and both the prosecution and the
accused should be allowed to cooperate in the
process.”
(Emphasis supplied)
45 The Code of Criminal Procedure of 1973 which
incorporated the changes proposed in the said Bill of
1970 states in its Objects and Reasons that Section 357
was “intended to provide relief to the proper sections of
the community” and that the amended Cr.P.C.
empowered the Court to order payment of compensation
by the accused to the victims of crimes “to a larger
extent” than was previously permissible under the Code.
The changes brought about by the introduction of
Section 357 were as follows:
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[i] The word “substantial” was excluded.
[ii] A new subsection (3) was added which
provides for payment of compensation even in
cases where the fine does not form part of the
sentence imposed.
[iii] Subsection (4) was introduced which states
that an order awarding compensation may be
made by an Appellate Court or by the High Court
or Court of Session when exercising its powers of
revision.
46 The amendments to the Code of Criminal
Procedure brought about in 2008 focused heavily on the
rights of victims in a criminal trial, particularly in trials
relating to sexual offences. Though the 2008
amendments left Section 357 unchanged, they
introduced Section 357A under which the Court is
empowered to direct the State to pay compensation to
the victim in such cases where
“the compensation awarded under Section 357 is
not adequate for such rehabilitation, or where the
case ends in acquittal or discharge and the victim
has to be rehabilitated.”
Under this provision, even if the accused is not tried but
the victim needs to be rehabilitated, the victim may
request the State or District Legal Services Authority to
award him/her compensation. This provision was
introduced due to the recommendations made by the
Law Commission of India in its 152nd and 154th
Reports in 1994 and 1996 respectively.
47 The 154th Law Commission Report on the Code of
Criminal Procedure devoted an entire chapter to
‘Victimology’ in which the growing emphasis on victim’s
rights in criminal trials was discussed extensively as
under:
“1 Increasingly the attention of criminologists,
penologists and reformers of criminal justice
system has been directed to victimology, controlPage 942 of 988
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of victimization and protection of victims of
crimes. Crimes often entail substantive harms to
people and not merely symbolic harm to the social
order. Consequently the needs and rights of
victims of crime should receive priority attention
in the total response to crime. One recognized
method of protection of victims is compensation
to victims of crime. The needs of victims and their
family are extensive and varied.
xx xx xx xx xx
9.1 The principles of victimology has
foundations in Indian constitutional
jurisprudence. The provision on Fundamental
Rights (Part III) and Directive Principles of State
Policy (Part IV) form the bulwark for a new social
order in which social and economic justice would
blossom in the national life of the country (Article
38). Article 41 mandates inter alia that the State
shall make effective provisions for “securing the
right to public assistance in cases of disablement
and in other cases of undeserved want.” So also
Article 51A makes it a fundamental duty of every
Indian citizen, inter alia ‘to have compassion for
living creatures’ and to ‘develop humanism’. If
emphatically interpreted and imaginatively
expanded these provisions can form the
constitutional underpinnings for victimology.
9.2 However, in India the criminal law
provides compensation to the victims and their
dependents only in a limited manner. Section 357
of the Code of Criminal Procedure incorporates
this concept to an extent and empowers the
Criminal Courts to grant compensation to the
victims.
xx xx xx xx xx
11 In India the principles of compensation to
crime victims need to be reviewed and expanded
to cover all cases. The compensation should not
be limited only to fines, penalties and forfeitures
realized. The State should accept the principle of
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providing assistance to victims out of its own
funds…..”
48 The question then is whether the plenitude of the
power vested in the Courts under Sections 357 and 357
A, notwithstanding, the Courts can simply ignore the
provisions or neglect the exercise of a power that is
primarily meant to be exercised for the benefit of the
victims of crimes that are so often committed though
less frequently punished by the Courts. In other words,
whether Courts have a duty to advert to the question of
awarding compensation to the victim and record reasons
while granting or refusing relief to them?
xx xx xx xx xx
66 To sum up: While the award or refusal of
compensation in a particular case may be within the
Court’s discretion, there exists a mandatory duty on the
Court to apply its mind to the question in every criminal
case. Application of mind to the question is best
disclosed by recording reasons for awarding/refusing
compensation. It is axiomatic that for any exercise
involving application of mind, the Court ought to have
the necessary material which it would evaluate to arrive
at a fair and reasonable conclusion. It is also beyond
dispute that the occasion to consider the question of
award of compensation would logically arise only after
the court records a conviction of the accused. Capacity
of the accused to pay which constitutes an important
aspect of any order under Section 357, Code of Criminal
Procedure would involve a certain enquiry albeit
summary unless of course the facts as emerging in the
course of the trial are so clear that the court considers it
unnecessary to do so. Such an enquiry can precede an
order on sentence to enable the court to take a view,
both on the question of sentence and compensation that
it may in its wisdom decide to award to the victim or
his/her family.
67 Coming then to the case at hand, we regret to say
that the trial Court and the High Court appear to have
remained oblivious to the provisions of Section 357,
Code of Criminal Procedure. The judgments under
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appeal betray ignorance of the Courts below about the
statutory provisions and the duty cast upon the Courts.
Remand at this distant point of time does not appear to
be a good option either. This may not be a happy
situation but having regard to the facts and the
circumstances of the case and the time lag since the
offence was committed, we conclude this chapter in the
hope that the courts remain careful in future.”
9 In Rohtash alias Pappu v. State of Haryana (Cri. A.
No. 250 of 1999, decided on 1.4.2008), a Division Bench
of the Punjab and Haryana High Court observed:
“18. May be, in spite of best efforts, the State fails
in apprehending and punishing the guilty but that
does not prevent the State from taking such steps
as may reassure and protect the victims of crime.
Should justice to the victims depend only on the
punishment of the guilty? Should the victims have
to wait to get justice till such time that the
handicaps in the system which result in large scale
acquittals of guilty, are removed? It can be a long
and seemingly endless wait. The need to address
cry of victims of crime, for whom the Constitution
in its Preamble holds out a guarantee for ‘justice’
is paramount. How can the tears of the victim be
wiped off when the system itself is helpless to
punish the guilty for want of collection of
evidence or for want of creating an environment
in which witnesses can fearlessly present the truth
before the Court? Justice to the victim has to be
ensured irrespective of whether or not the
criminal is punished.
19 The victims have right to get justice, to
remedy the harm suffered as a result of crime.
This right is different from and independent of the
right to retribution, responsibility of which has
been assumed by the State in a society governed
by Rule of Law. But if the State fails in
discharging this responsibility, the State must still
provide a mechanism to ensure that the victim’s
right to be compensated for his injury is not
ignored or defeated.
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20 Right of access to justice under Article 39A
and principle of fair trial mandate right to legal
aid to the victim of the crime. It also mandates
protection to witnesses, counselling and medical
aid to the victims of the bereaved family and in
appropriate cases, rehabilitation measures
including monetary compensation. It is a paradox
that victim of a road accident gets compensation
under no fault theory, but the victim of crime does
not get any compensation, except in some cases
where the accused is held guilty, which does not
happen in a large percentage of cases.
21. Though a provision has been made for
compensation to victims under Section 357,
Cr.P.C., there are several inherent limitations. The
said provision can be invoked only upon
conviction, that too at the discretion of the Judge
and subject to financial capacity to pay by the
accused. The long time taken in disposal of the
criminal case is another handicap for bringing
justice to the victims who need immediate relief,
and cannot wait for conviction, which could take
decades. The grant of compensation under the
said provision depends upon financial capacity of
the accused to compensate, for which, the
evidence is rarely collected. Further, victims are
often unable to make a representation before the
Court for want of legal aid or otherwise. This is
perhaps why even on conviction this provision is
rarely pressed into service by the Courts. Rate of
conviction being quite low, inter alia, for
competence of investigation, apathy of witnesses
or strict standard of proof required to ensure that
innocent is not punished, the said provision is
hardly adequate to address to need of victims.
In Hari Krishan and State of Haryana v. Sikhbir
Singh, AIR 1988 SC 2127, referring to provisions
for compensation, the Hon’ble Supreme Court
observed:
“10. …… This power was intended to do
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something to reassure the victim that he or
she is not forgotten in the criminal justice
system. It is a measure of responding
appropriately to crime as well of reconciling
the victim with the offender. It is, to some
extent, a constructive approach to crimes. It
is indeed a step forward in our criminal
justice system. We, therefore, recommend
to all Courts to exercise this power liberally
so as to meet the ends of justice in a better
way.”
22 It is imperative to educate the investigating agency
as well as the trial Judges about the need to provide
access to justice to victims of crime, to collect evidence
about financial status of the accused. It is also
imperative to create mechanisms for rehabilitation
measures by way of medical and financial aid to the
victims. The remedy in civil law of torts against the
injury caused by the accused is grossly inadequate and
illusory.
23 This unsatisfactory situation is in contrast to global
developments and suggestions of Indian experts as well.
Some of the significant developments in this regard may
be noticed as under:
[1] UN Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power, 1985,
highlighting the following areas:
[i] Access to Justice and fair treatment;
[ii] Restitution;
[iii] Compensation;
[iv] Assistance.
[2] Council of Europe Recommendation on the
Position of the Victim in the Framework of
Criminal Law and Procedure, 1985.
[3] Statement of the Victims’ Rights in the
Process of Criminal Justice, issued by the
European Forum for Victims’ Services in 1996.
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[4] European Union Framework Decision on
the Standing of Victims in Criminal Proceedings.
[5] Council of Europe Recommendations on
assistance to Crime victims adopted on 14.6.2006.
[6] 152nd and 154th Report of the Law
Commission of India, 1994 and 1996 respectively,
recommending introduction of Section 357A in
Criminal Procedure Code, prescribing, inter alia,
compensation to the victims of crime.
[7] Recommendations of the Malimath
Committee, 2003.
24 The subjectmatter has been dealt with by experts
from over 40 countries in series of meetings and a
document has been developed in cooperation with
United Nations Office at Vienna, Centre for International
Crime Prevention and the compilation under the
heading “Handbook on Justice for Victims” which deals
with various aspects of impact of victimization, victims
assistance programmes and role and responsibility of
frontline professionals and others to victims. The South
African Law Commission, in its “Issue Paper 7” (1997)
under the heading “Sentencing Restorative Justice:
Compensation for Victims of Crime and Victim
Empowerment” has deliberated on various relevant
aspects of this issue.
xx xx xx xx xx
27 In Malimath Committee Report (March 2003), it
was observed:“6.7.1 Historically speaking, Criminal Justice
System seems to exist to protect the power, the
privilege and the values of the elite sections in
society. The way crimes are defined and the
system is administered demonstrate that there is
an element of truth in the above perception even
in modern times. However, over the years the
dominant function of criminal justice is projected
to be protecting all citizens from harm to either
their person or property, the assumption beingPage 948 of 988
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that it is the primary duty of a State under rule of
law. The State does this by depriving individuals
of the power to take law into their own hands and
using its power to satisfy the sense of revenge
through appropriate sanctions. The State (and
society), it was argued, is itself the victim when a
citizen commits a crime and thereby questions its
norms and authority. In the process of this
transformation of torts to crimes, the focus of
attention of the system shifted from the real
victim who suffered the injury (as a result of the
failure of the State) to the offender and how he is
dealt with by the State. Criminal Justice came to
comprehend all about crime, the criminal, the way
he is dealt with, the process of proving his guilt
and the ultimate punishment given to him. The
civil law was supposed to take care of the
monetary and other losses suffered by the victim.
Victims were marginalized and the State stood
forth as the victim to prosecute and punish the
accused.
6.7.2 What happens to the right of victim to get
justice to the harm suffered? Well, he can be
satisfied if the State successfully gets the criminal
punished to death, a prison sentence or fine. How
does he get justice if the State does not succeed in
so doing? Can he ask the State to compensate him
for the injury? In principle, that should be the
logical consequence in such a situation; but the
State which makes the law absolves itself.
6.8.1 The principle of compensating victims of
crime has for long been recognized by the law
though it is recognized more as a token relief
rather than part of a punishment or substantial
remedy. When the sentence of fine is imposed as
the sole punishment or an additional punishment,
the whole or part of it may be directed to be paid
to the person having suffered loss or injury as per
the discretion of the Court (Section 357, Cr.P.C.).
Compensation can be awarded only if the offender
has been convicted of the offence with which he is
charged.
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xx xx xx xx xx
6.8.7 Sympathizing with the plight of victims
under Criminal Justice administration and taking
advantage of the obligation to do complete justice
under the Indian Constitution in defense of
human rights, the Supreme Court and High Courts
in India have of late evolved the practice of
awarding compensatory remedies not only in
terms of money but also in terms of other
appropriate reliefs and remedies. Medical justice
for the Bhagalpur blinded victims, rehabilitative
justice to the communal violence victims and
compensatory justice to the Union Carbide victims
are examples of this liberal package of reliefs and
remedies forged by the Apex Court. The recent
decisions in Nilabati Behera v. State of Orissa
(1993) 2 SCC 746 : (AIR 1993 SC 1960) and in
Chairman, Railway Board v. Chandrima Das, are
illustrative of this new trend of using
Constitutional jurisdiction to do justice to victims
of crime. Substantial monetary compensations
have been awarded against the instrumentalities
of the State for failure to protect the rights of the
victim.
6.8.8 These decisions have clearly acknowledged
the need for compensating victims of violent
crimes irrespective of the fact whether offenders
are apprehended or punished. The principle
invoked is the obligation of the State to protect
basic rights and to deliver justice to victims of
crimes fairly and quickly. It is time that the
Criminal Justice System takes note of these
principles of Indian Constitution and legislate on
the subject suitably.” ”
10 In Re: State of Assam and 2 others (PIL (Suo Motu)
No. 26/2013) vide judgment dated 24.4.2013, a
Division Bench of Gauhati High Court observed :
“We have heard learned counsel for the parties on
the issue whether in absence of any prohibition
under the scheme, interim compensation ought toPage 950 of 988
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be paid at the earliest to the victim irrespective of
stage of enquiry or trial, either on application of
the victim or suo motu by the Court.
In Savitri v. Govind Singh Rawat, (1985) 4 SCC 337 :
(AIR 1986 SC 984), question of interim maintenance
under Section 125, Cr.P.C. was considered and it was
observed : [SCC pp. 33942, paras 3 & 6]“3. It is true that there is no express provision in
the Code which authorises a Magistrate to make
an interim order directing payment of
maintenance pending disposal of an application
for maintenance. The Code does not also expressly
prohibit the making of such an order. The
question is whether such a power can be implied
to be vested in a Magistrate having regard to the
nature of the proceedings under Section 125 and
other cognate provisions found in Chapter IX of
the Code which is entitled “Order for Maintenance
of Wives, Children and Parents”. Section 125 of
the Code confers power on a Magistrate of the
First Class to direct a person having sufficient
means but who neglects or refuses to maintain (i)
his wife, unable to maintain herself, or (ii) his
legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or (iii)
his legitimate or illegitimate child (not being a
married daughter) who has attained majority,
where such child is, by reason of any physical or
mental abnormality or injury unable to maintain
itself, or (iv) his father or mother, unable to
maintain himself or herself, upon proof of such
neglect or refusal, to pay a monthly allowance for
the maintenance of his wife or such child, father
or mother, as the case may be, at such monthly
rate not exceeding five hundred rupees in the
whole as such Magistrate thinks fit. Such
allowance shall be payable from the date of the
order, or, if so ordered from the date of the
application for maintenance. Section 126 of the
Code prescribes the procedure for the disposal of
an application made under Section 125. Section
127 of the Code provides for alteration of the ratePage 951 of 988
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of maintenance in the light of the changed
circumstances or an order or decree of a
competent civil court. Section 128 of the Code
deals with the enforcement of the order of
maintenance. It is not necessary to refer to the
other details contained in the abovesaid
provisions.
6. In view of the foregoing it is the duty of the
court to interpret the provisions in Chapter IX of
the Code in such a way that the construction
placed on them would not defeat the very object
of the legislation. In the absence of any express
prohibition, it is appropriate to construe the
provisions in Chapter IX as conferring an implied
power on the Magistrate to direct the person
against whom an application is made under
Section 125 of the Code to pay some reasonable
sum by way of maintenance to the applicant
pending final disposal of the application. It is
quite common that applications made under
Section 125 of the Code also take several months
for being disposed of finally. In order to enjoy the
fruits of the proceedings under Section 125, the
applicant should be alive till the 17 date of the
final order and that the applicant can do in a large
number of cases only if an order for payment of
interim maintenance is passed by the court. Every
court must be deemed to possess by necessary
intendment all such powers as are necessary to
make its orders effective. This principle is
embodied in the maxim “ubi aliquid conceditur,
conceditur et id sine quo res ipsa esse non potest”
(Where anything is conceded, there is conceded
also anything without which the thing itself
cannot exist). [Vide Earl Jowitt’s Dictionary of
English Law, 1959 Edn., p. 1797.] Whenever
anything is required to be done by law and it is
found impossible to do that thing unless
something not authorised in express terms be also
done then that something else will be supplied by
necessary intendment. Such a construction though
it may not always be admissible in the present
case however would advance the object of the
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legislation under consideration. A contrary view is
likely to result in grave hardship to the applicant,
who may have no means to subsist until the final
order is passed. There is no room for the
apprehension that the recognition of such implied
power would lead to the passing of interim orders
in a large number of cases where the liability to
pay maintenance may not exist. It is quite possible
that such contingency may arise in a few cases but
the prejudice caused thereby to the person against
whom it is made is minimal as it can be set right
quickly after hearing both the parties. The
Magistrate may, however, insist upon an affidavit
being filed by or on behalf of the applicant
concerned stating the grounds in support of the
claim for interim maintenance to satisfy himself
that there is a prima facie case for making such an
order. Such an order may also be made in an
appropriate case ex parte pending service of
notice of the application subject to any
modification or even an order of cancellation that
may be passed after the respondent is heard. If a
civil court can pass such interim orders on
affidavits, there is no reason why a Magistrate
should not rely on them for the purpose of issuing
directions regarding payment of interim
maintenance. The affidavit may be treated as
supplying prima facie proof of the case of the
applicant. If the allegations in the application or
the affidavit are not true, it is always open to the
person against whom such an order is made to
show that the order is unsustainable. Having
regard to the nature of the jurisdiction exercised
by a Magistrate under Section 125 of the Code,
we feel that the said provision should be
interpreted as conferring power by necessary
implication on the Magistrate to pass an order
directing a person against whom an application is
made under it to pay a reasonable sum by way of
interim maintenance subject to the other
conditions referred to therein pending final
disposal of the application. In taking this view we
have also taken note of the provisions of Section
7(2)(a) of the Family Courts Act, 1984 (Act 66 of
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1984) passed recently by Parliament proposing to
transfer the jurisdiction exercisable by Magistrates
under Section 125 of the Code to the Family
Courts constituted under the said Act.”
Above view has been reiterated, inter alia, in Shail
Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC
632 : (AIR 2008 SC 3006).
We are of the view that above observations
support the submission that interim compensation
ought to be paid at the earliest so that immediate
need of victim can be met. For determining the
amount of interim compensation, the Court may
have regard to the facts and circumstances of
individual cases including the nature of offence,
loss suffered and the requirement of the victim.
On an interim order being passed by the Court,
the funds available with the District/State Legal
Services Authorities may be disbursed to the
victims in the manner directed by the Court, to be
adjusted later in appropriate proceedings. If the
funds already allotted get exhausted, the State
may place further funds at the disposal of the
Legal Services Authorities.”
9 In the case of Suresh [supra], the Apex Court was
considering the above provisions of Section 357, 357A of the Code, 1973
in the backdrop of the offence under Section 302 of the IPC which took
place on 18.12.2000, which was admittedly prior to amendment of Act 5
of 2009 and considering the law of compensation and victimology at
length the Apex Court awarded Rs.10,00,000/.
10 Maintenance of law and order is State’s absolute
responsibility without any exception and in the event of mass casualty at
a public place in a case where there was a mass declaration of a vow by
members of public to perform Kar Seva at the highly disputed Ayodhya
site, the State’s responsibility multiplied manifold and failure to maintain
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law and order in such a situation would necessarily render the State to
the liability of compensation for the victims of crime. It is evident from
the testimony of several witnesses (to illustrate see PW 83, 84, 85) that
it was a public call to take part in a religious ceremony for Seva Puja /
Aahuti given by religious bodies like Vishwa Hindu Parishad, Bajrang
Dal, etc., in the month of February, 2002 on an around 18th of February,
2002 at Ayodhya. There is a long drawn dispute in relation to Ram
Janma Bhumi and Babri Masjid in Ayodhya and State cannot plead
ignorance of the said situation. Constitutional obligation to maintain
law and order obligated the State to ensure safety of the persons who
ventured to go to Ayodhya for Aahuti, etc. Furthermore, Signal Faliya,
Godhra is highly sensitive communal riots prone zone to the knowledge
of the State. In the above factual scenario, the Government ought to
have apprehended the trouble at least in sensitive areas like Signal
Faliya wherefrom the train was scheduled to pass. Evidence on record
do not indicate any dedicated efforts of maintaining law and order at
sensitive place like Signal Faliya, except few constables / RPF personnels
loitering here and there before the incident in question. It is the case of
the State that as many as 59 persons were roasted alive and many more
were injured during the incident in question. This argument itself admits
the failure on the part of the State to maintain law and order.
11 This is not a case where in a stray incident one or two lives
are lost. It is a case of mass casualty and when mass casualty occurs,
State’s responsibility multiplies manifold and it can have no reason to
deny just fair and reasonable compensation. The compensation is thus
not a bounty but it can be sourced to Article 21 of the Constitution of
India. It can be argued that if the State lays down the rule of behaviour,
it should not only punish the violation thereof but also look after the
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suffers of the violation; if the State prohibits all private vengeance, it
should go to the rescue of victim of crime, the perpetration of which it
failed to contain; if the reformatory measures are necessary for
rehabilitation of offenders, the compensatory measures for rehabilitation
of the victims of crime are also necessary.
12 It cannot be disputed that each and every individual either
dead or injured in the incident in question had guaranteed right to life
and liberty under Article 21 of the Constitution of India and the lack of
maintenance of law and order in the factual scenario abovestated would
render the State liable to compensation not only because lives are lost;
but because it failed to maintain the expected law and order.
13 Likewise, Indian Railways, particularly, North, Central and
Western Zones and authorities Incharge thereof were fully aware about
overcrowded trains running through the territories under their control
for which no measures were taken to ensure safety of the passengers or
to provide alternatives. We are, therefore, of the view that not only the
State Government, but the Ministry of Railways, Union of India, are
equally negligent in performing the duties for providing safety to the
passengers travelling in the trains. That compensation can neither be
peanuts for the victim nor a bounty. It must be just, fair and reasonable.
The cases on hand have gone through the gamut of investigation, further
investigation, constituting SIT by the Apex Court, then trial and
proceedings before this Court and the incident which took place in the
year 2002, compensation that is to be decided and paid in the year 2017
if determined reasonably, meaning thereby without entering into the
percentage of interest, etc, the amount of compensation to be awarded
to each of the victim for loss of life shall be Rs.10 lakhs will be just and
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fair to be shared equally by the State of Gujarat and the Ministry of
Railways, Union of India. In case, any ex gratia payment is made to the
victim either by the State of Gujarat or Ministry of Railways, or under
any scheme of the Central Government, such amount is to be excluded
against this amount.
14 So far as injured victims receiving grievous injuries and
simple injuries are concerned, minimum Rs.3 lakhs and Rs.10,000/
respectively to be awarded by taking the above figure of Rs.10 lakhs as
basis and to be increased depending upon the percentage of disablement
sustained by them and other criteria applicable in deciding Motor
Accident Claims Petitions to be applied and compensation must be
awarded to them upon establishing their identity for which no detailed
inquiry is necessary.
15 Since the amount of compensation is determined as above,
we leave the exercise of disbursing the compensation to Gujarat State
Legal Services Authority. The authority would take into consideration
the material available on record and also by following procedure laid
down in Notification dated 02.01.2016 of the Home Department,
Sachivalaya, Gandhinagar.
PART XVI
SENTENCE
16 As held by us in preceding chapters of this judgment
whereby findings and conclusions about guilt of accused are
substantially sustained and conviction recorded and ordered by the
learned Trial Judge do not require any interference in view of
prosecution succeeding in proving its case beyond reasonable doubt for
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various offences under penal statutes for which they were charged, but
while answering Reference Case Nos.1 to 10 of 2011 referred to under
Section 28(2) of the Code, 1973 read with Section 366 pertaining to
sentence of capital punishment `to be hanged by neck till death’
submitted by the court of sessions for confirmation under Chapter XXVIII
of the Code, 1973, the powers are conferred upon the High court under
section 368 to confirm sentence or annul conviction and Section 368(a)
confers discretion upon the High Court to which case is submitted
under section 366 of the Code, 1973 to confirm the sentence or pass
any other sentence warranted by law. Accordingly, we address the
issue of awarding sentence of death upon 11 convicts referred to in
ScheduleA and ScheduleB of the operative part of the judgment of the
trial court is to be confirmed or any other sentence warranted by law to
be inflicted.
17 We have gone through the decisions relied on by the
learned counsels for the defence and the learned Special Public
Prosecutor and considered by learned trial Judge in para 99 of the
judgment dated 01.03.2011 under challenge in which submissions made
by learned Special Public Prosecutor about dastardly, diabolic,
grotesque, heinous crime committed by the accused, now convicts, and
criteria of rarest of rare cases including mitigating and nonmitigating
circumstances based on factual scenario and having regard to the
magnitude of the crime and death of 59 persons and other injured
learned trial Judge thought it fir to award capital punishment to 11
accused. We have also perused Section 354(3) of the Code, 1973 for
assigning special reasons while awarding capital punishment.
18 The Apex Court in the case of Mohd. Jamiludin Nasir
[supra] was considering the charge of Sections 121, 121A and 122 read
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with Section 120B and Section 302, etc of IPC where in the attack of
American Centre, Calcutta wherein 5 policemen were killed and 13
policemen and several civilians were injured. The above judgment is
referred to in VolumeII of the judgment in the context of Section 164 of
the Code, 1973 and also for appreciation of evidence and Sections 10
and 30 of the evidence Act. We are inclined to refer to para 170 of the
judgment which contain question of sentence considered by the Apex
Court in which the case of Ramnaresh v. State of Chhatisgarh [(2012)4
SCC 257] is considered, which read as under:
“170 A decision of this Court of recent times on the question of
sentence is reported in Ramnaresh and others v. State of
Chhattisgarh (2012) 4 SCC 257 : (AIR 2012 SC 1357). The
principles laid down therein have been summarized as under in
paragraphs 77 and 78 : (SCC pp. 28687)“77. While determining the questions relatable to
sentencing policy, the Court has to follow certain
principles and those principles are the loadstar besides
the above considerations in imposition or otherwise of
the death sentence. Principles;
[1] The Court has to apply the test to determine, if it
was the “rarest of rare” case for imposition of a death
sentence.
[2] In the opinion of the Court, imposition of any other
punishment i.e. life imprisonment would be completely
inadequate and would not meet the ends of justice.
[3] Life imprisonment is the rule and death sentence is
an exception.
[4] The option to impose sentence of imprisonment for
life cannot be cautiously exercised having regard to the
nature and circumstances of the crime and all relevant
considerations.
[5] The method (planned or otherwise) and the
manner (extent of brutality and inhumanity, etc.) in
which the crime was committed and the circumstances
leading to commission of such heinous crime.
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78……It is difficult to state it as an absolute rule. Every
case has to be decided on its own merits. The judicial
pronouncements, can only state the precepts that may
govern the exercise of judicial discretion to a limited
extent. Justice may be done on the facts of each case.
These are the factors which the Court may consider in its
endeavour to do complete justice between the parties.”
171 One other recent decision on imposition of death penalty is
reported in State of Maharashtra v. Goraksha Ambaji Adsul (2011) 7
SCC 437 : (AIR 2011 SC 2689). Paragraph 33 is relevant which reads
as under:
“33. The Constitution Bench Judgment of this Court in Bachan
Singh (AIR 1980 SC 898) has been summarised in para 38 in
Machhi Singh v. State of Punjab (AIR 1983 SC 957) and the
following guidelines have been stated while considering the
possibility of awarding sentence of death: (Machhi Singh case,
SCC p. 489)“[i] The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
[ii] Before opting for the death penalty the
circumstances of the ‘offender’ also requires to be
taken into consideration along with the
circumstances of the ‘crime’.
[iii] Life imprisonment is the rule and death
sentence is an exception.? death sentence must be
imposed only when life imprisonment appears to
be an altogether inadequate punishment having
regard to the relevant circumstances of the crime,
and provided, and only provided the option to
impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
[iv] A balance sheet of aggravating and
mitigating circumstances has to be drawn up and
in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to
be struck between the aggravating and the
mitigating circumstances before the option is
exercised.”
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172 On the question of sentence, we can make useful reference to
recent decision of this Court in Sanjay Kumar (AIR 2013 SC (Cri)
267) (supra) wherein after referring to the earlier decisions reported
in Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767 :
(AIR 2008 SC 3040), Rameshbhai Chandubhai Rathod v. State of
Gujarat (2011) 2 SCC 764 : (AIR 2011 SC 803) and Brajendrasingh v.
State of Madhya Pradesh (2012) 4 SCC 289 : (AIR 2012 SC 1552),
observed as under paragraph 24:
“24. In view of the above, we reach the inescapable conclusion
that the submissions advanced by the learned counsel for the
State are unfounded. The aforesaid Judgments make it crystal
clear that this Court has merely found out the via media,
where considering the facts and circumstances of a particular
case, by way of which it has come to the conclusion that it was
not the “rarest of rare cases”, warranting death penalty, but a
sentence of 14 years or 20 years, as referred to in the
guidelines laid down by the States would be totally
inadequate. The life imprisonment cannot be equivalent to
imprisonment for 14 years or 20 years, rather it always meant
as the whole natural life. This Court has always clarified that
the punishment so awarded would be subject to any order
passed in exercise of the clemency powers of the President of
India or the Governor of the State, as the case may be.
Pardons, reprieves and remissions are granted in exercise of
prerogative power. There is no scope of judicial review of such
orders except on very limited grounds, for example, non
application of mind while passing the order; nonconsideration
of relevant material; or if the order suffers from arbitrariness.
The power to grant pardons and to commute sentences is
coupled with a duty to exercise the same fairly and
reasonably. Administration of justice cannot be perverted by
executive or political pressure. Of course, adoption of uniform
standards may not be possible while exercising the power of
pardon. Thus, such orders do not interfere with the sovereign
power of the State. More so, not being in contravention of any
statutory or constitutional provision, the orders, even if treated
to have been passed under Article 142 of the Constitution do
not deserve to be labelled as unwarranted. The aforesaid
orders have been passed considering the gravity of the
offences in those cases that the accused would not be entitled
to be considered for premature release under the guidelines
issued for that purpose i.e. under the Jail Manual, etc. or even
under Section 433A, Cr PC.”
173 Sentencing is a delicate task requiring an
interdisciplinary approach and calls for special skills and
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talents. A proper sentence is the amalgam of many factors, such
as, the nature of offence, circumstances extenuating or
aggravating of the offence, prior criminal record of the
offender, age and background of the offender with reference to
education, home life, sobriety, social adjustment, emotional and
mental condition, the prospects for his rehabilitation etc. The
above passage can be found in Ratanlal and Dhirajlal’s Law of
Crimes, 26th Edition at page 185 on the topic ‘Of Punishments’.
174 We also keep in mind that under Section 121 for the offence of
waging or attempting to wage war or abetting waging of war against
the Government of India, the punishment provided is with death or
imprisonment for life and also liable to imposition of fine. We have
also noted that under Section 354(3) of Cr.P.C., when the conviction
is for an offence punishable with death or in the alternative with
imprisonment for life or imprisonment for term of years, the
Judgment should state the reasons for the sentence awarded and in
the case of sentence of death the special reasons for awarding such
sentence.
175 Having noted the above decisions on the question of sentence
we formulate the following fundamental principles to be borne in
mind while dealing with the sentence to be imposed in respect of
crimes committed of such grotesque nature:
175.1 The sentence to be awarded should achieve twin objectives
[a] Deterrence
[b] Correction175.2 The Court should consider social interest and consciousness of
the society for awarding appropriate punishment.
175.3 Seriousness of the crime and the criminal history of the
accused is yet another factor.
175.4 Graver the offence longer the criminal record should result
severity in the punishment.
175.5 Undue sympathy to impose inadequate sentence would do
more harm to the public.
175.6 Imposition of inadequate sentence would undermine the
public confidence in the efficacy of law and society cannot endure
such threats.
176 In cases of this nature where charges under Sections 121, 122,
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121A read with 120B, IPC as well as 302, IPC are involved, other
principles should also be kept in mind, namely:
176.1 Most important factor should be the intention and purpose
behind the waging of war against the State should be ascertained.
176.2 The modus operandi adopted which involved mobilization of
men materials such as arms and ammunitions indulging in serious
conspiracy over a period of time are another relevant factor.
176.3 It will not depend upon the number of persons even limited
persons can indulge in more harmful crime than large crowd of
persons could do.
176.4 There need not be pomp and pageantry like a battle field.
176.5 Not all violent behaviour would fall within the prescription of
waging war as stipulated under Sections 121, 121A, 122 read with
120B.
176.6 The object sought to be achieved should be directed against
the sovereignty of the State and not merely commission of crime even
if it is of higher velocity.
176.7 The concept of ‘waging war’ should not be stretched too far.
176.8 A balanced and realistic approach should be maintained while
construing the offence committed and find out whether it would
amount to waging of war against the State.
176.9 Mere organized movement with violence without any
intention of acting against the interest of the nation has to be
examined.
176.10 Neither the number engaged nor the power employed nor the
arms used can be the criteria.
176.11 It should be seen as to what is the purpose behind the
choosing of a target of attack.
176.12 When a planned operation is executed, what was the extent of
disaster resulted, is to be seen.
176.13 It is to be seen whether it is a mere desperate act of a small
group of persons who indulged in the crime.
176.14 It must be seen whether the undoubted objective and
determination of the offender was it to impinge on the sovereignty of
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the nation.
176.15 In this context the expansive definition of Government
of India should be understood”.
19 No doubt, the learned trial judge has refereed to the cases
of Bachan Singh [supra] and Machhi Singh [supra] and principles laid
down therein also find place in Mohmmad Nasir [supra] along with
other decisions.
20 In addition to the law of awarding capital sentence as laid
down by the Apex Court in the cases of Bachan Singh [supra] and
Machhi Singh [supra], we have considered various other judgments and
deliberated on the subject to which reference is also made in the Report
No.262 of Law Commission of India on death penalty of Accused, 2015
and to avoid repetition, we do not enumerate the same.
21 We have come across consultation paper of capital
punishment published by the Government of India, Law Commission of
India of May, 2014 whereby Law Commission of India invited
suggestions and representations so as to provide inputs to study the issue
of capital punishment by issuing a questionnaire of capital punishment
so that timely and much needed public debate on this issue involving a
wider community of concerned citizens could elicit their views. After
receiving such suggestions, representations and views, a report No.262
was submitted on the death penalty in August, 2015. We would like to
reproduce `summary’ of the report prepared by us along with
conclusions, which examined cases decided by the Apex Court in which
death sentence so awarded, which read as under:
REPORT NO.262
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THE DEATH PENALTY
AUGUST, 2015
22 In the context of decision in the case of Shankar Kisanrao
Khade v. State of Maharashtra, [(2013)5 SCC 546], while dealing with
an appeal on the issue of death sentence, the Apex Court called for the
intervention of the Law Commission of India on two issues, which read
as under:
“It seems to me that though the courts have been applying the
rarest of rare principle, the executive has taken into
consideration some factors not known to the courts for
converting a death sentence to imprisonment for life. It is
imperative, in this regard, since we are dealing with the lives
of people (both the accused and the rapemurder victim) that
the courts lay down a jurisprudential basis for awarding the
death penalty and when the alternative is unquestionably
foreclosed so that the prevailing uncertainty is avoided. Death
penalty and its execution should not become a matter of
uncertainty nor should converting a death sentence into
imprisonment for life become a matter of chance. Perhaps the
Law Commission of India can resolve the issue by examining
whether death penalty is a deterrent punishment or is
retributive justice or serves an incapacitative goal, Shankar
Kishanrao Khade v. State of Maharashtra [2013]5 SCC 546, at
para 148. (Emphasis supplied)It does prima facie appear that two important organs of the
State, that is, the judiciary and the executive are treating the
life of convicts convicted of an offence punishable with death
with different standards. While the standard applied by the
judiciary is that of the rarest of rare principle (however
subjective or Judgecentric it may be in its application), the
standard applied by the executive in granting commutation is
not known. Therefore, it could happen (and might well have
happened) that in a given case the Sessions Judge, the High
Court and the Supreme Court are unanimous in their view in
awarding the death penalty to a convict, any other option
being unquestionably foreclosed, but the executive has taken a
diametrically opposite opinion and has commuted the death
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Commission of India, Shankar Kishanrao Khade v. State of
Maharashtra [2013]5 SCC 546, at para 112 (Emphasis
supplied)”
22.1 Accordingly, the Law Commission of India [`the
Commission’] addressed the above Reference on the death penalty.
Earlier, emphasis of the Apex Court on importance of credible research
on the subject was noticed in Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra, [2009]6 SCC 498.
22.2 That previous reports of the Commission viz. The 35 th
Report on Capital Punishment [1967] and The 187th Report on the
Mode of Execution [2003] were also considered. As per The 35th Report
of the Commission, opinion was rendered that capital punishment should
be retained in the present state of the country and The 187th Report was
only on the Mode of Execution. The Commission in the Report No.262
further considered various data prevailing at the time of submitting The
35th Report and in the year 201112 available on education, general well
being and social and economic conditions based on net national income
at constant prices, adult literacy, life expectancy, etc. and reports of
National Crime Records Bureau and data available on decline in the
murder rate has coincided with a corresponding decline in the rate of
executions. In the light of Section 354(3) of the new code being Code of
Criminal Procedure, 1973 which managed the Code to assign `special
reasons’ to be given when the death sentence is imposed for an offence
where the punishment could be life imprisonment or death. That in the
case of Bachan Singh v. State of Punjab, [(1980)2 SCC 684], the above
Scheme came to be interpreted by the Apex Court and it would mean
that normal sentence for murder should be imprisonment for life, and
that only in the rarest of rare cases should the death penalty be imposed.
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22.3 By noticing the emergence of constitutional dueprocess
standards, post1967, and interpretation of Article 21 of the Constitution
of India reading into the right to dignity and substantive and due
process after decision in the case of Maneka Gandhi vs. Union of India
[(1978)1 SCC 248] that the procedure prescribed by law has to be as
per just and reasonable, not fanciful, oppressive or arbitrary. Further,
even in the case of Bachan Singh [supra], the Apex Court observed that
Section 354(3) of the Code, 1973 is part of the due process framework
on the death penalty. In this regard, the Apex Court in the case of
Bachan Singh [supra], held as under:
“There are numerous other circumstances justifying the passing
of the lighter sentence; as there are countervailing
circumstances of aggravation. We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society.
Nonetheless, it cannot be overemphasised that the scope and
concept of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the courts in
accord with the sentencing policy writ large in Section 354(3).
Judges should never be bloodthirsty. Hanging of murderers has
never been too good for them. Facts and Figures, albeit
incomplete, furnished by the Union of India, show that in the
past, courts have inflicted the extreme penalty with extreme
infrequency — a fact which attests to the caution and
compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It
is, therefore, imperative to voice the concern that courts, aided
by the broad illustrative guidelines indicated by us, will
discharge the onerous function with evermore scrupulous care
and humane concern, directed along the highroad of legislative
policy outlined in Section 354(3) viz. that for persons
convicted of murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern for the
dignity of human life postulates resistance to taking a life
through law’s instrumentality. That ought not to be done save
in the rarest of rare cases when the alternative option is
unquestionably foreclosed. [Bachan Singh v. State of Punjab,Page 967 of 988
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(1980)2 SCC 684 para 209.”
(Emphasis supplied)
22.4 Thus, according to the Commission, the `rarest of rare’
standard has at its core the conception of the death penalty as a
sentence that is unique in its absolute denunciation of life. The
punishment is completely irrevocable and alternative option is
unquestionably foreclosed.
22.5 Again the Commission also noticed judicial developments
on the arbitrary and subjective application of the death penalty and
various grounds in the country applied the rarest of rare dictum
pronounced in Bachan Singh [supra] has been inconsistently applied.
In the above context, the Commission examined the following decisions:
[1] Aloke Nath Dutta v. State of West Bengal, [2007)12 SCC 230.
[2] Swamy Shraddhananda v. State of Karnataka (‘Swamy
Shraddhananda’), [2008]13 SCC 767.
[3] Farooq Abdul Gafur v. State of Maharashtra (‘Gafur’), [2010]14
SCC 641.
[4] Sangeet v. State of Haryana (‘Sangeet‘), [2013] 2 SCC 546.
[5] Shankar Kisanrao Khade v. State of Maharashtra, [(2013)5 SCC
546]22.6 According to the Commission, the Apex Court noticed the
subjective and arbitrary application of the death penalty has led
“principled sentencing” to become “judgecentric sentencing” [Sangeet v.
State of Haryana, (2013)2 SCC 452], based on the “personal
predilection of the judges constituting the Bench”.
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22.7 The commission further prefaced history of the death
penalty in India and debates between 1947 and 1949 in the constituent
assembly on the death penalty. The Commission even noted opinion of
Dr. Babasaheb Ambedkar in favour of abolition of death penalty. The
legislative history on the subject during preindependence era and when
first challenge to the constitutionality of the death penalty in India came
to be decided in the case of Jagmohan Singh v. State of U.P. [(1973)1
SCC 20] upon challenge that the death penalty violated Articles 14, 19
and 21 of the Constitution of India, in which the decision of the US
Supreme Court in Furman v. Georgia was considered in which the death
penalty was declared to be unconstitutional as being cruel and unusual
punishment. The above case was decided before the Code of Criminal
Procedure was reenacted in 1973. In the above case, the Apex Court
found that the death penalty was permissible punishment and did not
violate the Constitution. By referring to the case of Rajendra Prasad v.
State of Uttar Pradesh, [(1979)3 SCC 646], in which the Apex Court
discussed what are, “special reasons necessary for imposing death
penalty must relate, not to the crime as such but to the criminal”. In the
above case, the Apex Court held as under:
“the retributive theory has had its day and is no longer valid.
Deterrence and reformation are the primary social goals which
make deprivation of life and liberty reasonable as penal
panacea [Rajendra Prasad v. State of Uttar Pradesh, [(1979)3
SCC 646]”. Significantly, voicing concerns that have begun to
reemerge, the court asked: “Who, by and large, are the men
whom the gallows swallow?”83 and found that, with a few
exceptions, it was “the feuding villager … the striking workers
… the political dissenter … the waifs and strays whom society
has hardened by neglect into street toughs, or the poor
householderhusband or wife driven by necessity of burst of
tantrums” [Rajendra Prasad v. State of Uttar Pradesh,
[(1979)3 SCC 646] who were visited with the extreme
penalty”.
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22.8 The Commission also noted various other decisions of the
Apex Court in which observations were made by the Apex Court that
sentencing in capital cases has become arbitrary and that the sentencing
law of Bachan Singh [supra] has been interpreted in varied ways by
different Benches of the Court.
22.9 In the case of Mithu v. State of Punjab [(1983)2 SCC 277],
the Apex Court was concerned with mandatory sentence of death under
Section 303 of the IPC and it was held to be unconstitutional. Even
challenge to the execution by handing in the case of Deenu v. Union of
India [(1983)4 SCC 645], the Apex Court found that prisoner / convict
cannot be subjected to barbarity, humiliation, torture or degradation
before the execution of the sentence.
22.10 That delay and the death penalty was also examined by
referring to various decisions and also Constitution Bench decision in the
case of Triveniben v. State of Gujarat [(1989)1 SCC 678] in which the
Apex Court held that only executive delay and not judicial delay may be
considered as relevant in an Article 21 challenge. The court held that no
fixed period of delay could be held to make the sentence of death
inexecutable. The above view was reaffirmed in the case of Shatrughan
Chauhan v. Union of India [(2014)3 SCC1]. Again while upholding the
constitutionality of Section 364A of the IPC, which allows for the
imposition of the death sentence in cases of kidnapping with ransom, in
the case of Vikram Singh @Vicky & Anr. v. Union of India & Ors.,
Criminal Appeal No.824 of 2013, decided on 21.08.2015. After
acknowledging that punishment must be proportionate to the nature and
gravity of the offences for which the same are prescribed, it was held
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that Section 364A cannot be dubbed as so outrageously disproportionate
to the nature of the offence as to call for the same being declared
unconstitutional.
22.11 The Commission also considered laws on the death penalty
in India, capital offences in IPC, capital offences in other laws and even
bills proposing abolition of the death penalty pending in the Rajya
Sabha.
22.12 International trends in various countries came to be noticed
and found that in 140 countries in the world, death penalty is not in the
statute book. The Commission also noticed purposes to be served by
death penalty viz. deterrent punishment or is retributive justice or serves
an incapacitative goal so noticed by The 35th Report of Law Commission
and various research made by authors viz. John Donohue and Justin
Wolfers in their book Uses and Abuses of Empirical Evidence in the
Death Penalty Debate. Other decisions of the Apex Court on the theory
of retribution and need for police reforms.
22.13 Retributive theory / justice and decision in the case of
Prakash Singh v. Union of India, [(2006)8 SCC 1] and need for
implementation of the Apex Court in the case of Prakash Singh [supra].
22.14 In ChapterV under the head of Sentencing in Capital
Offences, again the Commission referred to cases of Bachan Singh
[supra] and other decisions. Subsequently, though guidelines in the case
of Bachan Singh [supra] were to lay a road map to minimize the risk of
arbitrary imposition of death penalty. In the case of Machhi Singh v.
State of Punjab, (1983) 3 SCC 470, the Apex Court listed out the
following five categories of cases which the death penalty was a suitable
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option.
“I Manner of Commission of Murder: When the murder is
committed in an extremely brutal, grotesque, diabolical.
revolting, or dastardly manner so as to arouse intense
and extreme indignation of the community. For
instance, [i] When the house of the victim is set aflame
with the end in view to roast him alive in the house. [ii]
When the victim is subjected to inhuman acts of torture
or cruelty in order to bring about his or her death. [iii]
When the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
II Motive for Commission of murder: When the murder is
committed for a motive which evince total depravity and
meanness. For instance when (a) a hired assassin
commits murder for the sake of money or reward (2) a
cold blooded murder is committed with a deliberate
design in order to inherit property or to gain control
over property of a ward or a person under the control of
the murderer or visavis whom the murderer is in a
dominating position or in a position of trust. (c) a
murder is committed in the course for betrayal of the
motherland.
III Anti Social or Socially abhorrent nature of the crime: (a)
When murder of a Scheduled Caste or minority
community etc., is committed not for personal reasons
but in circumstances which arouse social wrath. For
instance when such a crime is committed in order to
terrorize such persons and frighten them into fleeing
from a place or in order to deprive them of, or make
them with a view to reverse past injustices and in order
to restore the social balance. (b) In cases of ‘bride
burning’ and what are known as ‘dowry deaths’ or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
on account of infatuation.
IV Magnitude of Crime: When the crime is enormous in
proportion. For instance when multiple murders say of
all or almost all the members of a family or a large
number of persons of a particular caste, community, or
locality, are committed.
V Personality of Victim of murder: When the victim of
murder is (a) an innocent child who could not have orPage 972 of 988
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has not provided even an excuse, much less a
provocation, for murder. (b) a helpless woman or a
person rendered helpless by old age or infirmity (c)
when the victim is a person visa vis whom the murderer
is in a position of domination or trust (d) when the
victim is a public figure generally loved and respected by
the community for the services rendered by him and the
murder is committed for political or similar reasons
other than personal reasons”.
Thus, Bachan Singh [supra] recognized that circumstances are to
the crime and criminal are often “so intertwined that it is difficult to give
a separate treatment to each of them”, the Court held that it was “not
desirable to consider circumstances of the criminal in two separate
watertight compartments”, Machhi Singh [supra] explained five
categories in detail for which the death penalty was a suitable option.
The above exercise undertaken by th Commission under the head
Doctrinal Frameworks. Further, the above five categories broadly
according to the Commission, follow in many cases subsequently which
suggest that once a case calls within any of the five categories it becomes
a rarest of rare case deserving the death penalty. Once again, Santosh
Kumar Satishbhushan Bariyar [supra] was noticed in which it was held
that the exclusive focus in the case of Ravji alias Ram Chandra v. State
of Rajasthan, (1996) 2 SCC 175, on the crime, rendered the decision per
incurium Bachan Singh [supra]. In Santosh Kumar Satishbhushan
Bariyar [supra] case, the Apex Court listed a further six cases where case
of Ravji [supra] was followed.
22.15 That according to the Commission, the focus in many such
cases based on Ravji [supra] was `crime centric’.
22.16 That further category of Shock to the Collective
Conscience and Society’s Cry for Justice was examined on different
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phrases that `Collective Conscience’, `Society Cry’ and `Public
Abhorrence’ which weighed and played an important role in
sentencing jurisprudence since Santosh Kumar Satishbhushan
Bariyar [supra] questioned the relevance and desirability of factoring
in such `public opinion’ into rarest of rare analysis inasmuch as firstly
it is difficult to precisely define what is `public opinion’ on a given
matter actually is. Further, people’s perception of crime is “neither
an objective circumstances relating to crime nor to the criminal” and
the courts are governed by the constitutional safeguards that
introduce values of institutional propriety, in terms of fairness,
unreasonableness and equal treatment challenge with respect to
procedure to be invoked by the state in its dealings with people in
various capacities, including as a convict.
22.17 According to the Commission different Judges have
understood the requirements of rarest of rare standards differently,
resulting in a disparate and “judgecentric” determination of whether
or not a case falls within the rarest of rare category. The Commission
has found the triple test analysis i.e. crime test, criminal test and
rarest of rare test limits the possibility of imposition of death penalty
to that very narrow category of cases in which there are no mitigating
circumstances whatsoever.
22.18 Under the head of factors to be considered either for
aggravating or mitigating, the Commission noticed case of State of U.P.
v. Satish, (2005) 3 SCC 114 where accused was convicted for
committing rape and murder of a minor, the Court found the case was
covered under the category of rarest of rare case and death sentence
awarded by the trial court was appropriate. In the above judgment, no
discussion was made about aggravating and mitigating circumstances.
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The Commission also addressed to various mitigating entries including
age of the accused and young age of the accused was either not
considered or was deemed irrelevant in many cases. Even nature of the
offence was also aggravating factor. In case of Sushil Murmu v. State
of Jharkhand, (2004) 2 SCC 338 in which the accused were convicted
for murdering three children as human sacrifice and that was treated as
rarest of rare case in which death sentence was imposed and
superstitious motivation are not considered as mitigating factors and
death sentence in such case should be the rule with no exception
whatsoever, according to the Apex Court. Then, prior criminal record of
the offender as an aggravating factor various decisions were considered
and the possibility of reform of the convict and decisions were
considered and in a given case requirement of addressing the issue that
the accused would be a menace to the society and there is no possibility
of reformation and rehabilitation.
22.19 The Commission examined all these five categories and
also rules of prudence in the case of Mohd. Farooq Abdul Gafur v.
State of Maharashtra, (2010) 14 SCC 641, in a case of circumstantial
evidence and conviction is based only upon such circumstantial
evidence, the Apex Court in many cases cautioned that the penalty
should ordinarily be avoided.
22.20 Under the `Rules of Prudence’, the Commission cautioned
that cases based on circumstantial evidence, disagreement on guilt and
sentence between the judges, it is prudent to avoid imposing the death
penalty. That the Commission noted the cases of Krishna Mochi v. State
of Bihar, (2002) 6 SCC 81 and Santosh Kumar Singh v. State, (2010) 9
SCC 747 and other cases.
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22.21 Upon scrutiny of imperial data on the imposition of the
death penalty, the Commission considered data presented at the
National Consolidation and also Data gathered by the National Crimes
Record Bureau on death sentences, it was found that 1677 death
sentences were imposed by Indian courts during the period from 2000 to
2012. That during the period 2004 to 2012 convictions were recorded
by courts in India in 180439 cases involving murder and in the same
period, the death sentence was imposed in 1178 cases, i.e., in 0.65% of
the cases involving murder convictions.
22.22 The Commission considered the case of Swamy
Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767. The
Commission further analyzed “judge centric” Death Penalty
Jurisprudence, Geographical Variations in imposing death penalties in
various courts. The Commission also examined fallibility of the
Criminal Justice System and the Death Penalty in the context of
dissenting note of Bhagwati, J. in Bachan Singh case that death penalty
is irrevocable and that it cannot be recalled.
22.23 The Commission also considered list of at least 16 cases
decided by the Apex Court in which convicts were imposed death
sentences in later decisions in the cases of Shankar Kisanrao Khade
[supra], Santosh Kumar Satishbhushan Bariyar [supra], etc. The
Commission deliberated on the method of investigation, prosecution
witnesses and and mercy jurisdiction with the President of India and
Governor of the States and aspect of decreed in deciding mercy
petitions from time to time and effect of such decree of execution of
the victim of the death penalty and the decisions rendered by the
Apex court in this regard viz. delay in deciding execution petition by
the authority, as violative of Article 21 of the Constitution of India.
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Table 5.1: List of Cases Doubted in Bariyar,Sangeet, Khade
Sr. Case No. of Imposition of
No. persons Death
given the Penalty
death expressly*
sentence held
erroneous in
1 Ravji alias Ram Chandra v. State of 1 Bariyar
Rajasthan, (1996) 2 SCC 175
2 Shivaji v. State of Maharashtra, AIR 2009 1 Bariyar
SC 56
3 Mohan Anna Chavan v. State of 1 Bariyar
Maharashtra, (2008) 11 SCC 113
4 Bantu v. State of UP, (2008) 11 SCC 113 1 Bariyar
5 Dayanidhi Bisoi v. State of Orissa, (2003) 9 1 Bariyar
SCC 310
6 Surja Ram v. State of Rajasthan, (1996) 6 1 Bariyar
SCC 271
7 State of UP v. Sattan, (2009) 4 SCC 736 4 Bariyar
8 Saibanna v. State of Karnataka, (2005) 4 1 Bariyar
SCC 165
9 Shivu v. Registrar General, High Court of 2 Sangeet
Karnataka, (2007) 4 SCC 713
10 Rajendra Pralhadrao Wasnik v. State of 1 Sangeet
Maharashtra, (2012) 4 SCC 37
11 Mohd. Mannan v. State of Bihar, (2011) 5 1 Sangeet
SCC 317
12 B.A. Umesh v. Registrar General, High 1 Sangeet
Court of Karnataka, (2011) 3 SCC 85
13 Sushil Murmu v. State of Jharkhand, (2004) 1 Sangeet
2 SCC 338
14 Gurmukh Singh v. State of Haryana, (2009) 1 Shankar
15 SCC 635 Khade
15 Dhananjoy Chatterjee v. State of West 1 Shankar
Bengal, (1994) 2 SCC 220 Khade
16 Kamta Tiwari v. State of M.P., (1996) 6 1 Shankar
SCC 250 Khade
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*In many of these cases the Court has pointed out inconsistencies in
the application of aggravating and mitigating circumstances. In a
judicial system premised on stare decisis, especially in the context of
the Court in Bachan Singh clearly mandating that sentencing
discretion has to be exercised in light of precedent, these
inconsistencies render many such cases per incuriam as well.
However, since the Supreme Court has not expressly acknowledged
that these cases are per incuriam, they have not been added to the
list. See especially, Sangeet and Khade.
22.24 The constitutionality of the death penalty has to be
evaluated in light of the foregoing discussions on its stated justifications,
as well as the concerns raised above. As the Supreme Court cautioned
in Bariyar,
[The] right to life is the most fundamental of all rights.
Consequently a punishment which aims at taking away life
is the gravest punishment. Capital punishment imposes a
limitation on the essential content of the fundamental right
to life, eliminating it irretrievably. We realize the absolute
nature of this right, in the sense that it is a source of all
other rights. Other rights may be limited, and may even be
withdrawn and then granted again, but their ultimate limit
is to be found in the preservation of the right to life. Right
to life is the essential content of all rights under the
Constitution. If life is taken away all, other rights cease to
exist.
22.25 In view of extent to intrusion of capital punishment into the
right to life and the irrevocability of the punishment in the case of
Bachan Singh [supra], the Apex Court emphasised as under:
“5.4.29 In light of the degree of intrusion of capital
punishment into the right to life, and the irrevocability of the
punishment, the Supreme Court has rightly emphasized that:
[I]n the context of punishments, the protections emanating
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from Article 14 and Article 21 have to be applied in the
strictest possible terms. … In every capital sentence case, it
must be borne in mind that the threshold of rarest of rare
cases is informed by Article 14 and 21, owing to the inherent
nature of death penalty. Post Bachan Singh (supra), capital
sentencing has come into the folds of constitutional
adjudication. This is by virtue of the safeguards entrenched in
Article 14 and 21 of our constitution.
5.4.30 It is true that Bachan Singh in 1980 held that the death
penalty does not violate the Article 21 requirement on this
score.
5.4.31 The Court held that:
by no stretch of imagination can it be said that death penalty
under Section 302 of the Penal Code, either per se or because
of its execution by hanging, constitutes an unreasonable, cruel
or unusual punishment. By reason of the same constitutional
postulates, it cannot be said that the framers of the
Constitution considered death sentence for murder or the
prescribed traditional mode of its execution as a degrading
punishment which would defile “the dignity of the individual”
within the contemplation of the preamble to the Constitution.
On parity of reasoning, it cannot be said that death penalty for
the offence of murder violates the basic structure of the
Constitution.”
22.26 The Commission referred to capital punishment visavis
Articles 14 and 21 of the Constitution of India and that the death
penalty does not violate the Article 21 of the Constitution of India as
held in the case of Bachan Singh [supra] undertook to study
comparative experiences which warn against an approach that focuses
on Standardization and categorization. The Commission has taken note
of Report of the Royal Commission on Capital Punishment of United
Kingdom for recommendation for the abolition of the death penalty in
Great Britain earlier and subsequently imposition of a five year
legislative moratorium on the death penalty for murder. The South
African Constitutional Court in the case of State v. Makwanyane and
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Another, Constitutional Court of South Africa struck down the
constitutional validity of capital punishment, relying on the arbitrariness
and inequality inherent in the punishment, held as under:
“It cannot be gainsaid that poverty, race and chance play roles
in the outcome of capital cases and in the final decision as to
who should live and who should die. It is sometimes said that
this is understood by the judges, and as far as possible, taken
into account by them. But in itself this is no answer to the
complaint of arbitrariness; on the contrary, it may introduce
an additional factor of arbitrariness that would also have to be
taken into account. Some, but not all accused persons may be
acquitted because such allowances are made, and others who
are convicted, but not all, may for the same reason escape the
death sentence”
22.27 The Commission, under ChapterVI also examined clemency
powers and due process issues pertaining to the execution of death
sentence in view of reference decision in the case of Shankar Kisanrao
Khade [supra] and reverting to Articles 72 and 161 of the Constitution
of India and powers to be exercised by the President and the Governor
of the State, as the case may be, on the aid and advise of the Council of
Ministers after a judicial conviction and sentencing of an offender, the
whole record pertaining to the case is scrutinized. Further, a reference
was made to the decision in the case of Kehar Singh v. Union of India,
(1989)1 SCC 204 by a Constitution Bench and Shatrughan Chauhan v.
Union of India, (2014)3 SCC 1 in which certain rules and guidelines
were summarized by the Apex Court, which were followed by the
Ministry of Home Affairs, Government of India. Such exercise of powers
by the President under Article 72 and by the Governor under Article 161
of the Constitution of India is subject to limited form of judicial review,
including that of exercising such powers without being advised by the
Government and that the Governor / President has transgressed his
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jurisdiction, nonapplication of mind or on the basis of political
consideration and the order suffers from arbitrariness and such exercise
of power suffers from defect of extraneous or wholly irrelevant
considerations and further relevant materials have been kept outside the
consideration. The Commission also concluded the data about the
details of mercy petitions decided by the President from 1950 onwards.
22.28 After considering advisability of clemency powers of the
executives, the Commission concluded as under:
6.8.1 The executive’s mercy powers cure defects of arbitrary
and erroneous death sentences, and provide an additional
bulwark against miscarriages of justice. Therefore, cases found
unfit for mercy merit capital punishment. Mercy powers are
thus a safeguard and necessary precondition for the death
penalty.
6.8.2 When the writ courts in pursuance of judicial review
powers, on a relative routine basis, find decisions of the
executive to reject mercy petitions to be vitiated by procedural
violations, arbitrariness and nonapplication of mind, the
safeguard of mercy powers appears to not be working very
well.
6.8.3 It is also distressing to note that the death row prisoners
are routinely subjected to an extraordinary amalgam of
excruciating psychological and physical suffering arising out of
oppressive conditions of incarceration and long delays in trial,
appeal and thereafter executive clemency. Despite repeated
attempts by death row prisoners to invoke judicial review
remedies to secure commutations on account of penal
transgressions by the executive authorities, the practice of
solitary confinement and long delays seem to continue
unabated. It is the view of the Commission that the death row
phenomenon has become an unfortunate and distinctive
feature of the death penalty apparatus in India.
6.8.4 Further, infliction of additional, unwarranted and
judicially unsanctioned suffering on death sentence prisoners,
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punishment. The lingering nature of this suffering is triggered
as soon as any court sentences a prisoner to death, and
therefore extends beyond the limited number of prisoners who
come close to an execution after having lost in the Supreme
Court and in the mercy petition phase as well.
6.8.5 The capital punishment enterprise as it operates in India,
therefore perpetrates otherwise outlawed punitive practices
that inflict pain, agony and torture which is often far beyond
the maximum suffering permitted by Article 21. The
debilitating effects of this complex phenomenon imposed on
prisoners what can only be called a living death. 6.8.6 While
the illegalities pertaining to death row phenomenon in a
particular case may be addressed by the writ courts commuting
the death sentence, the illegal suffering which the convicts
have been subjected to while existing on death row casts a long
shadow on the administration of penal justice in the country”.
22.29 On overall considerations of various facets of death
penalty, following conclusions and recommendations were made by
the Commission under ChapterVIII:
“7.2.1 The Commission recommends that measures suggested
in para 7.1.3 above, which include provisions for police
reforms, witness protection scheme and victim compensation
scheme should be taken up expeditiously by the government.
7.2.2 The march of our own jurisprudence – from removing
the requirement of giving special reasons for imposing life
imprisonment instead of death in 1955; to requiring special
reasons for imposing the death penalty in 1973; to 1980 when
the death penalty was restricted by the Supreme Court to the
rarest of rare cases – shows the direction in which we have to
head. Informed also by the expanded and deepened contents
and horizons of the right to life and strengthened due process
requirements in the interactions between the state and the
individual, prevailing standards of constitutional morality and
human dignity, the Commission feels that time has come for
India to move towards abolition of the death penalty.
7.2.3 Although there is no valid penological justification for
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related offences and waging war, will affect national security.
However, given the concerns raised by the law makers, the
commission does not see any reason to wait any longer to take
the first step towards abolition of the death penalty for all
offences other than terrorism related offences.
7.2.4 The Commission accordingly recommends that the
death penalty be abolished for all crimes other than
terrorism related offences and waging war.
7.2.5 The Commission trusts that this Report will contribute to
a more rational, principled and informed debate on the
abolition of the death penalty for all crimes.
7.2.6 Further, the Commission sincerely hopes that the
movement towards absolute abolition will be swift and
irreversible”.
[emphasis supplied]
23 That reading of the report and conclusions therein, no
doubt recommend abolition of death penalty for all crimes other than
terrorism related offences and waging war against the State in par 7.2.4
of the report. We are not unmindful of the fact that the above report is a
recommendation of Law Commission of India prepared by the Chairman
to which other members have divergent views. Of course, in all
respects, we are duty bound to follow the law laid down by the Apex
Court and having regard to Section 354(3) of the Code, 1973, upon
serious deliberations on the issue of death sentence awarded by the trial
court to convicts in reference cases to be confirmed or to be annulled or
commuted by any other sentence, we are of the opinion that the cases on
hand have no genesis in the act of terrorism or waging war against the
State. That earlier, opinion of Review Committee constituted under
POTA was challenged before this Court by the State of Gujarat, which
came to be rejected and against which SLP (Cri.) No.1444 of 2009 is
filed before the Apex Court and it is pending. That cumulative and
qualitative analysis of evidence surfacing on record, oral as well as
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documentary though prove case of prosecution beyond reasonable doubt
so as to sustain the conviction under Section 302 of the IPC qua convicts
of death sentence, but it falls short of requirement to award death
sentence. Intention to commit crime by hatching the conspiracy acting in
furtherance of common object thereof, executing the same for which
serious consequences of that crime may not have been intended or
contemplated by the conspirators as such may not be a consideration
while upholding conviction, but the sentence is to be awarded by
considering facts and circumstances emerging on record of each case on
its own merit.
24 Diverse views qua capital punishment are discernible from
the judicial pronouncements abovereferred, including The Report
No.262 of Law Commission. Death penalties eliminates a person to a
point of no return. While considering the question of sentence to death,
a duty is cast upon the court to deliberate on various facets of sentence
and to immunize itself to avoid branding imposition of death sentence as
`judge centric’ or `blood thirsty’, the court is required to closely
scrutinize the evidence with an endeavour to find out the evidence
justifying death penalty. A thought occurs in our mind that criteria of a
proof beyond reasonable doubt is must to prove guilt of the accused by
the prosecution, but in a case of imposition of death penalty, a degree
higher than the above viz. Proof beyond any doubt is to be followed so
as to rule out any error in concluding about guilt of the accused. In
other words, in cases seeking death penalty, the entire evidence must be
of sterling quality. That imposition of sentence is not an arithmetic
calculation qua number of victims and accused to be punished.
25 Considering judicial pronouncements for imposition of
death penalty, reverting to the facts of the case, we could notice at least
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two circumstances not justifying the capital punishment being: (I) over
crowdedness of the coach; (ii) more than 100 people could disembarked
the train in offside safely. Though the material evidences, a group
some part of the coaccused and the conspirator, it appears that over
crowdedness in the coach contributed to the enhancement of number of
casualties which, in our judgment, might have been far far low in
absence of the coach being overcrowded with double the official
capacity of the passengers and the luggage. Furthermore, though the
accused had ignited the coach on its onside, about more than 100
people could escape to the offside suggesting that the accused had the
intention to cause death and maximum damage, they did not intend to
enhance the number of casualties. Besides, qualitative analysis of the
entire evidence though sufficient enough to sustain conviction, do not
justify awarding sentence of death and, therefore, we are of the opinion
that the death penalty is not warranted in the facts and circumstances of
the case by imposing an alternative sentence of rigorous imprisonment
for life, all these references are answered accordingly.
26 In view of the above, in exercise of powers under Section 366
read with Section 368(1)(a) of the Code, 1973, Confirmation Case Nos.1
to 10 of 2011 are answered and disposed of by commuting death sentence
/ capital sentence `to be hanged by neck till death’ to rigorous
imprisonment for life in case of each of the convicts referred to in
ScheduleA for which sentence / punishment is inflicted of death for
conviction under Section 302 read with Sections 120B, 149 of the IPC in
ScheduleB of the impugned judgment dated 01.03.2011 rendered by the
trial court in Sessions Case Nos.69 of 2009 to 86 of 2009 and Sessions
Case No.204 of 2009.
26.1 Barring the above, conviction recorded by learned trial Judge
under Section 302 read with Sections 120B, 149 and other offences of the
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IPC qua 11 convicts of ScheduleA of the impugned judgment dated
01.03.2011 for which reference cases are referred is sustained.
Accordingly, Confirmation Case Nos.1 to 10 of 2011 are hereby answered
to the extent of commuting the death sentence to rigorous life sentence of
convicts of ScheduleA of the operative order of the impugned judgment.
That convicting and sentencing them in ScheduleB for offences other
than Sections 302, 120B, 149 of the IPC and other penal statutes viz.
Indian Railways Act and Damage to the Property Act stand confirmed and
remain unaltered.
26.2 So far as Criminal Appeal Nos.557 of 11 [8 convicts],
Criminal Appeal Nos. 585, 586 and 587 of 2011 filed u/S.374 of the Code,
973 by 11 death convicts of ScheduleA and sentenced for the offences
under ScheduleB respectively are partly allowed to the extent of
commuting death sentence to rigorous life imprisonment by sustaining
conviction under Section 302 read with Sections 120B, 149 and other
offences of the IPC, and other offences of The Indian Railway Act, The
Damage to Property Act.
26.3 So far as Criminal Appeal Nos.556 [9 convicts], 590 [2
convicts], 591, 592, 593, 628 and 629 [5 convicts] of 2011 filed u/s. 374
of Code, 1973 by 20 convicts at ScheduleC for the offences under
Sections 302, 120B, 149 and other offences of the IPC and and Indian
Railway Act, Damage to Property Act and sentencing them to rigorous
imprisonment for life and other sentences, fine, etc. are hereby dismissed
by sustaining their respective conviction as well as sentence imposed by
the trial court at ScheduleD.
26.4 Criminal Appeal No.743 of 2011 filed under Section 378 of
the Code, 1973 by the State of Gujarat against the acquittal of accused is
hereby dismissed.
26.5 Criminal Appeal No.744 of 2011 filed by the State under
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Section 377 of Code, 1973 for enhancement of sentence is hereby
dismissed.
26.6 Criminal Appeal Nos.713, 717, 718, 727, 728, 729, 732, 733,
798, 831 of 2011 filed u/s. 372 of the Code, 1973 by the victims are partly
allowed to the extent of awarding compensation as ordered in Part XV of
this judgment and prayer to set aside the judgment of acquittal of the
accused or convicting them for higher offences is rejected.
26.7 In view of the above, Criminal Misc. Application No.11376 in
Criminal Misc. Application No.17914 of 2011 in Criminal Appeal No.586
of 2011, CR.MA 11629 of 2014 in Criminal Appeal No.713 of 2011 and
temporary bail applications being Criminal Misc. Application Nos.3101,
2168, 1665 and 4143 of 2015 in Criminal Appeal Nos.556, 590, 629 and
743 of 2011 are hereby rejected.
26.8 The amount of compensation, as ordered above, be deposited
within a period of 6 weeks from the receipt of this judgment and the
compensation amount be paid to the legal heirs of the victims within a period of
6 weeks thereafter by the Gujarat State Legal Services Authority or the District
Legal Authority, as the case may be. The Registry is directed to forthwith inform
about the same to the Secretary, Home Department, State of Gujarat and
Secretary, Ministry of Railways, Union of India. Learned Special Public
Prosecutor and learned counsel for the SIT shall also inform the respective
authorities in this regard.
27 Before parting, we record our sense of gratitude towards learned
Special Public Prosecutors appearing for the State of Gujarat, SIT and learned
counsels for the defence as well as victims in rendering their valuable assistance
during hearing of all these cases and their dignified conduct befitting to their
vast knowledge, experience and approach to the court was par excellence.
(ANANT S.DAVE, J.)
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(G.R.UDHWANI, J.)
At this stage, Mr. Somnath Vatsa, learned counsel states that A29 & A50
of SC No.69/09 [Cri. Appeal No.629/11] and A40 of SC No.69/09 [Cri. Appeal
No.628/11] are on bail pursuant to orders passed by this Court and Apex Court
respectively and prays 8 weeks time to surrender to the jail authority.
Considering the facts of the case, the prayer is granted qua A29, A50 and A40
or any other convict, who is on bail.
(ANANT S.DAVE, J.)
(G.R.UDHWANI, J.)
pvv
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