Sardarpura Judgement

4
COMMUNALISM COMBAT
DECEMBER 2011
COVER STORY

COMMUNALISM COMBAT
DECEMBER 2011
5
COVER STORY
CHARGE
 Forthe offence punishable under Section 143, IPC.
 FortheoffencepunishableunderSection144,148,IPC.
 For the offence punishable under Section 302 read
withSection149,inalternateSection302,IPC.
 For the offence punishable under Section 307 read
withSection149,inalternateSection307,IPC.
 FortheoffencepunishableunderSection323,324,325
readwithSection149,inalternateSection323,324,325,IPC.
For theoffence punishable under
Section395,397,IPC.
 Forthe offence punishable under
Section396,IPC.
Section 435, 436 read with Section
149,inalternateSection435,436,IPC.
Section 295A,153A, 297, IPC.
 For the offence punishableunder Section120B, IPC.
 For the offence punishable under Section 135, Bom-
bayPoliceAct.
COMMON JUDGEMENT
1. Sessions case No. 275/2002, 120/2008 and 7/2009
ariseoutofoneincidentbearingICRNo.46/2002ofVijapur
policestationofMehsanadistrictcommittedbeforethiscourt
fortrial.Itappeareddesirabletotryalltheabove three
sessionscasestogethertherefore all thethree caseswere
ordered to beconsolidated andtriedtogetherasper order
passed… on 12.06.2009 and therefore all the proceedings
areorderedtobecarriedinsessions caseNo. 275/2002be-
ing the main sessions. Moreover, a charge sheet against
ArvindbhaiKashiramPatelwas presentedbytheprosecution
on 18.05.2010, which was committed
to the present court on 04.06.2010 by
the judicialmagistrate, first class,
Vijapur,anditisregisteredassessions
case No. 72/2010. As it arises out of
ICR No. 46/2002, hence it was ordered
to be consolidatedandproceeded along
with sessions case No. 275/2002, 120/
2008 and 7/2009 hence proceeded ac-
cordinglyinsessionscaseNo.275/2002.
2. The accused are charged in this
caseu/s[underSection]143ofIPC[In-
dian Penal Code], u/s 147 of IPC, u/s
144,148ofIPC, u/s 302read withSec-
tion149inalternateSection302ofIPC,
u/s 307 readwith Section149, in alternateSection 307 of
IPC, u/s 323,324, 325 read withSection149, inalternate
Section 323, 324, 325 of IPC,u/s 395 of IPC,u/s 395, 397
of IPC,u/s 396 of IPC,u/s 435,436 readwithSection 149,
JUDGEMENT
(Edited Excerpts)
IN THE COURT OF SESSIONS JUDGE
AT MEHSANA
DESIGNATED COURT FOR
VIJAPUR POLICE STATION ICR NO. 46/2002
[SESSIONS CASE NOS. 275/2002, 120/2008, 7/2009 & 72/2010]
Complainant: The State of Gujarat
Versus
76 Accused ] 55 Accused in Sessions Case No. 275/2002
] 8 Accused in Sessions Case No. 120/2008
CORAM: KUM. SC SRIVASTAVA, ESQUIRE
DATED: 09.11.2011
On March 1, 2002, at
about 23:30 hrs, a mob
of around 1,000 Hindus
formed unlawful
assembly, carrying
deadly weapons and
attacked Shaikh Mohalla,
Sardarpura village, and
houses, cabins and shops
were set on fire

6
COMMUNALISM COMBAT
DECEMBER 2011
COVER STORY
inalternateSection435,436ofIPC,u/s447,448readwith
Section 149 inalternate Section447, 448ofIPC, u/s 336,
337 read withSection 149in alternate Section336, 337 of
IPC, u/s 295A, 153A, 297 of IPC and u/s 120B of IPC, u/s
135oftheBombayPoliceActforformingunlawfulassembly,
committingriotingarmedwithdeadlyweaponslikeironpipes,
sticks,swords,etcandvoluntarilycausinggrievoushurtin
furtherance of acommon object of unlawfulassembly or in
furtheranceoftheircommonintention,invillageSardarpura
on 01.03.2002 at about 23:30 hrs.
3.Theshortfactsgivingrisetotheprosecution’scaseare
asunder:On01.03.2002,atabout23:30hrs,amobofaround
1,000Hindusformedunlawfulassembly,carryingdeadlyweap-
onsvizironpipes,sticks,swords,andattackedtheShaikh
Mohalla, Sardarpuravillage, and houses, cabinsand shops
were set onfire. The house wherein theMuslim persons had
shelteredthemselveswasalsosetonfirewherein33Muslims
died andabout24sustainedinjuries.Twenty-eightaccused
arenamedintheFIR[firstinformationreport].TheFIRwas
lodgedon02.03.2002atabout 9:00hrs.Priortotheoccur-
rence of the incident on 01.03.2002, there was a carnage
incident whichoccurred on 27.02.2002
and there was a Gujarat bandh on
28.02.2002. Following the bandh on
28.02.2002,mobshadcompelledclosure
ofshopsinSardarpuravillage.Atabout
22:30 hrsto23:00hrs,amobofHindus
setonfirecabinsbelongingtoMuslims
and other communities. Upon receiving
informationaboutit,subinspector[PSI]
GK Parmar of Vijapur police station
rushedtoSardarpuravillageandarranged
fireextinguishersandaskedthevictims
tolodgetheircomplaint.
On the next day a Bharat bandh call
was given and in the evening a meeting
was organisedby PSI GK Parmarto make
efforts to maintainpeaceand harmony.
Healsocontinuedpatrollinginthevillagewithhismenina
police vehicle.He informed the Vijapurpolice station by
wirelessregardingthetenseatmosphere.Thereafter,PSIML
Rathod was sentto Sardarpuravillage witha policemobile
van and he reached the spot at about 20:30 hrs. Both the
subinspectorspatrolledinthevillagewithstaffandatabout
22:00 hrs a mob of Hindus comprising about 1,500 persons
carrying deadly weapons came shouting against the police
andMuslimsandstartedpeltingstonesandburningtheshops,
cabins, belonging toMuslims in the bazaarupon which the
policeresortedtolathicharge,lobbingteargasandulti-
mately, firing, anddispersed the mob…
Nobody was seenmoving in the village,as the situation
in Vijapur town had worsened. On the message from the PI
[policeinspector]ShriKRVaghela,policerushedtoVijapur
town.Thereafter,onreceivingtheinformationthattheat-
mosphere in Sardarpura had worsened, subinspectors ML
Rathod and GK Parmar were sent again. They reached
Sardarpura by clearing hurdles dumped on roads. Shri KR
VaghelaalsoreachedSardarpurawithfirefighters.TheSP[su-
perintendent ofpolice]andDySP[deputysuperintendentof
police] withtheirstaffrushed to Sardarpuraand thenthe
rescueoperationstarted.Firewasextinguishedandpeople
of theMuslim community were rescuedfrom Shaikh Mohalla.
During the attack on Shaikh Mohalla many Muslim per-
sons, women and children took shelter in a single pukka
building of Shaikh Mohalla. The police rushed there and
opened the door and found many of the sheltered persons
dead. From this building, dead bodies ofdeceased and in-
juredpersonswereshiftedinpoliceandprivatevehiclesto
Mehsana CivilHospital. In the incident, 33 Muslims from
ShaikhMohalladiedand24sustainedinjuries.
Accordingly,anFIRwaslodgedbeforethe policeinspec-
torShriKRVaghelainCivilHospital,Mehsana,on02.03.2002
at about 9:00hrs. The said was registeredwith the police
station by police station officer Ambalal Karsanbhai on
02.03.2002 at about 11:30 hrs. Investigationwas carried
outbypoliceinspectorShriKRVaghela.Thereafter,itwas
carriedoutbyShriRDBaranda andlastly,on histransfer,
investigationwascarriedoutbyPIShriKPPatelwhileShri
BVJadeja,DySP,Visnagar,thevisitationofficerinthiscase,
supervisedtheinvestigation.Deadbod-
ies of 28deceasedwere identified by
Nazir Mohamed Akbarmiyaat the Civil
Hospital, Mehsana, while other dead
bodies wereidentifiedduringthein-
questbyrelativesofthedeceased.
On 03.03.2002 a panchnama [writ-
ten and attestedrecord] ofthe place
of offence was drawn. The place was
shown by the victim Shaikh Bachumiya
Imammiya. The damage done by the mob
tothehousesandvehicles,lootingof
properties,etcbelongingtotheMuslim
families are shownin the panchnama.
Post-mortemreports,injurycertificates,
werecollectedbytheinvestigatingof-
ficer[IO].Furthermore,thestatements
ofeyewitnesses,policewitnesses,governmentwitnessesand
peripheralwitnesseswerealsorecordedbytheIO.
4. During theinvestigationnames of atotal 55 accused
weredisclosedbythecomplainantandwitnessesandallthe
55 accused werearrested and subsequently charge-sheeted
on 27.07.2002. Allthe 55accused were releasedon bail by
thesessionscourt,Mehsana, fromtime totime. As against
those bails,no appeal was preferredby any of theIOs but
the complainant approached the high court vide criminal
misc application Nos. 4026/2002, 3590/2002, 3591/2002
and2588/2002requestingthehighcourttorejectbail.But
thoseapplicationswererejectedbythehighcourtofGujarat.
During theinvestigation clothes ofthedeceasedafter the
post-mortem were collectedby theIOandcasepropertyre-
ceipts(muddamalreceipts)wereprepared.Duringinvestiga-
tionthe FSL [ForensicScience Laboratory]hadvisited the
placeofoffenceandcollectedvariousnecessarysampleslike
clothes of thedeceased, articles taken from the place of
offence, burnt clothes, containers and othersamples; 14
weapons were recovered from 14 accused.
During the attack on
Shaikh Mohalla many
Muslim persons, women
and children took shelter
in a single pukka
building of Shaikh
Mohalla. In the incident,
33 Muslims from Shaikh
Mohalla died and 24
sustained injuries

COMMUNALISM COMBAT
DECEMBER 2011
7
Ultimately,thechargesheetwassubmittedbeforethecourt
ofthejudicialmagistrate,firstclass,Vijapur,whichwas
numbered as criminalcase No. 724/2002 andit was charge-
sheetedagainst55accused.Thusearlierinvestigationwas
carried outfrom 01.03.2002 to 27.07.2002and during that
investigation amapoftheplaceofoffencewaspreparedby
the revenuecircleinspector, Vijapur,andphotographs of
thesceneofincidentwerealsotakenduringtheinvestiga-
tion.Aftersubmissionofthe chargesheet,acriminalcase
was committed to the sessions court vide sessions case
No. 275/2002 and it was pending for framing of charges.
The trial was stayed by the Supreme Court of India in
transfer petition (criminal No. 194-202 of2003 and 323-
329 of 2003 with criminal misc petition No. 6970-6948
of 2003 and 407-410 of 2003 on 21.11.2003) in writ
petition (criminal No. 109/03 and TP No. 194/03, 202/
03, 326/03, 329/03) filed by the National Human Rights
Commission (NHRC)
in theSupreme Court
ofIndia.
5. The Supreme
CourtofIndiapassed
order on 26.03.2008
forformingofaSpe-
cial Investigation
Team (SIT) for the
investigation of
nine important
cases of the post-
Godhra carnage, in-
clusiveofthiscase.
In transfer petition
No. 194-202/03
filed by the NHRC,
11 affidavits were
filed before the Su-
preme Courtof India
in connection with
this offence and ul-
timately, as per the
direction of the Su-
preme Court, the Special Investigation Team has been
formed, which had taken charge of further investigation
and Shri GV Barot, assistant director, Anti-Corruption
Bureau, was appointed as investigation officer of the
present case with three team members and further inves-
tigation wascarried out accordingly. Duringtheir inves-
tigation nine witnesses in their further statements have
disclosed that they were also injured and this fact was
not disclosedin previous investigation.
DuringtheinvestigationbytheSITanadvertisementwas
publishedinleading dailynewspapers ofGujarat,inviting
people tocontactthe SITin person orthrough written ap-
plication togive any relevant informationor evidence in
connectionwiththecasesunderinvestigationbytheSITas
aresultofwhichapplicationsinthiscasewerealsoreceived
by theSIT.Statements of 44 witnesses,including the com-
plainant,and15policepersonswereverifiedandtheirfur-
ther statementswere recorded by theSIT while statements
of 39new witnesses were recordedbythe SIT.
6.Further,theplaceofincidentwasvisitedbytheSITto
state the scene of incident and surrounding geographical
situationand anadditionalsketch was preparedby theSIT
withthehelpoftherevenuecircleinspector.Further,some
photographs were also taken by the SIT and during their
investigation 21 persons were named by the witnesses as
accusedandtheSITarrestedaccusedNos.1to8insessions
case No. 120/2008, on 26.05.2008. They were remanded to
police custody subsequently, sent to judicial custody on
30.05.2008andstillareinjudicialcustody,andasupple-
mentary charge sheet was filed on 22.08.2008, naming 13
persons as absconders and accused Nos. 9 to 21 were ar-
restedon03.09.2008bytheVijapurpolice.Onthereportof
the SIT, they were remanded to police custody up to
09.09.2008andthensenttojudicialcustodyon09.09.2008.
Theyarestillinjudi-
cialcustody.Supple-
mentary charge
sheetsweresubmitted
againstthem,exclud-
ing Arvind Kashiram
inwhosefavourare-
port under Section
169ofthe CrPC[Code
of Criminal Proce-
dure] was made,
which was not ac-
cepted by the court
andtherefore,subse-
quently, a charge
sheetagainsthimhas
been submitted and
all the cases have
been committed to
thesessionscourtfor
trial.
Thus the total
number of accused
before the sessions
courtare76underallthefourcases.Furtherpermissionto
prosecute all the accused for the offence under Section
153A, IPC, has been obtained fromthe competent authori-
ties.ShriSCShahhasbeenappointedasspecialprosecutor
and Shri VGPatel has been appointedas additional public
prosecutor to conduct the trial of this case,by the gov-
ernmentof Gujarat.
… … …
17.I haveheardthearguments advancedbyShriSC Shah,
learned specialprosecutor,who is assistedby additional
special prosecutor Shri VG Patel, appearing on behalf of
the prosecution, aswell as I have also heard the learned
advocatesShri HMDhruv, Shri BCBarot, ShriAM Patel, ap-
pearing on behalfof the accusedpersons.Ihavealso gone
through the written arguments… submitted by learned
COVER STORY

8
COMMUNALISM COMBAT
DECEMBER 2011
advocate Shri YBShaikh,appearing on behalfof theorigi-
nal complainant.This courthas paidsufficientattention
towardstheoralaswellaswrittenargumentsadvancedand/
or submittedby the learned advocatesappearing on behalf
of both sides…
POINTS
19. Thefollowing points arise formy determination of
thiscase:
1) Whethertheprosecutionprovesthatthedeathsof the
33 personsarehomicidal deaths?
2) Whether the prosecution proves that the accused or
any of them, in furtherance of a common object, formed
unlawful assembly with the common object of voluntarily
causing hurt, grievoushurt, murder,burnt, andto robthe
properties of the Muslim community and thereby became
membersofunlawful assembly?
3) Whether the prosecution proves that the accused or
any of them formed unlawful assembly
with the common object of voluntarily
causing hurt, grievous hurt, murder,
burnt,andtorobthepropertiesofthe
Muslim community and thereby became
membersofunlawful assembly?
4) Whether the prosecution proves
that the accused or any of them com-
mittedriotingbyarmingthemselveswith
dangerous weapons?
that the accused,in furtherance of a
common objectofunlawfulassembly, by
using force and violence have commit-
tedrioting?
that the accused, in furtherance of
a common object, voluntarily caused
grievous hurt, burnt alive and as-
saulted Muslim men, women and chil-
dren with intention, knowing fully well that if the said
act is done, they may cause the death of persons and
by doing this act, they have committed offence?
7) Whethertheprosecutionproves thatallorany of the
accused have committed offences causing the murder of 33
persons?
accused have, infurtherance of a commonobject of unlaw-
ful assembly, by burning men, women and children of the
Muslim community, attempted to commit the murder of
Shayanabanu Ayubbhai Shaikh,Basirabibi Bachumiya Shaikh
andIliyasbhai?
accused have, by burning men, women and children of the
Muslim community, attempted to commit the murder of
Shayanabanu Ayubbhai Shaikh, BasirabibiBachumiya Shaikh
andIliyasbhai?
10) Whetherthe prosecution provesthataccused No.10,
Patel Jayantibhai Jivanbhai, along with other persons,
by forming unlawful assembly, committed dacoity of or-
naments worth Rs 60,000?
11) Whether the prosecution proves that in further-
ance of a common object of such unlawful assembly, all
the accused or any of them have caused damage to the
property of Muslim persons to the amount of Rs 85,87,500
along with destruction of 19 houses, three shops, five
cabins, one hut, one jeep and one scooter and thereby
committed offence?
ance of a common object of such unlawful assembly, all
the accused orany of the accusedhave committed criminal
trespass by entering the house of Bachumiya Imammiya
Shaikh or the religious place of Muslims as well as the
graveyard of Muslims with an intent to commit the of-
fence of insult and possession of the Muslim people’s
property?
ance of a common object of such unlawful assembly, ac-
cused No. 10 along with other
persons caused hurt, grievous
hurt, to the complainant and
witnesses so rashly and negli-
gently as to endanger human
life?
14) Whether the prosecution
proves that in furtherance of a
common object of such unlaw-
ful assembly, accused No. 10
along with other persons spoke
the words “Sala bandiyao ne
maaro [Kill the bandiyas – a de-
rogatory term used to address
Muslims]” with deliberate and
malicious intention to outrage
the religious feelings of the
Muslim community and promote
feelings of enmity?
15) Whether the prosecu-
tion proves that in furtherance of a common object
of such unlawful assembly, accused No. 10 along with
other persons had entered the graveyard of the Mus-
lim community and damaged the graveyard with in-
tention to insult the feelings of Muslims?
16) Whether the prosecution proves that all the ac-
cused or any of them have committed criminal conspiracy
to commit an offence punishable with death, imprison-
ment for life or rigorous imprisonment?
17) Whether the accused have committed offence by
committing breach of the notification of the district
magistrate, by arming themselves with burning rags,
stones, dharias[sickles], swords,ironpipes and inflam-
mable items, etc?
18) Which ofthe accused are liable for committing of-
fencesandifyes,underwhichsections?
19) What order?
COVER STORY
The prosecution proves
that the accused, in
furtherance of a common
object, voluntarily caused
grievous hurt, burnt alive
and assaulted Muslim men,
women and children with
intention, knowing fully
well that if the said act is
done, they may cause the
death of persons and by
doing this act, they have
committed offence

COMMUNALISM COMBAT
DECEMBER 2011
9
REASONS
21.Beforeenteringintotheappreciationofevidenceand
decidingallthepointsinthecase,itisdesirabletodiscuss
and decidethe point regarding theFIR. As per thecase of
the prosecution, complainantIbrahimmiya Rasulmiya Shaikh
lodged a complaint before the Vijapur police in Mehsana
CivilHospital,whichwasproducedduringthedepositionof
the complainant.To exhibitthe saidcomplaint,objection
was raised by the advocate appearing on behalfof the ac-
cused.
After considering the arguments advanced by the advo-
catesandonperusingthecitationsonbehalfofbothsides,
and keeping inmind the fact that thedocument in question
wasexecutedinMehsanaCivilHospitalanditwaswrittenas
per the say of the complainant and the complainant had
signed the complaint, and considering the citations, the
complaint was given tentative exhibit as Exh. 484. Now,
whetheritshouldbeconsideredasanFIRornot,oritshould
be regularlyexhibited:Forthis purpose,relyingupon the
evidence of the complainant and police witnesses, it was
arguedbythespecialprosecutorthatdelayhadbeencaused
in lodging thecomplaint due to emergency of treatment to
theinjuredpersons,asitwasanemergencytogivepriority
to savethe livesofthevictims.Further,Vijapuris45 km
away fromMehsana.Thus thedelayinlodging thecomplaint
wasareasonableoneandthecomplaintlodgedbyIbrahimmiya
Rasulmiya Shaikh is covered under Section 157, CrPC, is
signed by thecomplainant and written athis instance and
it wasread over to himand thereafteritwassignedbythe
complainant aswell as the PI. Furthermore, the incident
occurred on 01.03.2002 during 9:30 p.m. to 2:30 a.m.…
22. As perthe case of the prosecution,33 persons have
died intheincident andtheir deathisunnaturaland homi-
cidal.Thefollowingpersonshavedied:
1) Ashiyanabanu Aashikhusen Bachumiya Shaikh
2) Sakkarbanu Mahemudmiya Shaikh
3) ParvinabanuIbrahimbhai Shaikh
4) Samimbanu Mustumiya Shaikh
5) Zayadabanu Ibrahim Shaikh
6) Sayarabanu Abbasmiya Shaikh
7) Yunushusen Sherumiya Shaikh
8) ArifhusenManubhai Shaikh
9) Sultanabanu Mahemudmiya Shaikh
10) Javedmiya Mustumiya Shaikh
11) Rasidabanu Jamalbhai Shaikh
12) IdrishbhaiAkbarbhai Shaikh
13) Mehmudabibi Sherumiya Shaikh
14) VahidabanuNazirbhai Akbarbhai
15) BismillabanuBhikumiya Shaikh
16) Barubibi Babumiya Shaikh
17) Faridabanu Mahebubbhai Shaikh
18) Ruksanabanu Abbasmiya Shaikh
19) Mumtazbanu Maksubhusen Shaikh
20) Mumtazbanu Sherumiya Shaikh
21) Johrabanu Manubhai Shaikh
22) Husenabibi Hibzulmiya Shaikh
23)RifakathusenHijbulmiya Shaikh
24) Manubhai Husenbhai Shaikh
25) Bachumiya Nathumiya Shaikh
26) SherumiyaRasulmiya Shaikh
27) Abbasmiya Kesarmiya Shaikh
28) Raziabanu Ibrahimmiya Shaikh
29) Abedabanu Manubhai Shaikh
30) Rafik Manubhai Shaikh
31) Firoz Mahemudhusen Shaikh
32) Irfanhusen Mahemudmiya Shaikh
33) SuhanabanuSafikmiya Shaikh
… … …
48. …[T]he prosecution has estab-
lishedbeyondreasonabledoubt thatthe
allegedincidentoccurredon 01.03.2002
during 9:30p.m. to 2:30 a.m. in Shaikh
Mohalla ofSardarpuravillage, in which
33 personsdied and 24 personswere in-
jured and housesinShaikh Mohalla were
set on fire and three cabins at the en-
trance of ShaikhMohalla were burnt and
the main incident occurred in Mahemudmiya’s house and
thattherewereabout55to60personsinsideMahemudmiya’s
house and bypouringpetrol and keroseneand other inflam-
mable items, the house of Mahemudmiya was burnt by the
mob andthe result is that33 persons died andothers were
injured. Some ofthe deceased died due to suffocation and
carbon particles in the trachea and one victim sustained
injuriesduetoelectrocution.
It is also proved by the prosecution thatdamage to the
graveyard was also caused by the mob andone jeep bearing
registration No. GJ17A8775, which was standing near the
house of Bachumiya Imammiya, was burnt by the mob and
one scooter bearing registration No. GAF4710, which was
lying in frontof thehouseofShaikh Babubhai Mahmadbhai,
wasburnt.Itisalsoprovedbytheprosecutionthatallthe
victimswereshiftedtoCivilHospital,Mehsana,wherepost-
COVER STORY

10
COMMUNALISM COMBAT
DECEMBER 2011
mortemsof32personswereperformedeitherinCivilHospi-
tal,Mehsana,orinCivilHospital,Ahmedabad.Theprosecu-
tionalsoprovesinjurycertificatesof24persons.
Itisalsoprovedbytheprosecutionthattherewassuffi-
cientlightat the time ofoccurrence.Itis alsoproved by
theprosecutionthatfiringwasresortedtobythepoliceto
disperse the mob at about 9:30 p.m. when the first mob
came. It is also proved by the prosecution that the mob
came from two sides, one from the Sundarpura side and an-
otherfromtheSardarpuraside.Itisalsoestablishedbythe
prosecution that a meeting for peace wasorganised at the
residenceofMunsufkhanYasinkhanPathan.Itisalsoproved
by the prosecutionthat at about2:30 a.m.SP Shri Gehlot,
DySPShriJadeja,PIShriKRVaghela,PSIsShriRathod,Parmar
and Gohel andother police officials reached the place of
occurrence andrescue operations took placeat about 2:30
a.m. andsubsequently the victims were shifted to village
Savalaandotherplacesaspertheirdesire.
But the prosecution could not prove the meeting organ-
ised by Patel Narayanbhai Lallubhai, MLA, Unjha, at the
Mahadev temple, Sardarpura, and
Hareshbhai’s[HareshBhatt,BajrangDal
leader,thethenMLAfromGodhra]meet-
ing abouthalogenlights,about direct
illegalwires,aboutdistributionofkero-
seneandalsoaboutwhatBasirabibiwas
told in the shop about the eating of
bhajia when she took gram flour, and
about the key of the waterworks taken
before the incident…
52.…[I]tisarguedbyShriDhruvthat
here, inthepresentcase,thereareno
[other] eyewitnessesmaking claims of
having witnessed the incident. They
have not deposedbefore thecourt that
out of the mob,… who set on fire the
house of Mahemudmiya… If any of them
had witnessedtheincident, theywould
havecertainlynamedparticularpersons.
As so many persons have been named in
the FIR andstatements, who assaulted and seton fire the
house of Mahemudmiya? Further, it is argued by him that
the substantive offence of murder must be shown to have
been committedbyany particularaccusedandifthere isno
evidence on record of who set on fire the house of
Mahemudmiya, the present accused cannot be convicted.
Convicting the accused with the aid of Section 149, some
overt act must be shown to have been committed by the
accusedforcommittinga substantive offence.
Further,itissubmittedthatallthewitnesses,including
thecomplainant,havemateriallyimprovedtheirversionand
theyhavegivenabsolutelydifferentversionsthanwhatthey
gave beforethe investigating authority. Over and above,
theyhavematerially changed and improvedupon theirwrit-
ten affidavitsproduced before the SupremeCourt of India
andwrittenapplicationsaddressedtotheSIT.Moreparticu-
larly, in dealingwith a communal riotsmatter where emo-
tions were running high between the two groups, evidence
of witnesseswouldrequireto beexamined very cautiously.
Evidenceadducedbyallthewitnessesisfullofmaterialand
important contradictions…
Further, it issubmitted byShri Dhruvthat the defence
submitted by the accused is much acceptable on the basis
oftheevidenceadducedbefore thecourt.Anaccusedisnot
requiredtoprovehiscasebeyondreasonabledoubt,asitis
upon the prosecutionto prove the guilt ofthe accused be-
yond reasonabledoubt. As reasonable doubtabout the com-
plicityoftheaccusedisshownonthebasisoftheprosecu-
tionevidence,theaccusedwouldbeentitledforacquittal.
In the present case, the accusedhave successfully shown
that the house of Mahemudmiya which is alleged to have
been set on fire… was attacked from the backside of the
house by the mob of village Sundarpura and not by the mob
ofSardarpurafromwherethepresentaccusedbelong.Allthe
accused havegivenplausible and possibleexplanations as
to whythey have been framed by the witnesses.
Further, it isargued by Shri Dhruvthat witnesses have
claimed that theyhave seen the accused froma very little
distance.Theyidentifiedcertainac-
cusedfromthemob.Alsohowever,all
thewitnessesaresilentaboutthefact
as to who set on fire the house of
Mahemudmiya and how the house was
setonfire.
Further,itisarguedbyShriDhruv
that looking to the position of the
houses,itisimpossiblethatanyone
who was inside would ever survive.
However,prosecutionwitnessesclaim
that certaininjured witnesses were
rescued from the house of
Mahemudmiya and for this purpose,
Shri Dhruv has drawn my attention
towards the FIR in which it is men-
tioned that onlythree persons were
rescued from the house of
Mahemudmiya, who died on the way
to thehospital.As perPW[prosecu-
tion witness] 56, Shaikh Ayubmiya Rasulmiya, PW 73,
Faridabibi Aashikhusen Shaikh, PW 78, Shaikh Basirabibi
Bachumiya, and PW 80, Shaikh Ruksanabanu Ibrahimmiya
Shaikh,allofthemhavedeposedbeforethecourtthat they
sustainedinjurieswhiletheywereinsidetheroom.
Further, there isno evidence on recordto suggest that
the attack waspredetermined or the act ofsetting on fire
the house of Mahemudmiya was predetermined.There is evi-
dence on record to show that Mahemudmiya’shouse was tar-
getedparticularlybecauseitcontainedmorepersonsinside
it.Ifamobhaspredeterminedtosetonfirethepersonsof
a particular communitythen they would notspare any wit-
nessesfoundontheir way.
Further,it issubmitted byShriDhruvthatassuming the
accused shareda common object, tokill a person ofa par-
ticularcommunity,thenthecertainwitnesseswhowereseen
by the mob standing in the said mohalla, none of the wit-
nesseswereattackedbythatmob,andthereforeitisthesay
COVER STORY
The prosecution proves
that in furtherance of a
common object of such
unlawful assembly, the
accused have caused
damage to the property of
Muslim persons to the
amount of Rs 85,87,500
along with destruction of
19 houses, three shops,
five cabins, one hut, one
jeep and one scooter and
thereby committed offence

COMMUNALISM COMBAT
DECEMBER 2011
11
of ShriDhruvthat the mobreferred tobythewitnesses had
not killed anyoneor set on firethehouse of Mahemudmiya.
The witnesses who were found in the said mohalla,seen by
the mob, werevery soft targets…therefore itcan never be
saidthatthemobhadanyobject evenin commissiontokill
particularpersonsofthatcommunity.Further,itissubmit-
ted that the incident had not occurred in the manner as
deposed by thewitnesses. Whatisdeposedby thewitnesses
inthecourtwasnotstatedatthefirstavailableopportunity
either to the police, to any of the members of any commu-
nityortotheSITformedaftersixyears.Itgoestosuggest
thatprobablythewitnesseshavenotwitnessedtheincident
and they haveframed the accused.
53. So far as the contention regarding consistent im-
provements in theevidence of the witnesseswho have sup-
portedtheprosecutioncaseisconcerned,allthesewitnesses
havebeenextensivelycross-examined.Allpossiblelatitude
was giventothelearned advocates in thematterof cross-
examination and no attempt was made to curtail the length
of thesameat any pointoftime.
Further, the wholearguments of the accusedside in re-
spectoftheimpossibilitytoseethemobisunrealistic;see-
ingorobserving a mob isnotthe samethingas observing a
single stationary object.In the present case,the mob is
statedtoconsistof1,000to1,500persons.Itistruethat
thecorrectnessofthisfigurecanbedoubted.Buttherecan
be nodispute that a largenumber of persons werethere in
the mob. The area and space occupied by such a big mob
wouldbeconsiderableanditwouldbefutiletosaythatthe
mob couldbeseenfrom anyparticularpoint only orthat it
could notbeseen from anotherparticularpoint.The posi-
tion of a person in the mob can be very far from that of
another in the same mob, as the mob was not standing but
moving towards Mahemudmiya’s house. The evidence shows
the presence ofthe mob at the placeof occurrence during
theperiod.Theeyewitnesseswerealsopresent.
Under thesecircumstances, there isnothingtoindicate
that the claim of having seen some of the accused among
themobofrioters,asmadebytheeyewitnesseswithintheir
evidence,relatestoanyparticularpointoftime.Theevi-
dence of eyewitnesses cannot be construed so as to mean
that whosoever were observed by them as persons in the
mob of rioterswere so observed only whenthey were inside
Mahemudmiya’s house or [that from] some other house in
Shaikh Mohalla they did not see anyone. Thus the conclu-
sionisthereforeirresistible thatthereisnothinginthe
evidence which wouldindicate that it wasnotpossiblefor
theeyewitnesses tohaveseen or identifiedany persons in
themobofrioters. Evi-
dence indicates that
therewaseverypossibil-
ity of the eyewitnesses
being able to see the
mob, at least some per-
sons in the mob, during
the time for which the
mob was there.
Sofarasthearguments
advanced bythe accused
side–thatiftheobject
ofthemobwastokillthe
Muslims, why have they
left the witnesses who
wereverymuchpresentin
Shaikh Mohalla, no one
had prevented the mob
[from killing] them to
achievetheirobject–is
concerned: an unlawful
assembly,thoughitdoes
possess a common unlaw-
fulobject,isnotneces-
sarily governed by any
fixed or planned pro-
gramme. The object is common and it is to be accom-
plished but themethods areleft tothemembers concerned,
to be decided on the basis of what would happen on the
spot. It is evident that there was no specific object to
kill any specific persons or any specific number of per-
sons, setting on fire the cabins and houses in Shaikh
Mohalla. Specially, the house of Mahemudmiya in Shaikh
Mohalla was the easiest and most convenient way of caus-
ing damage to person and property, to create a more ter-
rible impact or fear in the minds of the Muslim commu-
nity. The house in Shaikh Mohalla was a dwelling house
and members of the unlawful assembly were clearly aware
that a number of persons were inside the house; in spite
of that, the whole house was set on fire.
Considering theabove,it cannotbesaidthat theobject
of theunlawful assembly was not to take away thelives of
COVER STORY

12
COMMUNALISM COMBAT
DECEMBER 2011
any ofthe persons. [So faras] the arguments on behalf of
the accused that if the object of the mob was to kill the
Muslims, howhave they spared thewitnesses is concerned,
it is notthat any individual member ofthe assembly would
instantlykillany Muslimassoonas aMuslimwouldcome in
contact with him. It is only the collective action of the
assembly, if supported by numerous persons then only he
would be instigated to commit such an act. When an indi-
vidualispart ofa mob,he loses his identityand takes on
the identity ofthe mob; then any person,however mild or
aggressive hemay be, does whatthe mob does. It is always
seen in actions by mobs: an individual comes up with the
strongestpossibleexpressiononsuchoccasions,whileina
mobofrioters.
Further,changeinthecompositionofthe assemblywould
notmakeanydifferenceinthepenalliabilitytobefastened
on anindividual accused. For fasteningsuch liability on
him, it is to be shown that he was a member of unlawful
assembly at thetime of committing anoffence. Thusassum-
ing therearea number ofchanges inthe composition, even
thenitistobetreatedasasingleun-
lawfulassemblybyreasonoftheconti-
nuityofitsactivitiesandidentityof
theobjectandtheaccusedisliablefor
guiltforoffenceifhewaspresentinthe
unlawful assembly atthe time ofinci-
dent. The moment a member disassoci-
atesfromthemembershipofunlawfulas-
sembly,hisresponsibilityorliabilityfor
the acts committedby the unlawful as-
semblythereaftercomestoanend.Here
the members ofunlawful assembly have
committedcapitaloffences.The act of
setting on fire the houses in Shaikh
Mohalla,speciallyMahemudmiya’shouse,
isindicativeofanintentionoratleast
theknowledgenecessarytoconstitutethe
offenceofmurderincircumstancesthat[ledtothe]deathof
33personsand24injuredonaccountofthefiresoset.
By keeping in mindthe ratio laid down in all the cita-
tions, cited onbehalf ofboth sides, whenwe consider the
facts ofthepresent case,accusedas wellas witnessesare
residentsofthesamevillage.Theyareknowntoeachother.
Asdiscussedearlier,therewassufficientlightatthetimeof
occurrence so that witnesses could see themob. Under the
abovecircumstances,ifnoidentificationparadeoftheac-
cusediscarriedout,it becomesof noimportance.
54. Whether accused persons were members of unlawful
assemblyisrequiredtobeestablishedonthebasisofiden-
tificationoftheaccusedalso.Themainchallengefromthe
accusedsideisthatitwasnotpossibleforthewitnessesto
see the mob of rioters and it is argued by them that no
identification parade of accused persons has been made
duringinvestigation.[Sofaras]thefundamentalandbasic
questioninrespectoffixationofidentityoftheaccusedis
concerned,theactualevidenceregardingidentificationis
that whichis given by awitnessinthe court.Ifthat evi-
dence isacceptable, the question whetherthe identity of
theaccusedhadbeensatisfactorilyestablishedattheinves-
tigationstagewouldbeimmaterial.However,itmayberel-
evantforjudgingthereliabilityoftheidentificationmade
inthecourt.Identitysatisfactorilyestablishedduringthe
investigationstageinsomecasesservesascorroborationto
theidentificationinthecourtbutitwouldnotberelevant
atall.
The identityduringtrial isto beestablishedbyproper
evidence.Ifthevictimorwitnessnamescertainpersonsas
accused during theinvestigation, confirmation about the
identityoftheaccusedisnecessaryforarrestingpurposes
and theIO has toascertainthe identity of theaccused be-
foresendinghimfortrial.Oncethecasecomestotrial,the
identityoftheaccusedisrequiredtobeestablishedbyle-
gallyadmissibleevidence…
Here,inthepresentcase,theincidentlastedforalong
period, morethan one hour. Therewas sufficient opportu-
nityforthewitnessestoseetheoffenders,moreparticularly
in circumstances when the mob was from the same locality.
Duration of incident, manner and opportunity to observe
theincidentisrequiredtobeconsid-
eredwhileappreciatingtheevidence
on identification;therecannotbea
rejection of evidence on the ground
thattheywerenotabletoseethemob.
Therewaseverypossibilityforthewit-
nessestoseethepersonsinthemob,
as the mob was for a long period in
themohalla.
Once the accused are well known
to thewitnesses,thereisnoneces-
sityforatestidentificationparade.
Bykeepinginmindthesettledpropo-
sitionoflawinthisregard,whenwe
consider the present case, the sub-
stantiveevidenceasregardsidentifi-
cationwouldonlybe theidentifica-
tion of an accused made by a witness in the court. A test
identificationparadeisnecessarywhereoffenderswouldnot
beknowntothewitnessesbeforetheincident.Thusfailure
toholdanidentityparademay disprovefactsonlyin cases
where the offender would not be known to the witnesses.
The rule is based on logic, common sense and prudence.
Here,inthepresentcase,the accusedhavebeenidentified
by them, asthey were known to them previously. Here some
ofthewitnesseshaveidentifiedtheaccusedbyface,asthose
are not known to them by name. Here no identification pa-
rade was demanded by the accused during investigation.
During the trialithascomeoutthatthe accused belong
tothesamevillageandsamearea.Itisnotindisputethat
theaccusedbelongtoSardarpura…Theninthatcase,nothing
moreisrequiredtoacceptstatementsofthewitnessesthat
theyknowthemunlessitisshownpositivelythatwitnesses
are lying on record. Here thereis a positive claimof the
witnesses that they and the accused belong to the same
area. Thereisnoreasontodisbelieve thesay ofwitnesses
when theysaythattheaccused identifiedbythemare known
tothemsincebefore.
The attack was indeed by
a Hindu mob with no
particular enmity towards
any particular victim. The
actions of individual
accused were only a part
of the actions of the mob
and naturally were
premised as actions of the
mob by the victims and
witnesses
COVER STORY

COMMUNALISM COMBAT
DECEMBER 2011
13
Now the question which requires to be appreciated is
whetherevidenceofidentificationshouldbedisbelievedon
thegroundthateitherthenamesorthedetailsofparticu-
larsoftheaccusedidentifiedbythewitnesseswerenotmen-
tioned by them to the police… [Whether] the effect of not
namingthe accusedornot giving detailsor information to
thepolicewouldresultinrejectionofevidenceofidentifi-
cationmadebysuchwitnesseslaterinthecourtisamatter
depending on a number of facts. The actual evidence re-
gardingidentificationisthatwhichisgivenbyawitnessin
thecourt.Ifthatevidenceisacceptable,thequestionwhether
the identityof the accusedhadbeensatisfactorily estab-
lishedattheinvestiga-
tion stage would be im-
material saveandexcept
insofarasitmayberel-
evantforjudgingthere-
liabilityoftheidentifica-
tion madein thecourt.
Iftheidentityofthe
accusedissatisfactorily
established during the
investigation stage, it
may in some cases serve
as corroboration to the
identificationincourt.
Butbyitselfitwouldnot
berelevantatall.Thecon-
firmationoftheidentity
oftheculpritsbytheIO
atthetimeofthearrest
would undoubtedly be
necessarybuttheIOcan-
notberestrictedtohave
such confirmation of
identityfromaparticular
case or in a particular
manner.Hisconfirmation
ofidentityisforhisown
satisfactionbutnot for
the satisfaction of the
courtduringthetrial.His
satisfaction about the
identitywouldberelevant
forthepurposeofarrestand tillthatstage. Theidentity
duringthetrialistobeestablishedbyproperevidence.
If the victimsor the witnessesnameacertain person or
personsasaccused,undoubtedlytheIOwhilearrestingthem
is required toconfirm their identity asthe same persons
againstwhomallegationshave beenlevelled.However, this
satisfactionistobereachedbytheIO.Hecanarriveatitby
anymodewhichhethinkssatisfactory.Thisisclearfromthe
factthateven wherethenamesarenotgiven,orevenwhere
the culpritis stated to beunknown to the victims,the IO
has to ascertainthe identity ofan accusedas the culprit
beforesendinghimfortrial.Obviously,insuchcases,con-
firmationofidentitycannot be donefromthevictims.The
source onwhich his belief wouldbe basedhasnothingto do
withtheadmissibility,asapieceofevidence,ofthatsource.
The IO mayreach the requisite satisfactionfrom a source
other than the victims and the witnesses even where they
have namedthe offenders.
[Sofaras]thecontentionofimpossibilityoftheeyewit-
nesses havingseen the mob or some persons in the mob, as
advanced, is concerned,the mob was of 1,000 to 1,500. It
is proved thatstones were thrown andkerosene and petrol
were poured. In these circumstances, it would be normal
behaviour for witnesses to see what was happening when
the stones were pelted and slogans were being [shouted]
and firewasbeing set. Atanyrate, the commonreaction of
a human being would be to
trytoascertainfromwhere,
how serious andof what na-
turethedangeris.Whenthe
mob collected, [shouting]
slogans, it would be quite
naturalforthewitnessesto
firsttrytoseewhatwashap-
pening and in that process
obviously to see who were
thepersonsformingthemob.
Itisonlyafterknowingwhat
they were doing that the
witnesses would know to
what extent they were in
danger.
Prioracquaintancemaynot
beinferredfromthefactthat
theaccusedandwitnessesare
residentsofthesamelocality
ornearbyareas.Hereisaspe-
cificcasewherewitnessesand
accused belong to the same
village,whichstrengthensthe
claimofwitnesses.
Itisnotindisputethat
during the period of the
presentincidentanumberof
casesofseriousoffenceswere
being registered and there
was a serious law and order
problemwhichthepolicewas
facing.Itwasnotpossibletomakedetailedinquiriesofthe
witnessesandtrytoelicitdetailedinformationfromthem.
Further, considering thementaland physicalcondition of
theinjuredwitnesses,itwasnotpossibletoacceptthatthey
willgivedetailsoftheincident.Itwasnotpossibletomain-
tain anaccuraterecordofwhatthewitnessessaid.Theau-
thenticityandaccuracyofthestatementsrecordedbytheIO
arerequiredtobeconsideredcarefully.Theallegeddiscrepan-
cies,contradictions,omissions,intheappreciationarere-
quired to be considered by keeping the above evidence in
mind. Most of the contradictions and omissions which are
broughtonrecordareinsignificantandimmaterial.
The onlysignificant and material omission would be to
statethenamesofcertainaccusedpersonsasbeingpresent
COVER STORY

14
COMMUNALISM COMBAT
DECEMBER 2011
in the mob in case of those witnesses who claim to have
known them from before. Contradictions in the statements
of concernedeyewitnesses as compared withthe statements
recordedbytheIOcannotbeallowedtoaffectthecredibil-
ityofthosewitnesses.Further,notmuchimportancecanbe
given tothe so-calledcontradictions andomissions, given
thecircumstancesin whichstatements wererecorded. There
cannot beaninflexible rulethatif awitnessdidnotname
an accusedbeforethepolice, hisevidence identifying the
accusedforthefirsttimeinthecourtcannotbereliedupon.
Failure to name the accused in the statements before the
policethough knownwould not resultindrawing an adverse
inferenceagainsttheprosecution.Theremaybeseveralrea-
sons for witnesses not naming the accused or stating that
the accusedwas knowntothem,andifthereasonsarefound
acceptable,theevidenceofthewitnessescannotbedoubted
onlyduetosuchfailure.Suchomissionsonthepartofwit-
nesseswouldonlyrequiredeeperandcloserscrutinyofthe
evidenceanddoesnotwarrantitsoutrightrejection.
Further,[sofaras]theeffectsofthevictimnotnaming
the accused before the police though previously known to
him is concerned,here, in the present case, victims have
sufferedbrutalmentalagonyandinthesecircumstancesand
that toothattheaccusedand witnessesareresidinginthe
sameoranearbylocality,wouldcertainlypreventthewit-
nessesfromnamingtheaccused beforethepolice.Therewas
atenseatmosphere.Thevictimswereundertremendous[ten-
sion].Inthatcircumstance,ifthewitnesseshavenotnamed
the accused before the police though known to them, that
wouldnotbesufficienttodiscardtheirtestimony.Thebasic
suppositionaboutthebehaviourorreactionorperceptionof
thewitnessesregardingtheincidentwillbewronglypresumed
ifweexpectthattheyshouldhavementionedthisspecifically
inspiteofthesituationprevailingatthattime.Wehaveto
give athought to how awitness will express whathad hap-
pened.
The attack was indeed by a Hindu
mob with no particular enmity towards
anyparticularvictim.Theactionsofin-
dividualaccusedwereonlyapartofthe
actions of the mob and naturally were
premised as actions of the mob by the
victimsand witnesses.In suchcircum-
stances, the history as given in the
medicalpapersisproper. Whether any-
body from the mob was known to the
witnesses was a matter which could be
statedbythewitnessesonlyonspecific
questionstothem.Inthelightofevi-
dence as to the condition of the in-
jured, tenseatmosphere, heavy burden
onthepolice,itisimpossibletohold
thatanyattemptstoelicitthisspecific
informationagainsttheoffenderswere
madeorinjuredwitnesseswereinapo-
sitionatthematerialpointoftimetogivesuchevidence.
Inthesituationthatwasprevailingatthematerialtime,it
was impossible forthe IOto coolly andcalmly elicit such
details fromthevictimswho wereundersuch [tension]and
injured.
Therefore theevidence of eyewitnesses cannot be dis-
credited on the ground that no identification test pa-
rade was done or the accused were not identified by the
witnessesbefore thepolice. Here, in thepresent case, it
is not claimed by the accused that they are not known to
the witnesses.They have not demanded a test identifica-
tion parade during investigation, which was not held.
The accused wereidentified by the witnesses in the court
during the trial…
Eye Witness Accounts Reliable
55.Ihavenohesitationtoconcludethattheevidenceof
eyewitnessesregardingidentificationcannotbediscredited
on the ground that they had not named or not given de-
scriptions of theaccused identifiedbythemto thepolice
though they were previously known. There is nothing con-
tradictory,incredible,improbableorinconsistentintheir
evidence. Further, considering the whole evidenceof the
witnesses,allthewitnesseshaveavoidedattributingfalse
overt acts tothe accused identified bythem, which would
have been quite easy for them.There are a numberof inci-
dentsintheevidenceofthese witnesseswhichsuggestthat
theycouldhave implicatedmoreaccusedthanidentified by
themorattributedmoreseriousactstotheaccusedidenti-
fied by them, which has not been done.
No Tutoring by Teesta Setalvad, CJP
56.Itissubmittedonbehalfoftheaccusedthateyewit-
nessesaretutoredbySmtTeestaSetalvad.TheinterestofTeesta
Setalvadandherorganisationinthepresentcaseisobvious.
Thewitnesseshavespecificallydenied
thatTeestaSetalvadhastoldthemasto
whatevidencewastobegiveninacase.
Consideringtheevidenceandfactsin
thisregard,whenweconsiderthisfact,
merediscussion aboutthecase would
notnecessarilyindicatetutoring.Itis
notan acceptedproposition thatthe
witnessesarenevertobecontactedby
anyone or spokento about the matter
regardingwhichtheyaretodepose.A
number of things can be told to the
witnesses,suchasnottobenervous,
carefullylistentothequestionputto
them,statethefactsbeforethecourt
withoutfear,thereforeitdoesnotap-
pearobjectionable,morallyorlegally.
Tutoringawitnessisquitediffer-
ent from guidinghimastohisbehav-
iour.Inthepresentcase,theinjuredwitnesseswereinsuch
astateofmindthat withouttheactivesupportofsomeone,
they might nothave come before the courtto give evidence
The evidence of
eyewitnesses regarding
identification cannot be
discredited on the ground
that they had not named or
not given descriptions of
the accused identified by
them to the police though
they were previously
known. There is nothing
contradictory, incredible,
improbable or inconsistent
in their evidence
COVER STORY

COMMUNALISM COMBAT
DECEMBER 2011
15
at all. The encouragement and the advice, if provided by
CitizensforPeaceandJustice,cannotbeconsideredastu-
toringandsimplybecauseofthat,we cannotinferthatthe
witnessesaretutored.Fromthematter,it transpiresthat
CitizensforJusticeandPeacehavemadeallegationsbefore
theSupremeCourtofIndiaagainstthestateauthoritiesbut
on that strength, it cannot be said thatNGOs have worked
with bad motives. If they had fought for truth, what was
believed bythem as truth, itdoes not mean that they have
tutoredthewitnessestofalselyidentifytheaccusedinthe
court.
57. In thisregard, when we considerthe evidence, wit-
nessescouldbetutoredonlybyapersonwhoknewthefacts.
Itisdifficultforapersonwhowasnotpresentatthetimeof
occurrencetotutoranoccurrencewitnessandifatallthis
can be done, it would be based on the records of the case,
which does not seen to have happened in the present case.
Furthermore, the happenings and the manner in which the
present casetook place is alsonot much in disputeso the
aspectoftutoringwouldbeconfinedtoidentificationonly.
It isnoteasy totutorone toidentify another,as victims
and accused are previously known to each other but not
known to thetutoringpersons.Tutoringofthis type would
requirethepersonstutoring,theconcernedaccusedandthe
concernedwitnesstobetogetherforareasonableperiodor
oneormoreoccasion.Further, tutoringinsuchcaseswould
beinconsonancewithpolicerecordsortheprosecutioncase,
which does notappear tohave happenedin this case.
Further,itisalsoimportanttoconsiderthatbeforeiden-
tification in thecourt by thewitnesses,theaccused were
askedtositin thecourtaspertheirownchoice;theywere
not forced to sit by serial numbers given to them in the
charge sheet orany otherfixed order andtheir names were
neverloudlycalledoutinthecourtinthepresenceofwit-
nesses.Theidentificationsoftheaccusedhavetakenplace
under the observation of the court. So the court can view
theactions/reactionsofthewitnesses.Allprecautionswere
takenbythecourtwhileidentificationsoftheaccusedwere
carriedoutinthecourtroom.Further,precautionswerealso
taken by thecourtwhether witnessescouldsee the persons
sittinginthecourtroom.Similarly,theaccusedweregiven
libertytositinthecourtinanymanner,anywhere.
58. Sofar as irregularities, aspointedout, committed
during thecourseof investigationareconcerned,from the
evidenceonrecord,itappearsthattheIO,ShriKRVaghela,
wasmakingsufficienteffortsforarrestoftheaccused.Due
tonon-supportfromthelocality,hecouldnotarrestallthe
accused immediately andit took some time. Evenif some of
theaccusedwerearrestedsubsequently,byShriRDBaranda,
the thenpolice inspector,andafterinvestigation, by the
SIT’sinvestigatingofficerShriGVBarot,itdoesnotamount
fataltothecase,sincealltheaccusedarenotnamedinthe
FIRorinthestatementsofwitnesses.Thusthereisnodelib-
eratedefectiveinvestigation,nolacunaleftforfalselyim-
plicatingtheaccused.
The allegations ofmanipulation of the FIRhave no sub-
stance;thereisnoevidencesuggestingthemanipulationof
the records withintent to implicate theaccused more and
more. No manipulation has been done with regard to the
articlessentforexamination totheFSLforconnectingthe
articles with theoffence in question. No doubt there are
someirregularitiesand
lapsesininvestigation
but thosearenot such
whichcould prejudice
the accused. Thus the
casestandsontheevi-
denceofidentification
oftheaccusedby wit-
nesses and no proper
effortstocollectany
other evidence were
madeduringtheinves-
tigation.Theclaimof
theaccusedside,that
thiswasdonetoimpli-
cate the accused
falsely,isnotaccept-
able.Itiswellsettled
thatifthereareanyirregularitiesininvestigationandifthe
accusedisnotprejudicedduetosuchirregularities,itwill
notbefataltothecase.
Heretheaccusedarenotclaimingthattheyarenotknown
to thewitnessesand also havenotdemanded an identifica-
tion parade, which was not held in the present case, and
witnesseshaveidentifiedthe accusedinthecourt;nosuch
steps were takenby the accused in the present case. Thus
thereisnothinginthecasetoindicatedefectiveinvestiga-
tion duetowhichthe accused areprejudiced.Thusthereis
nothingwrongandimproperin theidentificationevidence.
59.Incriminaltrials,motiveisoneofthefactorsbutin
a case of murder and of direct evidence, motive is of no
importance if thecase is otherwise provedfrom other co-
gentandreliableevidence.Whileinacaseofcircumstantial
evidence,motiveplaysan importantrole.However, when we
consider the evidence in the present case, the motivebe-
hind the presentoccurrence is to take revengeon the Mus-
COVER STORY

16
COMMUNALISM COMBAT
DECEMBER 2011
limcommunity,askarsevakswereburntaliveintheSabarmati
train atGodhraandthismotiveisprovedfrom theevidence
ofallthewitnessesandalsoitisnotchallenged.
60. Unlawfulassembly has to bedetermined with respect
to each suchassembly that was formed duringtheperiod of
occurrence. Unlawfulassembly as definedinthe Indian Pe-
nalCodeis:anassemblyoffiveormorepersonsactuatedby
and entertaining oneor more of the common objects speci-
fiedbythe five clausesof[Section 141]…
In the presentcase, it cannot beignored that communal
riotsstartedasareactioncausedbythebeliefthatkarsevaks
hadbeenburnt todeathbyMuslims.Theriots aresaidtobe
retaliatoryaction.Thereforethereisnothingsurprisingif
themethodofburningisadoptedforkillingpeople.Toburn
anyonetodeath is an easyform of murder. Itdoes not need
a weapon and there is no evidence left behind; it is the
easiestwaytoinflictpainandthereisnophysicalcontact
between the assailantand victim.The variousacts such as
shoutingslogansandpeltingstones,burningcabins,houses,
were not committed at the whim ofindividual members com-
posingtheunlawfulassembly.
Itisevidenceonrecordthatsetting
onfirethecabinsandhousesinShaikh
Mohalla, causing burnsto the injured
aswellastothedeceased,clearlyindi-
cates thecommonobject ofthesaidun-
lawfulassembly.Further,enteringShaikh
Mohallabythemobitselfindicatesthe
common object of the mob therefore;
there wasnoreasonforanyoftheper-
sons from the mob to go to Shaikh
Mohalla at such a late hour.In Shaikh
Mohalla,onlythewitnesseswereresid-
ing.Itwasnotapublicplaceorpublic
way for passing and repassing of per-
sons.PersonscanbeexpectedinShaikh
Mohallaforaparticularpurposeonly.
Itisnotthesayofanyoftheaccused
thattheyhadbeenthereforanyotherpurpose.Further,there
was no previousenmity betweenthe victimsand accused; on
thecontrary,witnesseswereworkingeitherinthefieldsof
theaccusedorinbrickkilnsorsomeotherplacesoftheac-
cused:whythewitnesseswilltrytofalselyimplicatetheper-
sons who wereproviding sources of incometo them, leaving
theactualculprits?Thusthe commonobjectofunlawfulas-
semblyisclearlyestablishedbytheprosecution.
… … …
144. It isan admitted fact thatthe prescribed punish-
ment for theoffencesfor which theconvictedaccused per-
sons have been held guilty is either thedeath penalty or
imprisonmentforlife.Sincethisisacaseofmassmurder,it
was thoughtfit togivesufficientopportunity for hearing
on thepoint of sentence.
145. This court has heard each accused in person. Most
of the accused have said that they are innocent and they
havebeenfalselyimplicatedintheoffence.Itisthesayof
most oftheaccusedthateithertheyarevery youngpersons
ortheyareveryold, agedpersons,thatexceptthem, there
isnoearningpersonintheirfamily;theyhavelittlechildren
andconsideringallthesethings,theyhaveprayedformercy.
146. I have heard learned advocate Shri DM Dhruv, ap-
pearing on behalfof the accused. Mr Dhruvhas argued that
thiscourthasconvictedalltheaccusedpersonsunderSec-
tion302readwith[r/w]Section149oftheIPC,whichmeans
the court has not found any evidence against any of the
accused forcommitting any particular act and therefore,
insteadofbeingheldguiltyindividuallyunderSection302,
thecourthasheldguiltythe accused underSection302r/w
Section 149 and when the court has held that all the ac-
cused personsareguiltyofcommittingoffencespunishable
under various provisionsof the IPC, being amember of un-
lawfulassembly,thereforethisisnotthecaseinwhichthe
court has found that any particularaccused has committed
anyparticular actand therefore,insucha situation,the
court should not have to impose capital punishment and
should be lenient and should have to impose minimum pun-
ishment.
Mr Dhruv has further argued that
thisisnottherarestofrarecasesin
which accused may be imposed capi-
tal punishment. Itis furtherargued
that thereis no case in our country
in which when the accused is held
guiltyfortheoffencepunishableun-
der Section 302 r/w Section 149,
capital punishment is imposed. Mr
Dhruvhasfurtherarguedthatallthe
accusedarevillagers,theyarefarm-
ers, and mostof theaccused persons
areilliterateandthereforetheyshould
be imposed minimum sentence.
147. I have also heard the argu-
ments advanced by learned advocate
ShriBCBarot,appearingonbehalfof
the accused. Shri Barot has argued that when the accused
are heldguilty for various offencespunishable under the
penal provisionsof the IPC whereinminimum punishment is
imprisonment for life and maximum punishment is capital
punishment, while awarding the sentence the court has to
considerthecircumstancesinwhichsaidincidenttookplace
andthisisnottherarestofrarecasesinwhichcapitalpun-
ishment beimposed. In supportofhissay,hehascited the
caseofDwijendraShrishbhaiManekvsStateofGujarat,re-
portedin2006(1)GLR676,whereinitisheldbytheGujarat
high court that while hearing the accused on the question
ofsentence,thejudgemustelicitinformationfromtheac-
cused and inflict a just punishment keeping in mind age,
familybackground,antecedents,etc.
ShriBarothascitedanothercase,StateofGujaratvsRaghu
@RaghavbhaiVashrambhai&Ors,reportedin2003CRLR(GUJ)
381,whereinitisheldbythehighcourtofGujaratthatthe
provisionsofSection235(2)oftheCriminalProcedureCode
has added a much needed dimension in Indian criminal ju-
risprudence.Theobjectanddesignofsuchprovisionsisto
It is submitted on behalf of
the accused that
eyewitnesses were tutored
by Teesta Setalvad… The
encouragement and the
advice, if provided by
Citizens for Justice and
Peace, cannot be
considered as tutoring and
simply because of that, we
cannot infer that the
witnesses were tutored
COVER STORY

COMMUNALISM COMBAT
DECEMBER 2011
17
giveafreshopportunitytotheconvictedpersontobringto
the notice of the concerned court such circumstances as
may helpthe court in awardingappropriate sentence, hav-
ingregardtothepersonal,financial,socialandothercir-
cumstancesofthecase.
It isfurtherheld bythehigh court that hearingon the
question of quantumof punishment is notan empty formal-
ity. Itisa statutoryincumbencyupon thecourttoprovide
anopportunityofhearingtotheaccusedonthequestionof
sentence unlessthe court proposes torelease the accused
on good conductorafteradmonition asprovided under Sec-
tion 360of the CrPC. It is further held bythe high court
thattheright tobeheardonthequestionofsentencehasa
beneficialpurpose,foravarietyoffactsandreasonstobe
heardon,thequestionandconsiderationsofsentencebear-
ing upon the sentencing process: The social compulsions,
thepressureofpoverty,theretroactiveneeds,theinstinct
for extralegal remedydueto a sense ofbeing wronged, the
lackofmeanstobeeducatedanddifficultiesofhonestliv-
ing,parentage,heredity,personalandsocialenvironments.
ShriBarothasalsoreferredtotheobjectofcriminaljuris-
prudenceforthe punishment. Lastly,ShriBarot has argued
to impose minimum punishment on the accused who are held
guiltybythiscourt.
148.Ontheotherhand,specialpublicprosecutorShriSC
Shah hasarguedthat alltheaccusedweremembersofunlaw-
ful assemblyand being members ofunlawful assembly, they
have committed such a heinous act in which 33 humans
havelosttheirlives.ShriShahhasarguedthatallthevic-
tims wereinnocent,they were not in aposition to protect
themselvesandthereforetheyhadtakenshelterinoneroom,
in which themain incident had takenplaceand the present
accused persons have, by arming themselves with deadly
weapons, pouredinflammableliquid on the houseandset it
onfire;andinsuch asituation,topreventcommunal riots
from taking place in our country, maximum punishment is
required tobe imposed.
ShriShahhasfurtherarguedthatthecourthasheldguilty
all the 31 accused under Section 302 r/w Section 149 and
thusitistherarestofrarecasesinwhichcapitalpunish-
ment may be imposed. In support of his say, Shri Shah has
cited thecase ofMahesh &etc vs State ofMadhya Pradesh,
reportedinAIR1987 Supreme Court1346,whereinitis held
by the Supreme Court of Indiathat it will be a mockery of
justicetopermittheaccused toescapetheextremepenalty
of law whenfaced with such evidence andsuch cruel acts.
ShriShahhasalsocitedthecaseofRanjeetSingh&Another
vs State of Rajasthan, reportedin AIR 1998Supreme Court
672, wherein it is observed by the SupremeCourt of India
that the manner in which the entire family was eliminated
indicatesthattheof-
fence was deliberate
anddiabolical.Itwas
predetermined and
cold-blooded. It was
absolutely devilish
and dastardly. Inno-
cent children were
done to death with
lethal weapons when
theywerefastasleep.
Thesentenceofdeath
awarded cannot
therefore besaid to
beinappropriate.
ShriShahhasalso
cited the case of C.
Muniappan & Ors vs
State ofTamil Nadu,
reported in(2010) 9
Supreme Court Cases
567,whereinitisob-
servedbytheSupreme
CourtofIndiathatthe
deathsentencecanbe
giveninrarestofrarestcasesifthe“collectiveconscience”
of acommunity issoshockedthatdeath penalty istheonly
alternative.The“rarestofrarecases”comeswhenaconvict
would be amenace and threat to the harmonious and peace-
ful coexistenceofsociety;when theaccused deliberately
indulges in a planned crime without any provocation and
meticulously executes it, the death sentence may be the
mostappropriatepunishment.Referringtoallthecitedcases,
ShriShahhasrequestedthecourttoimposecapitalpunish-
ment considering the nature of the crime and position of
victims.
149. This court has given itsthoughtful consideration
on the arguments advanced by both sides and also consid-
ered the law laid down by the Supreme Court of India and
high court of Gujarataswell as by thehigh courtof Tamil
Nadu.Thoughthisindeedisoneoftheaspectsofthematter,
COVER STORY

18
COMMUNALISM COMBAT
DECEMBER 2011
itcannotbeignoredthattheaccusedarebeingconvictedby
virtueoftheprovisionsofSection149oftheIPC.Theexact
roleplayedbyeachaccusedintheentireincidentisnotspe-
cificallyproved.Thoughthereisnorulethatthedeathsen-
tence cannotbeawarded where theconvictionof an offence
punishableunderSection302oftheIPCisrecordedwiththe
aidofSection149of theIPC, consideringall therelevant
aspects ofthe matter, Iamoftheopinionthatthe extreme
penaltyofdeathisnotcalledforinthiscase.
150.Itisestablishedfactthatmuchdamagewascausedto
theproperties.Muchdestructionofthepropertywasdone.As
such,Ithinkitpropertoimposeappropriatesentencesoffine
also,inadditiontothesubstantivesentences.Itwouldalsobe
appropriatetoawardcompensationtobepaidtothevictims,
keepinginmindtheprovisionsofSection357oftheCrPC.
151.Takingintoconsiderationalltherelevantaspectsof
thematter,inmyopinion,thefollowingsentenceswillmeet
theendsofjustice.Intheresult,thefollowingorderispassed.
ORDER
1. The accusedpersons named below
are hereby sentenced under Section
235(2) of theCriminal Procedure Code
to undergo the punishment, as men-
tioned hereunder, for the charges
proved against them:
Sessions Case No. 275/2002
1) (S. No. 1) Patel Rameshbhai
Kanjibhai,23,Sardarpura
2)(S.No.2)PatelChaturbhaialias
BhurioVitthalbhai,28,Sardarpura
3) (S. No. 5) Patel Jayantibhai
Mangalbhai,21,Sardarpura
4) (S. No. 6) Patel Amratbhai
Somabhai, 25,Sardarpura
5) (S. No. 11) Patel Jagabhai
Davabhai,55,Sardarpura
6) (S. No. 14) Patel Kacharabhai Tribhovandas, 55,
Sardarpura
7)(S.No.16)PatelMangalbhaiMathurbhai,65,Sardarpura
8)(S.No.18)PatelBhikhabhaiJoitabhai,50,Sardarpura
9)(S.No.27) PatelMathurbhaiRamabhai, 52,Sardarpura
10) (S. No. 28) Patel Sureshbhai Ranchhodbhai, 22,
Sardarpura
11)(S.No.30)PatelTulsibhaiGirdharbhai,34,Sardarpura
12)(S.No.31) Patel RamanbhaiJivanbhai Vanabhai,29,
Sardarpura
13) (S. No. 32) Patel Rajeshbhai Karshanbhai, 22,
Sardarpura
14)(S.No.33)PatelRameshbhaiKantibhai,24,Sardarpura
15)(S.No.34)PatelMadhabhaiVitthalbhai,33,Sardarpura
16) (S. No. 35) Patel Sureshkumar Baldevbhai, 20,
Sardarpura
17) (S. No. 37) Patel Vishnubhai Prahladbhai, 23,
Sardarpura
18)(S.No.38)PatelRajendrakumaraliasRajeshPunjabhai
Tribhovandas,28,Sardarpura
19)(S.No.40)PatelPrahladbhaiJagabhai,23,Sardarpura
20)(S.No.41)PatelRameshbhaiRamabhai,35,Sardarpura
21) (S. No. 42) Patel Parshottambhai alias Pashabhai
Mohanbhai, 45, Sardarpura
22)(S.No.43)PatelAshvinbhaiJagabhai,21,Sardarpura
23) (S. No. 44) Patel Ambalal Maganbhai Kapoor, 54,
Sardarpura
24) (S.No. 46) Patel RameshbhaiPrabhabhai Gopalbhai,
36,Sardarpura
25)(S.No.48)PatelJayantibhaiAmbalal,43,Sardarpura
26) (S.No. 49) Patel KanubhaiJoitaram,43,Sardarpura
27) (S. No. 50) Prajapati Ramanbhai Ganeshbhai, 51,
Sardarpura
28) (S. No. 52) Patel Dahyabhai Kacharabhai, 36,
Sardarpura
29)(S.No.54)PatelMathurbhaiTrikamdas,46,Sardarpura
30)(S.No. 7)PatelDahyabhaiVanabhai,51,Sardarpura
31) (S. No. 9) Patel Kalabhai
Bhikhabhai,37,Sardarpura
2. All theaccused whose names are
mentioned inPara1 of thisorder are
convictedforthe offencepunishable
underSection143oftheIPCandeachof
themissentencedtosuffersimpleim-
prisonmentforthreemonths,andalsoto
payafineofRs500each,indefault,to
suffersimpleimprisonmentfor15days.
3. All theaccused whose names are
mentioned inPara1 of thisorder are
convicted forthe offencepunishable
underSection147of theIPCand each
of them issentenced tosuffer simple
imprisonmentforoneyear,andalsoto
payafineofRs1,000each,indefault,tosuffersimpleim-
prisonmentfor15days.
4. Accused Nos. 28, 32, 33, 34, 44, 52 of sessions case
No. 275/2002are convicted forthe offence punishable un-
der Section 144 and 148 of the IPC and each of them is
sentencedtosuffer simpleimprisonmentfortwo years, and
also topay a fine of Rs 2,000 each, in default, to suffer
simple imprisonmentfor one month.
5. All theaccused whose names are mentionedin Para 1
ofthisorderareconvictedfortheoffencepunishableunder
Section 302r/w Section 149 of the IPC and eachof them is
sentencedtosufferrigorousimprisonmentforlifeandalso
topayafineofRs5,000each,indefault,tosuffersimple
imprisonment forsixmonths.
Section 307 r/w Section 149 of the IPC and each of themis
sentencedtosufferrigorousimprisonmentfor10years,and
simpleimprisonmentforfivemonths.
It is evidence on record
that setting on fire the
cabins and houses in
Shaikh Mohalla, causing
burns to the injured as
well as to the deceased,
clearly indicates the
common object of the said
unlawful assembly. The
common object of
unlawful assembly is
clearly established by the
prosecution
COVER STORY

COMMUNALISM COMBAT
DECEMBER 2011
19
sentenced tosuffer simple imprisonment forone year, and
sentenced tosuffer simple imprisonment forone year, and
9. All the accused whose names are mentioned in Para
1 of this order are convicted for the offence punish-
able under Section 325 r/w Section 149 of the IPC and
each of them is sentenced to suffer rigorous imprison-
ment for three years, and also to pay a fine of Rs 2,000
each, in default, to suffer simple imprisonment for one
month.
10. All the accused
whose names are men-
tioned in Para 1 of this
orderareconvictedforthe
offence punishable under
Section 435 r/w Section
149 and Section 436 r/w
Section 149ofthe IPCand
each of them is sentenced
tosufferrigorousimpris-
onment for 10 years, and
also to pay a fine of Rs
3,000each,indefault,to
suffersimpleimprisonment
forfivemonths.
11. All the accused
whose names are men-
tioned in Para 1 of this
order are convicted for
the offence punishable
under Section 447 r/w
Section 149 of the IPC
and each of them is sen-
tenced to suffer simple
imprisonment for one month, and also to pay a fine of
Rs 500 each, in default, to suffer simple imprisonment
for 15 days.
sentencedtosuffersimpleimprisonmentforsixmonths,and
alsotopayafineofRs500each,indefault,tosuffersimple
imprisonment for15days.
sentencedtosuffer simpleimprisonmentfor onemonth, and
alsotopayafineofRs250each,indefault,tosuffersimple
imprisonment for15days.
sentencedtosuffer simple imprisonment forthree months,
and alsotopayafineofRs250each,indefault,tosuffer
simple imprisonmentfor10 days.
Section 295A of the IPC and each of them is sentenced to
suffersimple imprisonmentfor twoyears,and alsoto paya
fine ofRs500each, indefault,tosuffersimpleimprison-
ment for one month.
Section 153A of the IPC and each of them is sentenced to
suffersimpleimprisonmentforthreeyears,andalsotopaya
fine ofRs500each, indefault,tosuffersimpleimprison-
ment for one month.
17. All the accused
whose namesare mentioned
inPara1ofthisorderare
convicted for the offence
punishable under Section
297 of theIPC and each of
them issentenced to suf-
fersimpleimprisonmentfor
oneyear,andalsotopaya
fineofRs500each,inde-
fault,tosuffersimpleim-
prisonment forone month.
18.Noseparateorderre-
garding punishment is
passedfortheoffencepun-
ishable under Section 135
of theBombay Police Act.
19.Alltheaccusedwhose
names are mentioned in
Para 1 of this order are
hereby orderedto deposit
the amount of Rs 50,000
eachinthiscourt.
20. On deposit of said
amountbyall theaccused,
itwillbeequallypaidtothecomplainantandothervictims
of this incident as compensation under Section 357(1)(c)
oftheCodeofCriminalProcedure.
21.Allthesubstantivesentences,exceptthe sentences
ofimprisonmentforlife,shallrunconcurrently.
22. Theabove-named convicted accused personsshall be
entitledtogetbenefitofset-off,oftheperiodoftheirre-
spectivedetentionasanundertrialprisoner,duringthein-
vestigationandtrial,asprovidedinSection428oftheCode
of Criminal Procedure…
(Kum. SCSrivastava)
SessionsJudge,
Designated Court (Mehsana)
November 9, 2011
COVER STORY

Sardarpura Judgement

Recommended

Recommended

More Related Content

What's hot

What's hot (19)

Viewers also liked

Viewers also liked (15)

Similar to Sardarpura Judgement

Similar to Sardarpura Judgement (8)

Recently uploaded

Recently uploaded (20)

Sardarpura Judgement