Central Bureau Of Investigaton vs Jaswantbhai Chaturbhai Nai And … on 4 May, 2017

1 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc

JDK /RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1020 OF 2009

1. Jaswantbhai Chaturbhai Nai,
Age – 50 Years, Occ. – Agriculture,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

2. Shailesh Chimanlal Bhatt,
Age – 51 Years, Occ. – Social Worker,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

3. Ramesh Rupabhai Chandana,
Age – 45 Years, Occ. – Service,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat. .. Appellants
(Orig. Accused Nos. 1, 4
and 12)
Versus

1. The State of Gujarat
(At the instance of CBI
R.C. No. 1 of 2004)

2. The State of Maharashtra .. Respondents

WITH
CRIMINAL APPEAL NO. 1021 OF 2009

1. Rajubhai Babulal Soni,
Age – 48 Years, Occ. – Service,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

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2. Mitesh Chimanlal Bhatt,
Age – 47 Years, Occ. – Service,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat. .. Appellants
(Orig. Accused Nos.
10 and 11)

Versus

1. The State of Gujarat
(At the instance of CBI
R.C. No. 1 of 2004)

2. The State of Maharashtra .. Respondents

WITH
CRIMINAL APPEAL NO. 1022 OF 2009

1. Govindbhai Nai,
Age – 44 Years, Occ: Service
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

2. Bipinchand Kanaiyalal Joshi
@ Lala Doctor,
Age – 46 Years, Occ. – Service,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

3. Somabhai Koyabhai Gori,
Age – 46 Years, Occ. – Service,
Residing at Godhra, Santrampur,
District Panchmahal,
State of Gujarat. .. Appellants
(Orig. Accused Nos.
2, 6 17)

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Versus

1. The State of Gujarat
(At the instance of CBI
R.C. No. 1 of 2004)

2. The State of Maharashtra .. Respondents

WITH
CRIMINAL APPEAL NO. 1023 OF 2009

1. Kesharbhai Khimabhai Vohania
Age – 43 Years, Occ. – Service,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

2. Pradip Ramanlal Modhiya,
Age – 43 Years, Occ. – Service,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

3. Bakabhai Khimabhai Vohania
Age – 45 Years, Occ. – Service,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat. .. Appellants
(Orig. Accused Nos.
7, 8 9)
Versus

1. The State of Gujarat
(At the instance of CBI
R.C. No. 1 of 2004)

2. The State of Maharashtra .. Respondents

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WITH
CRIMINAL APPEAL NO. 487 OF 2010

Mr. Radheshyam Bhagwandas Shah
Age – 31 Years,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.
(Appellant is presently in
Judicial Custody) .. Appellant
(Orig. Accused No.5)

Versus

1. The State of Gujarat

2. The State of Maharashtra

3. C.B.I., Mumbai. .. Respondents

WITH
CRIMINAL APPEAL NO. 194 OF 2011

Central Bureau of Investigation,
Special Crime Branch,
having office at A-2 Wing, 8th Floor,
CGO Complex, CBD Belapur,
Navi Mumbai. .. Appellant
(Orig. Complainant)
Versus

1. Narpatsingh Ranchodbhai Patel,
Age – 47 Years,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.

2. Idris Abdul Saiyed,
Age – 49 Years,
Residing at Gulabwadi,
Police Line, PSI, Quarters No. 1,
Hetharpalia, Junagad.

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3. Bhikhabai Ramjibhai Patel,
Age – 62 Years,
Residing at C-79,
Samrajya Society, Near Gadkhol Palia,
Post Ankleshwar, Dist. Bharuch.

4. Ramsingh Mitlibhai Bhabhor,
Age – 57 Years,
Residing at Satyaprakash Society,
College Road, Santrampur,
District Panchmahals, Gujarat.

5. Somabhai Koyabhai Gori,
Age – 42 Years,
Residing at Gochar,
Santrampur,
District Panchmahals, Gujarat.

6. R.S. @ Ramabhai Bhagora,
Age – 47 Years,
Residing at Maheru,
Taluka Bhilad,
District Sabarkatha, Gujarat.

7. Dr. Arunkumar Ramkishan Prasad,
Age – 36 Years,
Residing at Narayan Pipra,
District Siwan, Bihar.

8. Dr. Sangeeta Arunkumar Prasad,
Age – 38 Years,
Residing at Narayan Pipra,
District Siwan, Bihar. .. Respondents
(Orig. Accused Nos.
13, 14, 15, 16, 17,
18, 19 20)
WITH
CRIMINAL APPEAL NO. 271 OF 2011

Central Bureau of Investigation,
Special Crime Branch,
having office at A-2 Wing, 8th Floor,
CGO Complex, CBD Belapur,
Navi Mumbai. .. Appellant
(Orig. Complainant)

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Versus
1. Jaswantbhai Chaturbhai Nai.
Age – 50 Years,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.
2. Govindbhai Nai,
Age – 40 Years,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat.
3. Shailesh Chimanlal Bhatt,
Age – 47 Years,
Residing at Singwad,
Taluka – Limkheda,
District – Dahod,
State of Gujarat. .. Respondents
(Orig. Accused Nos.
1, 2 and 4)
……………….
Appearances :
Mr.H.H.Ponda along with Mr. Gopalsinh Advocate for the Appellants in Cri.Appeal
Solanki, Mr. Mukesh Modi, Mr. Virendra I. Nos.1020 to 1023 of 2009 and 487 of 2010
Pajwani, Mrs. Priya A.Ponda i/b Mr. and Respondent in Cri. Appeal No. 194 of
Hitesh P. Shah 2011 and 271 of 2011
Mr. H.S.Venegavkar along with Mr. Advocate for C.B.I. in Cri. Appeal Nos.194
A.L.Bhise and Mr. Tejas Dhotre of 2011 and 271 of 2011 and Respondent in
Cri. Appeal No. 1020 of 2009 to 1023 of
2009 and 487 of 2010
Mr. Arfan Sait APP for the State
Mr. Vijay Hiremath Advocate for Intervenor
……………….

CORAM : SMT. V.K. TAHILRAMANI AND
MRS. MRIDULA BHATKAR, JJ.

RESERVED ON : MARCH 17, 2017
PRONOUNCED ON: : MAY 04, 2017

JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1 Criminal Appeal No. 1020 of 2009 has been

preferred by Jaswantbhai Chaturbhai Nai, Shailesh Chimanlal

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Bhatt and Ramesh Rupabhai Chandana who are original

accused Nos. 1, 4 and 12. Criminal Appeal No. 1021 of 2009

has been preferred by Rajubhai Babulal Soni and Mitesh

Chimanlal Bhatt who are original accused nos. 10 and 11.

Criminal Appeal No. 1022 of 2009 has been preferred by

Govindbhai Nai, Bipinchand Kanaiyalal Joshi @ Lala Doctor

and Somabhai Koyabhai Gori who are original accused nos. 2,

6 and 17. Original accused no. 17 – Somabhai Koyabhai Gori

expired during the pendency of the appeal, hence, the appeal

stands abated in relation to him. He was convicted for the

offence under Sections 217 and 218 of IPC. Criminal Appeal

No. 1023 of 2009 is preferred by Kesharbhai

Khimabhai Vohania, Pradip Ramanlal Modhiya and Bakabhai

Khimabhai Vohania who are original accused nos. 7, 8 and 9.

Criminal Appeal No. 487 of 2010 is preferred by Radheshyam

Bhagwandas Shah who is original accused no. 5.

2 The appeals have been preferred by accused nos. 1, 2

and 4 to 12 against their conviction and sentence under

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Sections 143, 147, 302 read with Section 149, 376(2) (e)

(g) and 376(2)(g) of IPC. It may be stated here that original

accused no.3 – Naresh R. Modhiya expired during the

pendency of the trial. For the offence under Section 143 of

IPC, the accused nos. 1, 2 and 4 to 12 have been sentenced

to rigorous imprisonment (R.I.) for six months. For the

offence under Section 147 of IPC, they have been sentenced

to R.I. for two years. For the offence under Section 302 read

with Section 149 of IPC, they have been sentenced to

imprisonment for life and fine of Rs.2000/- on each count of

murder and in default of payment of fine, to suffer R.I. for a

further period of two years. For the offence under Section

376(2)(e) (g) of IPC, they have been sentenced to life

imprisonment and fine of Rs.2000/- each in default to suffer

R.I. for a further period of two years for having committed

gang-rape on the prosecutrix i.e. Bilkis Yakub Rasul Patel who

was pregnant at the time of the incident. For the offence

under Section 376(2)(g), they have been sentenced to R.I. for

ten years and fine of Rs.2000/- each in default, R.I. for a

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further period of two years for having committed gang-rape

on Halima Abdul Issa Ghachi and Shamim Musa Patel. In

addition, accused No. 1 has assailed his conviction under

Section 148 of IPC for which he was sentenced to R.I. for

three years. The trial Court directed the sentences of

imprisonment to run concurrently.

3 Criminal Appeal No. 271 of 2011 has been preferred by

Central Bureau of Investigation (C.B.I.) for enhancement of

sentence imposed on original accused no. 1- Jaswantbhai

Chaturbhai Nai, accused no. 2- Govindbhai Nai and accused

no.4 Shailesh Chimanlal Bhatt. Criminal Appeal No. 194 of

2011 has been preferred by C.B.I. against acquittal under

Sections 201, 217 and 218 IPC of original accused nos. 13 to

20 i.e. accused no.13 – Narpatsingh Ranchodbhai Patel,

accused no. -14 Idris Abdul Saiyed, accused no. 15-

Bhikhabai Ramjibhai Patel, accused no.16 Ramsingh Mitlibhai

Bhabhor, accused no. 17- Somabhai Koyabhai Gori, accused

no. 18 – R.S. @ Ramabhai Bhagora, accused no. 19 – Dr.

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Arunkumar Ramkishan Prasad and accused no.20 – Dr.

Sangeeta Arunkumar Prasad. As stated earlier, accused No.

17 expired during pendency of the appeal, hence, the appeal

abates as far as he is concerned. As all these appeals have

been preferred against the judgment and order dated

21.1.2008 passed by the learned Special Judge, Greater

Mumbai in Sessions Case No. 634 of 2004, we have heard all

the appeals together and they are being disposed of by this

common judgment. For the sake of convenience, the accused

are being referred to as they were referred before the trial

Court.

4 The prosecution case, briefly stated, is as under:

(I) The accused nos.1 to 12 were all residents of village

Randhikpur, District Dahod in the State of Gujarat.

Randhikpur is also known as “Singwad”. PW 24 Abdul Issa

Ghachi was the father of the prosecutrix who is PW 1 Bilkis.

Abdul Issa Ghachi was residing with his family at village

Randhikpur. He was residing in village Randhikpur along

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with his two daughters Munni and Mumtaz, three sons i.e.

Iqbal, Irfan (deceased) and Aslam (deceased) and his wife

Halima alias Alima (deceased). The prosecutrix was married

to Yakub Rasool Patel resident of Baria in District Dahod.

She had a minor daughter Saleha who was about 3 and half

years of age at the time of the incident. Though after

marriage, the prosecutrix started residing with her husband

at Devgad Baria as her father PW 24 Abdul Issa Ghachi was

dealing in buffalos and dairy, she started residing with her

father at village Randhikpur 4 to 5 months after her marriage.

Some days prior to the incident, there was “Bakri-Eid”, hence,

the prosecutrix had gone to her husband’s house at Devgad

Baria and on the next day, returned back to her father’s

home in Randhikpur. Her daughter Saleha and her husband

came with her to Randhikpur. At that time, She was

pregnant.

(II) On 27.2.2002, death of large number of “Hindu Kar

Sevaks” took place on account of burning of “Sabarmati

Express” at Godhra Railway Station allegedly by members of

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the Muslim community. On account of this, large scale riots

erupted in the State of Gujarat. A large number of lives were

lost in the communal riots which ensued. Randhikpur which

is a small village in Taluka Limkheda in Dahod District in

Gujarat, also experienced outbreak of riots. There were

incidents of arson and looting in village Randhikpur from the

morning of 28.2.2002 and consequently, there was exodus of

Muslims from the village in search of safety. The prosecutrix

along with some members of her family fled from Randhikpur.

After leaving Randhikpur, the prosecutrix and others

including some of her family members, went from village to

village. One of the persons who was in the group of

prosecutrix, was her cousin sister Shamim. Shamim was

pregnant and about to deliver a child. In the night of

28.2.2002, they stopped at village Kuwajer. There Shamim

delivered a baby girl. Next day morning, they left Kuwajer.

They stayed in the house of PW 20 Nayak for two days. They

were informed that there is danger, hence, on 3.3.2002 early

in the morning before sunrise, they started proceeding

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towards village Sarjumi via Pannivel. When they were near

Pannivel, two white vehicles in which there were about 25

people, came from Chhaparwad side towards Pannivel. When

they saw the group of prosecutrix, they stopped their

vehicles. They started shouting “Musalmanoko Maro” and

ran towards the group of prosecutrix. These persons who

came in the two white vehicles, were carrying swords, lathis

and sickles in their hands. From the group of persons who

attacked them, the prosecutrix identified accused nos.1 to

12. Accused no.4 – Shailesh Chimanlal Bhatt pulled Saleha the

daughter of prosecutrix, from her arms and smashed her on

the ground due to which Saleha died. Accused no.1

Jaswantbhai Chaturbhai Nai who was holding a sword, was

going to assault the prosecutrix with a sword, however, she

held out her hand to ward-off the blow, due to which, she

received injury on her left hand. Accused nos.1, 2 and 3

forcibly removed the clothes of the prosecutrix and

committed rape on her. First she was raped by accused no.1

– Jaswantbhai Chaturbhai Nai, then by accused no. 2 –

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Govindbhai Nai and thereafter by accused no.3 Naresh

Modhiya. The other accused persons i.e. accused nos. 5 to

12 in the meanwhile, tore off the clothes of the other females

in the group and committed rape on them and assaulted the

male members in their group. In the meanwhile, on account

of rape, the prosecutrix became unconscious. She was

unconscious for many hours. When she regained

consciousness, she found her relatives lying dead including

Shamim’s baby. The prosecutrix was totally naked. She

found one petticoat (Lengah) nearby. She wore the same and

crawled upto the hill-top and hid there. The next day

morning, she came down on the other side of the hill. There

she met one woman i.e PW 11 Sumaliben who gave her some

clothes. The prosecutrix drank water from the hand-pump

which was nearby. She saw a jeep with some persons in

uniform. Out of them, one was DW 2 Vanraj Dhingra and

another was PW 27 Natwar. She immediately ran upto them

and requested them to take her to a safe place as she was in

danger and her people had been murdered. The prosecutrix

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was brought to Limkheda Police Station where her F.I.R.

(Exh. 56) was recorded by accused no. 17 who is since

deceased. Her F.I.R. was not correctly recorded. The fact

that she was raped was not stated in the F.I.R. (Exh.56).

It is the prosecution case that though the prosecutrix

stated the names of the accused, in the F.I.R., it was

stated that she did not know any of the persons who

committed rape on them, and murdered her relatives. The

offence was registered as C.R. 59 of 2002 of Limkheda Police

Station against unknown persons. The prosecutrix was sent

for medical examination to CHC Limkheda. Meanwhile on

5.3.2002, the police carried out the inquest panchnama on 7

bodies though according to the prosecution, 14 people died in

the incident. Post mortem was carried out at the spot itself

by accused Nos. 19 and 20. The spot panchnama Exh. 124

was also drawn on 5.3.2002. The prosecutrix remained in

Limkheda Police Station till 5.3.2002. Though the

prosecutrix was available, she was not taken to the spot.

Investigation was carried out by Limkheda Police. On

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5.3.2002, the prosecutrix was taken to Godhra Relief Camp.

Godhra Relief / Refugee Camp was visited by District

Magistrate and Collector PW 18 Jayanti Ravi along with

Executive Magistrate, PW 23 Govindbhai. The prosecutrix

narrated what had happened to her and her group on

3.3.2002 to Jayanti Ravi. Jayanti Ravi told PW 23 Govindbhai

to record the statement of the prosecutrix. Accordingly, he

recorded the statement of the prosecutrix which is at Exh.

277. In her statement Exh. 277 the prosecutrix stated that

as mob had started burning houses in Randhikpur on 28 th

she along with others ran from village Randhikpur and

reached Chundadi village. They stayed at Kuwajar. The next

morning, they started for Khudra and stayed in Khudra

village for two days. After that in the morning at 4.00

a.m. they started their onward journey. On the way, there

was a kachha road at Panivela village. When they reached

at that place, about 20 people came in white cars and

attacked them. They stripped her, her sisters, her two aunts,

daughters of paternal aunts and raped them. They also

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killed some of the persons in the group. She lay on the

ground as if she was dead. The attackers thereafter left.

When she gained consciousness, she went up the hill and hid.

The prosecutrix named accused nos. 1 to 12 as some of the

persons from the mob who attacked them.

(III) From Godhra Relief Camp, the prosecutrix was sent for

medical examination to Godhra Civil Hospital on 7.3.2002.

PW 17 Dr. Rohini Katti examined the prosecutrix at Godhra

Civil Hospital on 7.3.2002. She gave history to Dr. Katti that

they ran from their village to 2 to 3 villages, thereafter, mob

attacked them on kachha road leading to Pannivel. They

killed her daughter and relatives and she was raped by three

of them from the mob that is accused nos. 1 to 3.

Meanwhile PW 18 District Magistrate Jayanti Ravi addressed a

letter to the Superintendent of Police Dahod for taking

immediate appropriate action in the matter of the

prosecutrix. Original statement of the prosecutrix recorded

by PW 23 Executive Magistrate was also sent to

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Superintendent of Police Dahod along with letter of PW 18

Jayanti Ravi. Pursuant to this, statement of the prosecutrix

was recorded by Circle Police Inspector Limkheda on

13.3.2002.

(IV) On 6th November, 2002, accused no. 18 R.S. @

Rambhai Bhagora submitted “A” Summary report stating

that the case was true but undetected and the culprits were

not found and requested for closure of the case, however,

the Court did not accept the closure report and directed to

continue investigation. In February, 2003 Limkheda Police

resubmitted “A” Summary report requesting for closure of

the case which came to be accepted by the Court.

Thereafter, the prosecutrix supported by human rights

activists filed Criminal Writ Petition No. 118 of 2003 (Exh.

61) before the Supreme Court praying that the order of

learned Magistrate accepting “A” summary be set aside and

also prayed for transfer of investigation to Central Bureau of

Investigation. The Supreme Court allowed the Writ Petition

and passed the order of transfer of investigation to C.B.I. on

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16.12.2003. Mr. K.N. Sinha, PW 72 the Officer from C.B.I.

took charge of the investigation from Gujarat Police on

1.1.2004. The C.B.I. conducted detailed investigation.

During investigation, the photographs of the dead bodies at

the spot Exhibit 59/1 to 59/17 and the camera (Article 3)

were seized under the seizure panchanamas. Photographs

Exhs. 59/1 to 59/8 with negatives were seized from PW 28

Bhavin Patel by PW 68 A.S. Tariyad under panchnama Exh.

363. Photographs Exh. 59/9 to 59/17 were seized from PW 10

Soni by PW 72 K.N.Sinha under panchnama Exh. 109. The

Camera (Art.3) was seized by PW 68 Tariyad from PW 32

Vinod Prajapati under panchnama Exh. 366. These

panchnamas were drawn in the presence of the witnesses PW

28 Bhavin Patel, PW 10 Soni and PW 32 Vinodbhai

respectively. The CBI recorded the statements of these

witnesses so also a number of witnesses including the

prosecutrix. The scene of offence panchnama i.e. spot

panchnama Exh. 131 was drawn on 13.3.2004 by CBI in the

presence of PW 73 Somabai Chauhan. The bodies were

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exhumed between 28.1.2004 to 1.2.2004. Post-mortem was

conducted and report of the postmortem and photographs

were sent to forensic laboratory for reply on 27.2.2004.

Thereafter, the CA report was received on 8.4.2004. After

completion of investigation, the CBI filed charge sheet on

19.4.2004.

5 Charge came to be framed against original

accused Nos. 1 to 20 under Section 120B of IPC. Further

charge came to be framed against accused Nos. 1 to 12 and

other unknown persons under Sections 143, 147, 148, 302

r/w 34 alternatively under Section 302 r/w 149 of IPC; 376(2)

(e) (g) and 376 (2)(g) of IPC. Further charge came to be

framed against accused Nos. 13 to 20 and other unknown

persons under Section 201 r/w 34 of IPC. Further charge

came to be framed against accused Nos. 13 to 20 under

Sections 217 and 218 r/w 34 of IPC. All the accused pleaded

not guilty to the said charge and claimed to be tried. The

defence of the accused is that of total denial and false

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implication. After going through the evidence adduced in the

present case, the learned Sessions Judge convicted and

sentenced some of the accused and acquitted some of the

accused as stated in the earlier paragraphs.

6 We have heard the learned counsel for the

respective parties. After giving our anxious consideration to

the facts and circumstances of the case, arguments advanced

by the learned counsel for the parties, the judgment

delivered by the learned Judge and the evidence on record,

for the below mentioned reasons, we are of the opinion that

in so far as accused nos. 1, 2 and 4 to 12 is concerned, no

interference is called for as far as their conviction and

sentence as imposed by the learned Trial Judge is concerned.

Accused no.3 had expired pending trial, hence, the case

against him stood abated. The case against accused no.17

also stands abated. As far as accused nos. 13 to 16 and 18

to 20 are concerned, for below mentioned reasons, we are of

the considered opinion that their acquittal under Sections 201

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and 218 IPC deserves to be set aside.

EVIDENCE OF THE PROSECUTRIX:

7 Evidence of the prosecutrix (PW 1) is the heart of

the case, though PW 8 Saddam is examined to corroborate

the fact of attack and assault, however, the prosecutrix is the

only witness on whose evidence the entire case of the

prosecution stands. There are many aspects to her evidence.

Her evidence emerges with number of facets which require

detailed scrutiny. The case in fact suffers at the starting

point with the first major flaw of dishonest investigation.

First we would like to discuss the evidence of the prosecutrix.

8 The prosecutrix in her evidence has stated that 5

to 6 years prior to the incident, she was married with Yakub

Rasool Patel, a resident of Devgad Bariya. At the time of

Godhra riot, she was staying with her father at Randhikpur

along with her parents, sisters and brothers. Saleha 3½

year old daughter of the prosecutrix was also staying with

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her at Randhikpur. The prosecutrix was 5 months pregnant

at the time of the incident. On the next day of Godhra

incident, arson and looting took place in village Randhikpur

and she was informed by her maternal aunt Bibi to leave the

village. So she left her village along with her relatives and

went to house of Kadkiyabhai, the village Sarpanch.

However, they found it unsafe there and so they moved to

village Chundadi. There Bijalbhai Damor (PW 33) provided

them food and water. Thereafter she along with her group

went to Kuwajer the same night i.e., on 28.2.2002. There,

her cousin Shamim delivered a baby girl at the house of mid-

wife PW 6 Zaitoon Atila. Thereafter, in the noon, on the next

day, i.e., on 1st March, they went to village Khudra. There

they stayed for two days with PW 20 Nanjibhai Nayak. Then,

according to the prosecutrix including new born baby of

Shamim, they were 17 persons. Then, while going to

Sarjumi, via village Chapparwad, they took kachha road

leading to Panivel. At that time, 2 white vehicles arrived

there from Chapparwad side. Nearly 25 to 30 male persons

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were in the vehicles. They were armed with weapons like

sword, sickle and sticks. They were giving slogans against

Muslims and they attacked this group of 17 persons. She

has stated that they were from Randhikpur and she

identified some of them. She took names of the accused

Nos.1 to 12 as the assailants. She stated that Shailesh Bhatt

(accused No.4) snatched her daughter Saleha and smashed

her on the rocky ground. Accused No.1 Jaswantbhai

Chaturbhai Nai, accused No.2 Govindbhai Nai and accused

No.3 Nareshkumar Ramanlal Modhiya caught her took her

beneath a tree. Jaswant Nai was carrying sword. When he

was about to hit her, she tried to ward off the blow due to

which she received injury on her left hand. Thereafter she

was raped by the three accused i.e. accused nos. 1 to 3. She

became unconscious. When she regained consciousness,

she found dead bodies of her family members. She found

her petticoat, wore it and then climbed the hillock. She

spent that day and night on the hillock and next day morning

i.e., on 4th, she went to other side of hill and descended the

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same. She met one Adivasi lady PW 11 Sumaliben.

However, she was hostile to the prosecutrix and wanted to

assault her. So the prosecutrix told her not to assault and

requested to provide some clothes. According to the

evidence of the prosecutrix, the lady provided blouse and

odni to her. The prosecutrix went and drank water from

hand pump. At that time, she saw a person (DW 2

Vanrajsingh Dhingra) standing in police uniform near one

vehicle on kachha road. So, she went to him and requested

him to save her. She told that her family members and her

daughter was killed and she was raped. He took her to

Limkheda police station in the vehicle. One more person was

in the vehicle i.e., Natwarbhai Bamnia, Homeguard (PW 27).

At the police station, she met PW 7 Madina Patel PW 19

Firoz Abdul Sattar Ghachi. She informed the police at

Limkheda police station that her family members including

daughter were killed and she and the ladies with her were

raped. She told the names of the offenders i.e. accused nos.

1 to 12. It is the case of PW 1 prosecutrix that when she

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disclosed the names of the offenders, the police objected to

the disclosure of the names and also threatened that she

would be given a poisonous injection at the hospital if she

speaks out the names and she was warned to keep mum.

The police took down her statement but it was not read over

to her. The police forcibly obtained her thumb impression.

Then, she was taken for examination to civil hospital along

with PW 7 Madina and one lady constable i.e., Ushaben

Kishori (DW 7). She narrated the facts to the medical officer

i.e, PW 9 Dr.Rakeshkumar Mahato. Thereafter, when she

came back to the police station from the hospital, she met

Abdul Sattar Ghachi, who had been taken to the spot of

offence and he informed that all her family members were

dead. The next day, she was removed to Godhra Refugee

Camp. There, she met her aunt Sugra Issa (PW 3) and also

two social workers, namely, Lateefaben and PW 5 Sharifa

Abdul Razzak Umarjee. She had handed over the clothes

worn by her to her aunt Sugra as she was wearing the

clothes given to her at the Camp. Then, she was taken to

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Godhra hospital on 7.3.2002 where she was examined by PW

17 Dr. Rohini Katti. She disclosed to Dr.Rohini that she was

raped by accused Nos.1, 2 and 3. Dr. Rohini Katti noted it

down in the case paper which is at Exh. 138. In the said

Exhibit, it is mentioned that alleged history of rape five days

back by three persons viz. Jaswantbhai Nai, Govindbhai Nai

and Naresh Modhiya (accused nos. 1 to 3), patient was at her

residence at Randhikpur on 28.2.2002, she along with her

family members ran away from Randhikpur to Chapparwad

village and then to Kuwajar village and then finally reached

Panivel. On the way to Panivel, a mob killed her relatives and

raped her. After one day, police came and rescued her. She

has further stated that there was no progress in her case,

hence, one Mukhtiyarbhai, who was an activist made an

application for her to the Supreme Court that the

investigation be transferred to CBI. She has deposed that her

statements were subsequently recorded by CBI.

9 Accused Nos.1 to 12 are the residents of

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Randhikpur. Accused Nos.13 to 18 are the police personnel

from Limkheda police station. Accused No.19 and 20 are the

Doctors, who performed the post-mortem on the 7 dead

bodies. Whether the accused Nos.1 to 12 were the assailants

or not will be tested on the basis of truthfulness and credence

of the evidence of the prosecutrix.

IDENTIFICATION OF ACCUSED NOS. 1 TO 12 BY THE
PROSECUTRIX:

10 On identification of the accused, the prosecutrix

has stated in examination in chief that she knew the accused

nos. 1 to 12 as they are the residents of Randhikpur. In

paragraph 123 in the cross, she has deposed that she knew

father of accused no. 5 Lala Vakil and accused no. 6 Lala

doctor.

11 Specific defence was taken by the accused in

paragraphs 339 to 350 in the cross-examination of the

prosecutrix. It was stated that her father was having the

business of timber and her father did not pay the amount to

accused nos. 1 and 2. Specific suggestion was made about

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each accused that there was some grudge or grievance

against these accused in the mind of the prosecutrix and her

family members and, therefore, she took opportunity to settle

the score.

12 A suggestion was given that accused no.3 Nareshkumar

Ramanlal Modhiya was running hotel and drainage water of

the hotel was running into the courtyard of the house of her

father. Though the prosecutrix has denied the fact of flowing

of drainage water, she expressed that she had knowledge

that accused no. 3 was having a hotel at Randhikpur.

Accused no. 4 has raised defence that he had taken initiative

in demolishing the illegal structures of the shops which

belonged to some Muslims and therefore, he is falsely

implicated. Similarly, accused no.12 Ramesh Chandana took

the defence that in the elections he worked in rival group

against Kadkiyabhai. In paragraph 345 suggestion was given

that accused nos. 4 and 11 had house near Randhikpur

mosque.

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13 In paragraphs 346 and 347, she admitted that her

father was a patient of accused Lala doctor. It was suggested

that her father did not make payment of medicines.

Suggestion was given that Lala doctor is handicapped since

1993 which she has rejected. Suggestion was given

regarding accused no.8 Pradip Ramanlal Modhiya that he was

running shop at Mosque, however, he had to close down the

shop.

14 From the examination in chief of prosecutrix, it is found

that she knew the accused Nos.1 to 12 by face as they all

were residents of her village Randhikpur. From the questions

put and the suggestions given in the cross-examination of the

prosecutrix, it can be gathered that the fact of identification

of these accused persons by the prosecutrix was not an issue

of challenge.

15 As regards the other accused i.e., accused Nos.13

to 18 being police personnel and the charges they are facing,

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there is no question of identification of these accused by the

prosecutrix. Same is the case with accused Nos.19 and 20,

i.e. the Doctor couple who had signed the post-mortem report

Exhs. 411A and B to Exh. 417 A B and who were admittedly

present on 5.3.2002 on the spot and conducted the post-

mortem.

THE FIR (EXHIBIT 56)

16 Mr.Ponda, the learned Counsel for the appellants,

submitted that the prosecutrix did not take the names of

accused Nos.1 to 12 in the FIR Exhibit 56 when her FIR was

recorded at Limkheda police station. She did not say

anything about the killing of her daughter while giving the

FIR. So also she has not stated anything about rape on her

by accused nos. 1 to 3 in her FIR. As per the case of the

prosecution, the prosecutrix and the accused nos. 1 to 12

are the residents of village Randhikpur and she knew them.

The incident took place on 3 rd March, 2002 yet she did not

say a word about them on 4.3.2002 when her FIR was

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recorded. She was sent for medical examination to Doctor

Mahato (PW 9) on the next day i.e. 5.3.2002 where also she

kept mum. Thereafter on 6.3.2002, her statement Exhibit

277 was recorded at Godhra Relief Camp by PW 23

Govindbhai Patel, Mamlatdar, wherein for the first time, she

has stated the names of accused nos. 1 to 12 and stated that

she and her female relations were raped and some of her

relatives were killed by them. He submitted that this

conduct of the prosecutrix is very unnatural and doubtful. If

at all, she was raped and if her 3 year old daughter was

killed, she would have said it when she gave the FIR. Mr.

Ponda further submitted that according to the prosecutrix,

when she was sent to the Doctor on 5.3.2002 with a lady

constable (DW 7 Ushaben Kishori), she told everything to

Ushaben. However, Ushaben was not examined by the

prosecution and, therefore, the defence examined her as DW

7, who deposed that nothing was narrated to her by the

prosecutrix. Neither the fact of rape nor the names of the

rapists and assailants were disclosed to the Doctor PW 9

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Dr.Mahato who examined the prosecutrix on 5.3.2002 at CHC

Limkheda. Mr. Ponda submitted that this falsifies her

evidence.

17 Mr. Ponda further pointed out that on 7.3.2002, the

prosecutrix sent a fax (Exhibit 57) to Collector of Dahod and

gave different names regarding the persons who raped her

and stated that she was raped by accused Nos. 2, 4, 5 6.

She was examined by PW 17 Dr.Rohini at Godhra hospital on

7.3.2002 and for the first time, she mentioned that she was

raped by accused Nos.1, 2 and 3. The learned Counsel

thus, argued that the evidence of the prosecutrix is very

shaky and cannot be believed.

18 Mr. Ponda pointed out that the timing of recording of

FIR (Exhibit 56) was 10.45 a.m. to 11.15 a.m. on 4.3.2002.

Learned counsel Mr. Ponda relied on the register of the FIR

i.e., Article 17 wherein the timing is mentioned. He

submitted that there was no delay in recording the

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statement of the prosecutrix i.e., FIR by Limkheda police. As

per the evidence of the prosecutrix, she reached Limkheda

police station at around 10.00 a.m. and immediately, her FIR

was recorded by accused No.17 and also two other police

constables, who were examined by the defence one of them

is DW 1 Budhsingh Patel, who is the scribe of Exhibit 56 and

the other is DW 6 Chandubhai Tariyad. The learned defence

Counsel argued that the procedure of recording of FIR in

Gujarat, is brought on record in the evidence of PW 72 K.N.

Sinha, the Investigating Officer. Three persons are involved

in recording of the FIR. Accused No.17, DW 1 Budhsingh and

DW 6 Chandubhai Tariyad, the police of Limkheda police

station were involved in recording the FIR. He submitted

that there was no time for the police at Limkheda to

manipulate the case of the prosecutrix and create imaginary

and manipulated story of mob of 500 persons attacking

them. Whatever was narrated by her was recorded ad-

verbatim in the FIR. In this FIR, she did not mention

anything about rape on her, so also she did not mention

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about the murder of her daughter Saleha by accused No.4.

She also did not mention the names of three persons, who

raped her. She did not mention the assailants were from

Randhikpur and she knew them. Therefore, her evidence

before the Court is completely false and is not to be believed.

19 Mr. Ponda pointed out that DW 1 Budhsingh, DW 6

Chandubhai Tariyad, and accused No.17 Somabhai Koyabhai

Gori, are the police personnel, who recorded the FIR. He

submitted that three people could not have stated incorrect

facts. As far as this contention is concerned, it is seen from

the evidence of DW 1 that accused no. 17 Somabhai was

loudly reading out the material which was being recorded

simultaneously by accused no.17, DW 1 and DW 6, hence,

the same contents appear in all 3 copies of the FIR. Mr.

Ponda then argued that the statements of DW 2 were

recorded on three occasions i.e., on 23.3.2002 by accused

No.16, on 14.9.2003 and on 27.9.2003 by PW 52 Inspector,

CID, Godhra yet he was not examined by the prosecution

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because they did not want the true story to come up before

the Court. Mr. Ponda stated that hence, the defence

examined him to bring the true story before the Court.

Mr.Ponda relied on the evidence of DW 2 as well as

evidence of DW 6 Tariyad. Relying on the evidence of these

defence witnesses, he argued that the evidence of the

prosecutrix was full of omissions and contradictions, if it

is compared with the evidence of police officers of

Limkheda. The evidence of DW 2 shows that there was

a mob of 500 persons. The copies of FIR scribed by

DW 1 and DW 6 also show that there was a mob of 500

persons. The prosecutrix did not state therein about rape on

her by accused nos. 1 to 3 or the fact that she identified

accused Nos. 1 to 12 as the assailants. She has also not

mentioned about killing of her daughter Saleha by accused

no.4.

20 Mr.Venegavkar while meeting the point has submitted

that the prosecutrix in her evidence has stated that her

FIR was not recorded as per her narration. Her thumb

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impression was obtained forcibly and she was threatened

when she disclosed the names of the accused. She was

threatened that a poisonous injection would be administered

to her when she was taken to the hospital for check-up. He

submitted that though the prosecution has produced the FIR,

he has admitted that the contents in the FIR are different

than her evidence before the Court. He further submitted that

the main person who recorded the FIR i.e., accused No. 17

Somabhai is made an accused and other persons, who were

writers i.e., DW 1 and DW 6, did not support the prosecution

and have stepped in the box as defence witnesses.

ASSESSMENT

21 The prosecutrix has deposed that the contents in the

FIR Exh. 56 are not true and correct. In the examination in

chief as well as in the cross-examination, she has specifically

stated that the contents in Exhibit 56 are not true and

correct. From the evidence of the prosecutrix it is found that

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she was not only illiterate but was from a remote village and

was a rustic lady. In the cross-examination, she has stated in

paragraph 79 that she cannot read time from the watch and

also cannot understand the date, month and year from the

Calendar. In paragraph 104 of the cross-examination, she

has deposed that she did not understand direction. In

paragraph 144 she has stated that she did not know that

advocates wear black coats and for the first time she came to

know this when she appeared in the Court. All this shows

that she was a simple illiterate villager, therefore, her

evidence has to be appreciated keeping this in mind.

22 The entire case is mainly based on a single witness, i.e.

the prosecutrix (PW 1). Her examination-in-chief is 14 pages

and her cross-examination runs into nearly 129 pages. PW8

Saddam Hussain Adambhai is also examined by the

prosecution on the point of actual assault which took place on

3rd March, 2002. However, the entire edifice of the

prosecution case stands on the sole evidence of PW 1.

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Therefore, her evidence is crucial. It is mixed with omissions

and contradictions, hence needs careful scrutiny. There are

some inherent and inter se omissions and contradictions. The

learned defence counsel after comparing the evidence of

other witnesses with the evidence of PW 1 has highlighted

these omissions and contradictions to dislodge evidence of

PW 1. In all 72 witnesses are examined by the prosecution

and the defence has tendered evidence of 10 witnesses. Out

of the prosecution witnesses PW 34 to PW 44 and PW 48 to

PW 72 are the police personnel or the Government officials

who gave sanction or made inquiries and investigated the

matter. We have classified the prosecution witnesses i.e. PW

1 to PW 73 for the purpose of assessing the evidence of the

prosecutrix into four categories – (1) Group of 9 witnesses

who are from village Randhikpur and they have deposed

about the riots which took place on 28 th February, 2002 at

Randhikpur, (2) The witnesses the prosecutrix met before the

incident; (3) The witnesses who she met immediately after

the incident on the next day, i.e., 4 th March, 2002; (4) The

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witnesses who met her thereafter i.e., on 5 th, 6th, 7th March,

2002 which also includes medical evidence.

23 The entire evidence of the prosecutrix is to be read on

the background of the riots and anti-muslim atmosphere at

Godhra, Limkheda, Randhikpur and the villages in the

vicinity. Her evidence cannot be read without taking into

account her fear of death and instinct of survival. In the case

like the prosecutrix, we need to look through the evidence,

sift the evidence minutely and carefully, as the truth lies

beyond the layers of omissions and contradictions and

dishonest, callous investigation. In all, eight statements of the

prosecutrix were recorded and chronologically, they are as

follows:

24 The first statement of the prosecutrix was recorded by

the police at Limkheda on 4th March, 2002 at around 10.45

a.m., which FIR is marked Exhibit 56. This was recorded in

triplicate and the other two copies are marked at Exhibit 56A

and 56B. The offence was registered at C.R. No. 59 of 2002

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at Limkheda Police Station against unknown persons.

Thereafter her statement was recorded on 6 th March, 2002 by

PW 23 Govindbhai Patel and the said statement is marked as

Exhibit 277 collectively, because it was not recorded by the

police under section 161 of Cr. P.C. Exhibit 57 is a fax

supposedly sent by her on 7 th March, 2002 which is brought

on record as her previous statement by the defence.

However, the prosecutrix has denied that she has ever sent

fax to the police which is marked as Exhibit 57. At different

times, questions were put to her on the contents in Exhibit

57, however, she has denied throughout that she had ever

sent fax Exhibit 57 to the District Magistrate. On 7 th March,

2002 PW 42 Mr.Pawar, who is from Godhra Police Station,

recorded her statement. On 13th March, accused No.16

inspector of Limkheda police station had recorded her

statement. The CBI after taking charge of the investigation,

recorded her four statements in the year 2004. Thus, the

span of investigation is from 4th March, 2002 till April, 2004.

25 The first statement of the prosecutrix is her FIR. Her

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FIR is marked at Exhibit 56 which was recorded at 10.45 a.m.

by Limkheda police station by accused No.17. As per the

evidence of the prosecutrix, when she was narrating the FIR

to the police, Abdul Sattar Ghachi, PW 7 Madina PW 19

Firoz Ghachi were present. Out of these three persons,

Madina and Firoz were examined by the prosecution. Abdul

Sattar who was the father of PW 19 had expired when the

evidence was recorded hence, he could not be examined. It

is the case of the prosecution that accused no. 17 recorded

FIR Exh. 56 and as per the procedure followed in Gujarat, FIR

is recorded in triplicate and therefore, it is marked Exhibits

56, 56A and 56B. The person who scribed the FIR Exh. 56 on

the say of accused no. 17 is DW 1 Budhsingh Mathurbhai

Patel who is a constable in Limkheda police station. DW 6

Chandubhai Tariyad, a police constable, was also present

when Exhibit 56 was prepared and he scribed one of copies

(Exh.56A) of Exh. 56.

26 It is to be noted that the police from Limkheda police

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station did not support the prosecution. At the cost of

repetition the contents in the statements of the prosecutrix

which are at Exhs. 56 and 277 are reproduced to get a clear

idea of variance and manipulation. In Exhibit 56, she has

stated that along with her sisters Mumtaz and Munni,

brothers Aslam and Irfan, daughter Saleha, father Abdul Issa,

mother Alima and uncles Majidbhai Yusuf Musa, aunt Akila,

Aminaben, cousins Shamimben and Mumtazben and

Madinaben, 3 years old son Hussainbhai of Shamim, left

Randhikpur and went to Chundadi. She has stated that on

3.3.2002, when she was going to Panivel, at 11 O’clock, a

mob of 500 persons armed with sticks attacked them. Her

two sisters Shamim and Mumtaz were raped. They wanted to

rape her. However, when she informed she was pregnant,

they left her. She fainted and when she regained

consciousness, she found dead bodies of the people from her

group around her. Then she spent night on the hillock. The

next day, she came down and drank water at a hand pump

when she saw a jeep where a police officer was there and on

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her request, she was dropped at Limkheda police station.

27 After going through the contents of Exhibit 56 and her

evidence, we find that her evidence is different than the

contents in the FIR (Exh. 56). In the cross-examination, this

fact was brought on record and was highlighted elaborately

by the learned Counsel Mr.Ponda. There are many

contradictions in her evidence and her FIR.

28 Significantly, all the police personnel from Limkheda,

who were present on 4/5/6th March, 2002 and who attended

the prosecutrix on those days, were either accused or were

examined by the defence as defence witnesses and none of

them supported the case of the prosecution. On the contrary,

some police officers like accused Nos.13, 15, 16 and 17 were

prosecuted by the CBI. Accused 17 who took down the F.I.R.

has been convicted under Sections 217 and 218 IPC. All

these facts need to be given due weightage against the

accused and the credential of these defence witnesses is to

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be assessed on this background.

29 There is variance to a great extent in the contents in the

FIR (Exh. 56) and the examination-in-chief of PW 1 the

prosecutrix. The contents in the FIR Exh. 56 are not admitted

by the prosecutrix. She has stated that when she went to

Limkheda police station on 4.3.2002 she informed about the

incident of killing of her relatives and rape on her and the

ladies in her group. That the FIR was recorded and offence

was registered under section 302 and 376 of Indian Penal

Code is an important fact, which is proved by the prosecution

on the basis of Exh. 56. This information has set the criminal

law in motion. However, it appears that the investigation did

not take place immediately as it was expected. Her evidence

that her group was attacked at Panivel on 3.3.2002 and

many of her family members were killed and ladies were

raped is corroborated by Exhibit 56. In this case, the truth

and falsehood are mixed up in such a manner that at every

stage of the evidence, the truth is hidden under layers of

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intentional laxity, omissions, contradictions and falsehood

and the truth is required to be unearthed. As per the inquest

panchanama at Exhibit 123, 7 corpses were found in jungle of

Kesharpur on 5.3.2002. This physical fact of finding of dead

bodies of relatives of the prosecutrix is the most important

corroboration to the evidence of the prosecutrix.

30 It also cannot be lost sight of that as the investigation

by Gujarat police was not proper, the prosecutrix approached

the Supreme Court and the Supreme Court transferred the

investigation to CBI. Looking to all these facts, we hold that

the FIR Exh. 56 was not correctly recorded and facts have

been suppressed and twisted therein.

STATEMENT OF THE PROSECUTRIX DATED 6.3.2002 (EXH.

277) TO PW 18 DISTRICT MAGISTRATE JAYANTI RAVI :

31 Mr. Venegavkar relied on Exh. 277 which is a statement

given by the prosecutrix on 6.3.2002. He submitted that this

statement corroborates the evidence of the prosecutrix. This

statement was recorded by PW 23 Mamlatdar / Executive

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Magistrate Govindbhai on directions of PW 18 Jayanti Ravi

who was the Collector and District Magistrate Godhra. In the

statement Exh. 277 dated 6.3.2002, the prosecutrix has

stated that mob started burning houses in Randhikpur

Village, hence, they left the village. She has given a

narration of her journey from Randhikpur along with persons

from her group and she said that 20 persons came in two

white vehicles and attacked them at 12 noon. They stripped

the females in the group including her and raped them. They

killed some persons in the group. When she gained

consciousness, she went up the hill and hid herself.

Thereafter, she reached Limkheda in police jeep. The

prosecutrix disclosed the names of the 12 accused as

assailants i.e accused Nos. 1 to 12. This statement was given

three days after the incident. The names of the assailants i.e

accused Nos. 1 to 12 are coming on record for the first time

after the incident in Exh. 277. In Exh. 277 the prosecutrix has

mentioned that she and other females were raped and her

relatives were killed by a group of 20 persons, who arrived on

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the spot in two white vehicles. We consider it as an

immediate disclosure of the names of accused and what was

not recorded in FIR exhibit 56 is stated in this statement, i.e.,

exhibit 277.

32 The statement Exh. 277 was recorded on 6.3.2002 by

PW 23 Govindbhai Patel under the direction of Collector

Jayanti Ravi (PW18). Jayanti Ravi visited the Godhra Relief

Camp on 6.3.2002. Jayanti Ravi has stated that she came

across several complaints, one of them was of the

prosecutrix. Jayanti Ravi learnt from the prosecutrix that

while she and her relations were escaping from violence they

were attacked by a mob. The prosecutrix mentioned the

names of the attackers, hence, Jayanti Ravi directed PW 23

Govindbhai Patel to record the statement of the prosecutrix,

pursuant to which the said statement was recorded.

SECTION 157 OF THE EVIDENCE ACT VIS-A-VIS EXH.277:

33 At this stage, it is necessary to deal with the question of

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law raised by Mr.Ponda in relation to this statement (Exh.

277). This statement is marked Exhibit 277 by the trial Court.

However, Mr.Ponda argued that this statement cannot be

used by the prosecution for the purpose of corroboration

under section 157 of the Evidence Act but it can be used only

for the purpose of contradiction by the defence. He submitted

that admittedly PW 23 Patel is not a police person, he was

working as an Executive Magistrate. Mr. Ponda submitted

that hence, he cannot be said to be an authority legally

competent to investigate and moreover the statement was

not recorded immediately after the incident, hence, it cannot

be looked into. Mr.Ponda has objected to its admissibility on

two grounds : (i) the statement was not recorded by an

authority legally competent to investigate and (ii) the

statement was not recorded at or about the time, the incident

took place. Thereafter, Mr. Ponda objected to admissibility of

Exh. 277 on the ground that exhibit 277 is not the original

document as it is a photocopy of the original statement of the

prosecutrix. Mr. Ponda reiterated that in view of these facts

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the statement Exh. 277 of the prosecutrix cannot be relied on

by the prosecution for corroboration.

34 Mr. Ponda further submitted that this statement cannot

be considered for corroboration because it is neither

immediate disclosure by the prosecutrix nor it is recorded by

an authority who is competent to investigate. So he

submitted that the statement can be used by the defence

only for the purpose of omissions and contradictions which

disclose that the prosecutrix has left out important material

facts which took place at the time of incident. This, according

to Mr. Ponda, shows that the prosecutrix was not present at

the time of the incident.

35 Mr.Ponda has relied on the cross-examination of PW23

Govindbhai Patel in relation to the said statement marked

Exhibit 277. He relied on the omissions which are brought on

record in paragraph 19 of the evidence of PW 23 Govindbhai

Patel in respect of the said statement Exh. 277 which is dated

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6.3.2002. He also submitted that out of omissions, omission

Nos.4, 7 and 8 are important. They are thus:

Omission No.4 – Shamim was about to deliver;

Omission No.7 – Saleha was smashed by accused
No.4;

Omission No.8 – accused Nos.1, 2 and 3 who raped
her were from Randhikpur.

36 As far as the above omissions are concerned, it is

noticed that this statement of the prosecutrix is very brief.

The prosecutrix has briefly stated about her journey from

Randhikpur to the kachcha road and about the incident itself.

She may not have stated that Shamim was about to deliver

but she has stated about rape on them that her relations

were murdered which included her daughter. She may not

have mentioned that accused no. 4 smashed her daughter

but she has stated that her relations were murdered. Her

daughter also fell in the cateogry of relations. Thus this

omission is not material. As far as not stating that accused

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nos. 1 to 3 were from Randhikpur on perusal of Exh. 277, we

find that she has categorically stated that all 12 accused i.e.

including accused nos.1 to 3 were from Randhikpur. Thus,

there was no basis, to raise this contention.

37 On section 157, Mr.Ponda has submitted that the

statement has to be recorded by the authority which is

competent to investigate. The powers of investigation are to

be allotted to that authority otherwise the statement cannot

be taken into consideration. In order to substantiate his

submissions on this point, he relied on the following

judgments:

i) Kumaramuthu Pillai and others vs. Emperor, AIR 1919

MADRAS 487.

ii) Tubarak Mandal vs. The King (AIR 36 1949 Calcutta

629.

iii) Thakurji Bhai Budhsen and anr vs. Parmeshwar Dayal

Ors. AIR 1960 All 339.

iv) While arguing on the first part of the section especially

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on the phrase ‘at or about the time” that is a statement can

be taken into consideration only if it is made at or about the

time of occurrence of the fact, he relied on Rameshwar vs.

State of Rajasthan, AIR 1952 SC 54.

(v) Nathuni Yadav and anr. vs. State of Bihar and anr. ,

reported in AIR 1997 SC 1808.

(vi) Ramashray Yadav Ors. vs. State of Bihar AIR 2006 SC

201.

38 Mr. Ponda pointed out that in the case of Kumaramuthu

Pillai and others vs. Emperor (supra) , it is held that ‘legally

competent to investigate’ means having power under some

law, statutory or otherwise. A bank authority, if holding

enquiry cannot be considered as legally competent to

investigate. In the said decision, a report about a fact was

made 24 hours after it took place and therefore, it was not

considered at or about the time of the occurrence of the fact,

hence, it was not taken into consideration.

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39 In the case of Tubarak Mandal vs. The King (supra) , a

statement was made by a victim girl 10 days after the

occurrence and so it was held that it cannot be held

admissible in evidence to corroborate under section 157 of

the Act and if that would have been made before the

authority which is legally competent to investigate, then it

would be admissible.

40 The Division Bench of Allahabad High Court in the case

of Thakurji Bhai Budhsen (supra) , took the view that the

corroborative value of the previous statement depends upon

the fulfillment of the conditions laid down in section 157 and

it is of a varying character depending upon the

circumstances of each case.

41 The Supreme Court in the judgment in the case of

Rameshwar (supra) which is authored by Justice Vivian Bose,

has discussed the issue as follows:

“26. That the evidence is legally admissible as evidence of

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conduct is indisputable because of Illustration (j) to S.8,
Evidence Act which is in these terms:

‘The question is, whether A was ravished. The facts that,
shortly after the alleged rape she made a complaint relating
to the crime, the circumstances under which, and the terms
in which the complaint was made are relevant.”
But that is not the whole problem, for we are concerned
here not only with its legal admissibility and relevancy as to
conduct but as to its admissibility for a particular purpose,
namely, corroboration. The answer to that is to be found in S
157, Evidence Act, which lays down the law for India.”

The Supreme Court observed that the words “at or

about the time” in section 157 must receive a pragmatic and

liberal construction. It held thus:

“The principle is that the time interval between the
incident and the utterance of the statement should not
be such as to afford occasion for reflection or even
contemplation”.

42 The case of Rameshwar was relied on in the State

of Tamil Nadu vs. Suresh and anr., AIR 1998 Cr. L.J. 1416 .

In the case of Suresh (supra), in relation to “at or about the

time” the Court has taken a view that –

“at or about the time when the fact took place,
section 157 of the Act should be understood in the
context according to the facts and circumstances of
each case”.

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For the said purpose, the ratio laid down in Rameshwar

vs. State of Rajasthan is relied on.

43 Mr. Ponda placed reliance on the decision of the

Supreme Court in the case of Nathuni Yadav (supra). He

placed reliance on paragraphs 13 and 14 thereof which are as

under:-

13. The words ‘at or about the time’ in Section 157 of the
evidence Act are the crucial words to judge the time
when the statement was made. Whether the statement
was made at or about the time of the incident can be
decided on the facts of each case. No hard and fast rule
can be laid down for it. However, those words ‘at or
about the time’ in Section 157 must receive a pragmatic
and liberal construction. The principle is that the time
interval between the incident and the utterance of the
statement should not be such as to afford occasion for
reflection or even contemplation. If the time interval was
so short as between the two that the mind of the witness
who made the statement was well connected with the
incident without anything more seeping into it, such
statement has a credence, and hence can be used,
though not as substantive evidence, as corroborating
evidence, on the principle adumbrated in Section 157 of
the Evidence Act.

14. Vivian Bose J. has observed in Rameshwar v. State of

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Rajasthan : 1952 Cri L.J. 547 that “there can be no hard
and fast rule about ‘at or about’ condition in Section 157.
The main test is whether the statement was made as
early as can reasonably be expected in the
circumstances of the case and before there was
opportunity for tutoring or concoction”. We respectfully
follow the aforesaid observation.

[ Emphasis Supplied ]

44 Thereafter, Mr. Ponda placed reliance on the

decision of the Supreme Court in the case of Ramashray

Yadav Ors. Vs State of Bihar (supra). He placed reliance

on paragraphs 8 and 9 thereof which read as under:-

“8. Section 157 of the Evidence Act reads as under :

157. In order to corroborate the testimony of a witness,
any former statement made by such witness relating to
the same fact, at or about the time when the fact took
place, or before any authority legally competent to
investigate the fact, may be proved.’

The import of this Section was examined and explained
in considerable detail in State of Tamil Nadu v. Suresh
and Anr
. : 1998 Cri L.J. 1416 and paragraphs 26 to 28 of
the reports are being reproduced below :

’26. The section envisages two categories of statements
of witnesses which can be used for corroboration. First is
the statement made by a witness to any person ‘at or
about the time when the fact took place’. The second is
the statement made by him to any authority legally

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bound to investigate the fact. We notice that if the
statement is made to an authority competent to
investigate the fact such statement gains admissibility,
no matter that it was made long after the incident. But if
the statement was made to a non-authority it loses its
probative value due to lapse of time. Then the question
is, within how much time the statement should have
been made. If it was made contemporaneous with the
occurrence the statement has a greater value as res
gestae and then it is substantive evidence. But if it was
made only after some interval of time the statement
loses its probative utility as res gestae, still it is usable,
though only for a lesser use.

27. What is meant by the expression ‘at or about the
time when the fact took place’? There can be a narrow
view that unless such a statement was made soon after
the occurrence it cannot be used for corroboration. A
broader view is that even if such statement was made
within a reasonable proximity of time still such statement
can be used for corroboration. The legislature would not
have intended to limit the time factor to close proximity
though a long distance of time would deprive it of its
utility even for corroboration purposes.

28. We think that the expression ‘at or about the time
when the fact took place’ in Section 157 of the Evidence
Act should be understood in the context according to the
facts and circumstances of each case. The mere fact that
there was an intervening period of a few days, in a given
case, may not be sufficient to exclude the statement
from the use envisaged in Section 157 of the Act. The
test to be adopted, therefore, is that : Did the witness
have the opportunity to concoct or to have been tutored.

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In this context the observation of Vivian Bose, J. in
Rameshwar v. State of Rajasthan AIR 1852 SC 54 is
apposite :

‘There can be no hard and fast rule about the ‘at or
about’ condition in Section 157. The main test is whether
the statement was made as early as can reasonably be
expected in the circumstances of the case and before
there was opportunity for tutoring or concoction.’

(emphasis supplied)’

9. In Smt. Chander Kala v. Ram Kishan and Anr. :
1985 Cri.LJ 1490, an incident which took place on 10th
March was narrated by the victim to some of her
colleagues on 11th March and it was held that the
testimony of her colleagues was admissible under
Section 157 of the Evidence act and could be used for
the purpose of seeking corroboration to the testimony of
the victim. Thus, the testimony of PW.5 Arjun Prasad who
had reached immediately after the incident had
happened and to whom PW.12 Sidheshwar Prasad had
narrated the incident and the role played by the three
appellants in causing the death of his brother by firing
upon him lends complete corroboration to the testimony
of PW.12 Sidheshwar Prasad.”

45 Mr. Ponda pointed out that in the case of

Ramashray, the statement was treated as corroboration as

the statement under Section 157 was recorded on the next

day of the incident. Mr. Ponda pointed out that in the present

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case, the incident has occurred on 3.2.2002 and the

statement of the prosecutrix which is stated to be under

Section 157 of the Evidence Act was recorded on 6.2.2006.

He submitted that the gap of time between the incident and

the recording of statement being a number of days, the

statement cannot be regarded as one under Section 157 of

the Evidence Act.

46 Mr.Venegavkar, the learned Prosecutor, opposed

these submissions and submitted that while considering the

scope of section 157, this statement which is recorded by PW

23 who is an Executive Magistrate / Mamlatdar is admissible

and can be considered under section 157 of the Evidence Act.

47 Mr.Venegavkar on the point of admissibility of Exh.

277 recorded by PW23 Govindbhai Patel, has submitted that

the prosecutrix narrated the facts to District Magistrate /

Collector PW 18 Jayanti Ravi and Jayanti Ravi told PW 23

Govindbhai to record the statement of the prosecutrix. He

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submitted that thus, it is a statement which is recorded by

PW 18 District Magistrate Jayanti Ravi, thus this statement is

recorded by the person who was legally competent to

investigate a fact. He relied on section 17 of the Gujarat

Police Act wherein a District Collector has overall power to

supervise the police. He argued that PW 18 Jayanti Ravi was

the District Magistrate and Collector of Godhra and PW 23

was the Mamlatdar and Executive Magistrate working under

PW 18. Though it is mentioned that the statement was

recorded by PW 23, it is seen from the evidence that PW 23

was only a scribe. In fact, the statement was made before

Jayanti Ravi and it was recorded by PW 23 Govindbhai at her

instance and as per section 17 of the Gujarat Police Act, PW

18 Jayanti Ravi was legally competent to investigate a fact.

Section 17 of Gujarat Police Act reads thus:

17. Control of District magistrate over Police Force in
district:

(1) The District Superintendent and the Police Force
of a district shall be under the control of the District
Magistrate.

(2) In exercising such control the District Magistrate

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shall be governed by such rules and orders as the
State Government may make in this behalf.

Mr. Venegavkar submitted that the word

‘investigation’ is to be construed in liberal sense. It is not

restricted to police investigation but it may be an

investigation of a fact but not restricted to an offence and,

therefore, the statement recorded by Jayanti Ravi can be

admitted in the evidence. He further submitted that the said

statement was made at or about the time of the occurrence

of the fact. The incident of assault had taken place on

3.3.2002 and thereafter, the prosecutrix made this statement

on 6.3.2002 i.e., at the first opportunity she disclosed the

names of the accused. He argued that her FIR (exhibit 56)

dated 4.3.2002 is not the FIR in true sense and the

prosecutrix has deposed accordingly. She was in Limkheda

Police Station till 5.3.2002. During this period, the Limkheda

Police did not take down a true account of the incident,

hence, she was helpless. She was sent to Godhra Relief

Camp on 5.3.2002, hence, when the District Magistrate met

her on 6.3.2002, it was the first opportunity for her to give

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true account of the incident. Taking into account the

sequence of events, making a statement by the prosecutrix

on 6.3.2002 can be said to be at or about the time of the

incident.

48 Mr. Venegavkar further submitted that in Exh. 277,

there is no omission pertaining to rape but there is omission

regarding killing of the daughter, however, she has stated

that some of her group were killed. This shows that there is a

mention of basic important facts, though the details are not

mentioned. Thus, credence and reliability of the evidence of

the prosecutrix can be tested if the said statement dated

6.3.2002 recorded by PW23 Patel, as a whole, is made

admissible in evidence. Section 157 states which statement

can be made admissible and can be used for the purpose of

corroboration. Section 157 reads as follows:

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

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before any authority legally competent to investigate
the fact, may be proved.

[ Emphasis supplied ]

49 Section 157 is in two parts. The principle behind

the rule of corroboration is that he who is consistent,

deserves to be believed and therefore, if at all a person has

made any statement at or about the time of the occurrence of

the fact, then, the said immediate disclosure is truthful and

carries weightage in the evidence. It is assumed that when a

person discloses or narrates facts immediately after the

occurrence, then there is no time for manipulation or

concoction. Therefore, statement can be considered for

corroboration, if the fact stated in the said statement, is the

same fact stated before the Court. The disclosure by the

person may be written or oral. However, he has something to

say about the fact that either he has experienced himself or

he has witnessed the incident or he is a party to that

particular act. Under Section 157 even if the statement is

recorded by an authority who is competent to investigate,

then, that statement is considered admissible in the evidence

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and can render corroboration. The time of disclosure of the

fact is a factor which is made into two categories of the

statements u/s 157 of the Evidence Act i.e ‘at’ or ‘about’ the

time when the fact took place. There is no requirement of the

recording of the said fact by authority competent to

investigate if the statement is recorded ‘at’ or ‘about’ the

time the fact took place i.e. at or about the time of the

incident. From the decisions cited above, it is clear that for a

statement to be admissible under Section 157, it is not

necessary that the statement has to be recorded on the day

of the incident, however, if a statement is made after much

delay, then it becomes admissible only if it is recorded by a

person who is competent to investigate.

50 As far as the contention in relation to Section 157

and statement of the prosecutrix Exh. 277 is concerned, in

the very decision on which Mr. Ponda placed reliance i.e

Nathuni, it is stated that there can be no hard and fast rule

about the “at or about” condition in Section 157 and the

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words “at or about” must receive a pragmatic and liberal

construction. In Ramashray, it is observed that ‘The mere

fact that there was an intervening period of a few days in a

given case, may not be sufficient to exclude the statement

from the use envisaged in section 157 of the Act’. It is further

observed that ‘The main test is whether the statement was

made as early as can reasonably be expected in the

circumstances of the case’. Thus the main test is whether the

statement was made as early as can be reasonably be

expected in the circumstances of the case. It was further

observed in Ramashray that the legislature would not have

intended to limit the time factor to close proximity though a

long distance of time would deprive it of its utility even for

the purpose of corroboration. The prosecutrix was in

Limkheda Police Station on 4th and 5th March, 2002.

Thereafter she was taken to Godhra Relief Camp. In the

camp, on 6.3.2002, PW 18 District Magistrate and Collector

Jayanti Ravi met the prosecutrix. When the prosecutrix

narrated the incident to her, Jayanti Ravi directed PW 23

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Executive Magistrate / Mamlatdar Govindbhai to record the

statement of the prosecutrix. The atmosphere in Limkheda

Police Station was hostile to the prosecutrix, hence, there was

no occasion on 4.3.2002 and 5.3.2002 for the prosecutrix to

record her statement giving true and correct facts. The

moment, the prosecutrix was in a free and fair atmosphere at

the Godhra Relief Camp, she immediately narrated the

incident to PW 18 District Magistrate and Collector Jayanti

Ravi which statement is at Exh. 277.

51 In the present case, PW 23 Govindbhai Patel who

recorded the statement of the prosecutrix on 6th March, 2002,

was an Executive Magistrate, who accompanied PW18 Jayanti

Ravi, the District Magistrate, Godhra to the Godhra Relief

Camp on 6.3.2002 and on direction of Jayanti Ravi, PW23

Patel recorded the statement of the prosecutrix. He was not

a person competent to investigate but PW 18 Jayanti Ravi in

view of Section 17 of the Gujarat Police Act had control over

the police force which is an investigating agency. Moreover,

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we are not agreeable to the contention that the disclosure

was not at or about the time of the occurrence of the fact.

The incident of killing and rape has taken place on 3.3.2002

in the morning. The prosecutrix remained on the hillock

overnight out of fear as her relatives were massacred in

broad daylight. She went to Limkheda police station on

4.3.2002 and as per her case, the police did not support her

but they threatened her and tried to suppress her case.

Thereafter, she was sent for medical examination on

5.3.2002 where a male Doctor examined her. This Doctor i.e.

PW 9 Dr. Mahto did not understand Gujarati and the

prosecutrix did not understand Hindi, hence, there was a

communication gap between them. Thereafter the

prosecutrix was sent to Godhra relief camp. There, she met

other ladies and as she was crying, they enquired and she

disclosed this fact of killing of her relatives and the rape

committed on her and other females in the group.

Undoubtedly, the trauma of sudden attack and murder of her

relatives and of the rape was so horrifying that the delay of

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two days in the disclosure of the true facts by the prosecutrix

cannot be said to be late. The disclosure was definitely

proximate to the fact of occurrence. In any event, the

sequence of events was such that the prosecutrix could not

narrate the true facts till 6.3.2002.

52 Section 162 controls section 157 of the Code of

Criminal Procedure. The statements recorded by the police

or the investigating agencies who are competent to

investigate are under section 161 of the Code of Criminal

Procedure and therefore, those statements though recorded

immediately after the offence cannot be used under section

157 of the Evidence Act for corroboration though police are

competent to record the statements, but can be used only for

contradicting the witness who made the statement. The

statements which can be used for corroboration recorded by

the competent authority are necessarily not the statements

recorded under section 161 but they are otherwise recorded

by the authority competent to record under other provisions

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of the Act or Code. For example, a statement recorded by an

authority competent to investigate under section 164 of the

Code of Criminal Procedure or under section 9 of the

Evidence Act i.e., by the Executive Magistrate at the

identification parade or by a Magistrate authorized to record

the dying declaration are the statements admissible under

section 157 of the Evidence Act, which can be used for

corroboration. In our opinion, the statement Exh. 277 is

covered by Section 157 of the Evidence Act, hence, it can be

used as corroboration.

53 Thereafter Mr. Ponda objected to admissibility of

Exh. 277 on the ground that Exh. 277 is not the original

document as it is a photocopy of the original statement of the

prosecutrix. Learned Counsel Mr. Venegavkar while arguing

the admissibility of secondary evidence of the statement

(exh.277) pointed out how CBI inspite of their best efforts

could not procure the original document hence, office copy of

the statement is produced. The prosecution examined

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witnesses and relied on correspondence to establish the fact

that the original document i.e., statement dated 6.3.2002

was not traced in spite of bonafide endeavour of the

investigating agency. The said statement of the prosecutrix

dated 6.3.2002, recorded by Executive Magistrate PW23

Govindbhai was submitted by him to PW 18 District

Magistrate Jayanti Ravi and then, PW 18 along with a

covering letter sent that statement on the next day i.e.,

7.3.2002 to SP, Dahod, who further sent that letter to Dy.S.P.,

Limkheda, accused No.18. The entries to that effect were

made in the outward and inward register of Dahod and

Limkheda police station. The prosecution brought the said

entries on record by examining the police constables i.e., PW

48 Rameshbhai Walabhai Babhor and PW 50 Ganpatsingh D.

Khant, the constable at Limkheda police station. Thus

original statement dated 6.3.2002 was sent from Dahod to

Limkheda police station. Thereafter, in the year 2004, all the

papers of investigation were taken over by CBI under

panchanama dated 5.1.2004 (Exh. 267) and 20.1.2004

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(Exh.268) which is brought on record through PW 52 Kalubhai

Vohaniya and the said statement of the prosecutrix dated

6.3.2002 was not found in those papers and therefore, the

prosecution relied on and tendered the secondary evidence

i.e., the office copy of the statement preserved by the District

Collector, Godhra, which is on record, i.e., Exh. 277.

54 PW 52 Kalubhai Vohania has stated that he was PI,

CID, Godhra. He stated that he handed over investigation in

the present case to PW 72 Deputy Supdt. of Police K.N.Sinha

of CBI. They collected the papers from CID, Godhra, who

were investigating the matter. The case papers of the

investigation were handed over to CBI by panchanama dated

5.1.2004 marked Exhibit 267 and muddemal articles were

also handed over to CBI under memorandum of seizure (Exh.

268) dt. 20.1.2004. In the evidence of PW 23 Govindbhai, he

has specifically stated that the original of the said statement

was sent to SP, Dahod and in para 9 of this evidence, he has

specifically mentioned that despite efforts, the original

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statement of the prosecutrix dated 6.3.2002 was not traced.

However, he identified the office copy of the said statement.

Thus, we are of the view that CBI has made bonafide and

genuine efforts to get the original statement but their efforts

failed and therefore, secondary evidence of the photocopy i.e

office copy of original of Exh. 277 is allowed. In view of the

evidence on record, we are of the opinion that this copy Exh.

277 can be taken into consideration and relied on. Thus,

prosecution has sufficiently explained the reasons that why

original of Exh. 277 was not with CBI hence this photocopy

which was an office copy was tendered.

55 At this juncture, we asked a question to ourselves

as to whether the names of the assailants mentioned in the

statement dated 6.3.2002 (Exhibit 277) was a manipulation

by the prosecutrix. On 4th March 2002 after 10.45 a.m. she

stayed at Limkheda police station. The evidence of PW 35

Ranjeetsingh Patel shows that the prosecutrix on 4.3.2002

stayed overnight at Limkheda Police Station. On 5 th March,

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also she was at the police station thereafter, she was shifted

to Godhra Relief Camp. There was no opportunity to tutor

her at Limkheda Police Station. Moreover, it was not possible

for anyone to take her outside the police station on 4 th and 5th

to tutor her. Almost all in the group of the prosecutrix were

killed. The situation outside the police station was totally

fraught with danger, in such case, it is not possible that the

prosecutrix would leave the police station with some

unrelated person to enable them to tutor her. The only time

that the prosecutrix left the police station between 4 th and 5th

March was when she was taken to Community Health Centre

(CHC) Limkheda for checkup. At that time, DW 7 Police

Constable Ushaben accompanied her, therefore, there was no

scope for tutoring. District Magistrate PW 18 Jayanti Ravi

alongwith PW 23 Govindbhai Patel visited the Godhra Relief

Camp on 6.3.2002 and there, PW 18 directed PW 23

Govindbhai Patel to record statement of the prosecutrix i.e.,

the statement which is at Exhibit 277. Thus, the defence has

unsuccessfully tried to create a cloud of suspicion that on the

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night of 4th or 5th March the prosecutrix was not at Limkheda

police station and she was tutored by social workers and

NGOs and to that effect, questions were put to her. However,

the movements and stay of the prosecutrix at Limkheda

police station and Godhra Relief Camp cannot be doubted.

Moreover, it cannot be said without any foundation that the

names given by the prosecutrix in the statement dated

6.3.2002 (Exh. 277) were imaginary or false.

56 The statement (Exh. 277) recorded by PW 23

Executive Magistrate Govindbhai on the instructions of

District Magistrate Collector PW 18 Jayanti Ravi was made

by the prosecutrix as early as can reasonably be expected in

the facts and circumstances of this case. Thus, the statement

is admissible in evidence as it was made at or about the time

the fact occurred, so it can be used for the purpose of

corroboration under section 157 of the Evidence Act. Thus,

we have no hesitation in relying on the same.

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57 It is the consistent case of the prosecutrix that at

the time of recording of FIR Exh.56, she informed that she

was raped by accused nos.1 to 3, the ladies in her group were

raped by the mob of 20-25 persons and her relations

including daughter was killed. She had specifically named

accused nos.1 to 12 from Randhikpur as being part of that

mob. However, she was threatened that she will be given a

poisonous injection when she gave the names of accused and

her FIR was not correctly recorded. The prosecutrix was in

Limkheda Police Station till she was taken to Godhra Relief

Camp. In the hostile atmosphere which was prevailing at

Limkheda Police Station the prosecutrix could not do anything

further as she was helpless. However, when the prosecutrix

was taken to Godhra Relief Camp on 6 th, she met PW 18

District Magistrate Jayanti Ravi to whom she disclosed all

these facts which were recorded in her statement Exh. 277.

The prosecutrix stated that as mob had started burning

houses in Randhikpur on 28th she along with others ran from

village Randhikpur and reached Chundadi village. They

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stayed at Kuwajar. The next morning, they started for Khudra

and stayed in Khudra village for two days. After that in the

morning at 4.00 a.m. they started their onward journey. On

the way, there was a kachha road at Panivela village. When

they reached on the spot, about 20 people came in white cars

and attacked them. They stripped her, her sisters, her two

aunts, daughters of paternal aunts and raped them. They

also killed some of the persons in the group. She lay on the

ground as if she was dead. The attackers thereafter left.

When she gained consciousness, she went up the hill and hid.

She named accused nos. 1 to 12 as some of the persons

from the mob who attacked them. This shows that as soon

as the prosecutrix was in a free and fair atmosphere and was

not under threat or fear, she disclosed the names of accused

nos. 1 to 12 and that they raped her and the ladies in her

group and murdered the persons in her group. Thus her

statement Exh. 277 is a most important document. PW 18

District Magistrate Jayanti Ravi and PW 23 Executive

Magistrate Govindbhai have deposed about Exh. 277. We

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have dealt with it in detail. Suffice to say that PW 18 District

Magistrate Jayanti Ravi and PW 23 Executive Magistrate

Govindbhai are independent persons, hence, we see no

reason to disbelieve their evidence.

FAX (EXHIBIT 57)

58 Thereafter Mr. Ponda contended that entirely

inconsistent and discrepant versions are given by the

prosecutrix from time to time. In the FIR Exh. 56 she has

stated that a mob of 500 persons attacked them. In the FIR,

she neither makes any mention of rape on her nor about

knowing any of the attackers. However, in her statement

Exh. 277 recorded on 6.3.2003 by PW 23 executive

Magistrate, she mentions that about 20 persons came and

raped her and her sisters, aunts and cousins and that

accused Nos. 1 to 12 who are residents of Randhikpur were

among the attackers. Mr. Ponda submitted that it is the case

of the prosecutrix that 20-25 persons attacked them, out of

them, she knew accused Nos. 1 to 12 and accused Nos. 1 to 3

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committed rape on her. Mr. Ponda stated that the prosecutrix

sent a fax Exh. 57 on 7.3.2002 to District Magistrate, Dahod

in which entirely different story was given by the prosecutrix.

In this fax, she stated that accused Nos. 2, 4, 5 6 raped her

and she makes no mention of accused Nos. 3, 8, 11 12 as

being part of the mob. Mr. Ponda submitted that the

prosecutrix tried to deny this document i.e Fax Exh. 57.

However, according to Mr. Ponda, the Fax was actually sent

by her. Mr. Ponda submitted that there is reference to Fax

Exh. 57 in W.P.No. 118 of 2003 (Exh. 61) which was preferred

by the prosecutrix before the Supreme Court assailing the

faulty investigation in her case. He submitted that reference

is made to this Fax in para 4(vi) of the Writ Petition. The

family status of the prosecutrix is mentioned and there is

reference to Godhra riots and that she and total 17 persons

left Randhikpur to save themselves. On the point of incident,

it was mentioned that when they were passing between 2

hills, 30-40 people from Randhikpur and Chapparwad came in

two white cars. The names of accused nos. 1, 2,4 to 7, 9 and

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10 is mentioned and that they were holding swords, knives,

sticks, etc. It is mentioned that they were shouting to beat,

kill them. They tore clothes and raped the women including

her and killed the family members including her 3½ year old

daughter. The names of the persons, who raped her were

given as accused no.2 Govind, accused No.4 Shailesh Bhatt,

accused No.5 Lala Vakil (Radheshyam Shah) and accused

No.6 Lala Doctor (Bipinchandra Kanaiyalal Joshi). Then she

mentioned that she spent the night on the hill. Thereafter

the police arrived there. They saw her. They provided her

clothes and took her to Limkheda and thereafter to Relief

Camp.

59 Mr.Ponda has argued that the said document i.e

Exh. 57 was relied upon by the prosecutrix in her Writ

Petition (criminal) No. 118 of 2003 preferred before the

Supreme Court. The prosecutrix in her evidence has

admitted that she has filed the Writ Petition. Mr. Ponda

pointed out that Exhibit 57 was one of the annexures to the

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said petition. He submitted that in ground No.4(vi) of the

writ petition, she referred to this fax and she herself has

annexed a copy of the Fax (Exhibit 57) at Annexure P4 to the

Writ Petition. He submitted that as these annexures were

admitted and relied by her in the writ petition, which was

filed before the Supreme Court, then, it is to be considered as

an admission on the part of the prosecutrix that she has sent

the Fax and she herself is the author of the Fax Exhibit 57.

60 Mr. Ponda further submitted that in Exhibit 57, she

gave altogether different version of the assailants. She did

not tell that accused nos. 1 and 3 raped her but she has

stated that the accused nos.2, 4, 5 and 6 had raped her. In

her statement first in time, i.e., FIR Exhibit 56 she is

completely silent about the incident of rape on her and killing

of her daughter. He argued that though PW1 has denied

continuously that she did not send fax (Exhibit 57), her

evidence is false. She has been telling lies throughout before

the Court because she herself has annexed and relied on this

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fax (Exhibit 57) in the Writ Petition (Exhibit 61) filed by her

before the Supreme Court. In paragraph 4(vi) of Exhibit 61,

she has mentioned that she relied on the annexures and

referred to this statement of hers dated 7th March, 2002.

Thus, she is the author of Exhibit 57 and she cannot now

deny the contents of the Fax.

61 As far as the above submission is concerned, in

para 4(vi) of the Writ Petition, we find that she has mentioned

that her another complaint was filed before “Godhra police

station” on 7.3.2002, whereas the Fax is sent to “District

Magistrate Dahod”. On going through the Writ Petition Exh.

61, we find that there is no reference at all to the Fax dated

7.3.2002. In fact, there is a statement given by her to

Godhra police station dated 7.3.2002 which is part of Exh.

232 colly. which is recorded by PW 42 Pawar. It was probably

to this statement to which she made a reference in para 4(vi)

of the Writ Petition. In the entire Writ Petition, there is no

reference to the Fax.

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62 Mr. Ponda argued that FIR Exhibit-56, Fax Exhibit

57 and her other statement recorded on 6th March, 2003

(Exh. 277) by PW 23 Executive Magistrate Govindbhai are

completely inconsistent and differ in details in respect of

culprits. He further submitted that a letter was sent by PW

72. He referred to the evidence of PW 72 I.O. Mr. Sinha who

speaks about the letter dated 8th March, 2002 (Exhibit D-87)

being sent by Dist. Collector, Dahod to S.P. Dahod, forwarding

the fax dated 7.3.2002. He also referred to the letter dated

16th February, 2004 (Exhibit 447) sent by District Magistrate,

Dahod to Police Inspector, Dahod and the letter dated 17th

February, 2004 which is reply by District Magistrate, Dahod

to CBI. To this reply, Dist. Magistrate, Dahod annexed copy

of Fax (Ex. 57) along with two other documents. He

submitted that original fax was to be brought on record for

the purpose of verifying thumb impression of the prosecutrix

which was purposely not done. It is to be noted that Fax

Exh. 57, FIR Exh. 56 and specimen thumb impression of the

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prosecutrix were sent to the finger print expert. The report of

the finger print expert is marked as Exhibit 445-B which is

inconclusive as far as the finger print on Fax Exh. 57 is

concerned.

63 Mr.Venegavkar, per contra, has submitted that this

document i.e. Fax Ex. 57 was never sent by the prosecutrix

and it was never relied upon by the prosecution and in fact,

the prosecutrix has categorically denied it. He submitted

that she is an illiterate woman. She has given her FIR (Exh.

56) on 4.3.2002. On 4.3.2002 and 5.3.2002 the prosecutrix

was in Limkheda police station. The prosecutrix was sent for

medical examination to CHC Limkheda on 5.3.2002. Then

she was sent to Godhra Relief Camp on 5.3.2002. On

6.3.2002, her statement Exh. 277 was recorded by PW 23

Govindbhai G. Patel, Mamlatdar (Executive Magistrate),

wherein she has specifically mentioned that a group of 20 –

25 persons attacked her and her group. She has given the

names of 12 accused persons therein i.e. accused nos. 1 to

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12. Fax (Exh. 57) was received on 7.3.2002 at 5.56 p.m. in

the office of District Magistrate, Dahod by DW 10 Mr.

Shamjibhai Kunjadia who was P.A. to District Magistrate

Dahod. In this Fax, the names of the persons who raped the

prosecutrix is mentioned as accused nos. 2, 4, 5 and 6. Mr.

Venegavkar submitted that there was no opportunity for the

prosecutrix to send this fax, hence, the prosecutrix cannot be

the author of Fax. Exh. 57.

64 The incident occurred on 3.3.2002. After the

incident, the prosecutrix climbed up the hill and hid there till

the next morning. On the next morning, she came down from

the hill where she met DW 2 Vanrajsingh Dhingra. The

evidence of DW 2 Vanrajsingh Dhingra shows that he met the

prosecutrix on 4.3.2002 and thereafter he took her to

Limkheda police station. She was in Limkheda police station

on 4.3.2002. The evidence of PW 35 Ranjeetsingh shows

that on 4.3.2003, the prosecutrix stayed overnight at the

police station. On 5.3.2002 the prosecutrix was sent to CHC

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Limkheda (Community Health Centre Limkheda). She was

accompanied by DW 7 Ushaben who was the police constable

who took the prosecutrix to CHC Limkheda. This is clear

from the evidence of DW 7 Ushaben. Ushaben has stated

that CHC Limkheda was at a distance of about 200 feet from

the police station. Ushaben has specifically stated that when

she and the prosecutrix were walking, nothing happened on

the way. Ushaben has stated that they were at CHC

Limkheda for 1½ hour. Ushaben has stated that she was with

the prosecutrix at CHC Limkheda. Thereafter, they returned

to Limkheda police station. Thus, it is seen that on 4.3.2002

and 5.3.2002 the prosecutrix had no opportunity to prepare

the Fax (Exh.57) and thereafter send to District Magistrate

Dahod. Thereafter, the prosecutrix was sent from Limkheda

police station to Godhra Relief Camp at Godhra. She was in

Godhra Relief Camp on 6th and 7th March, 2002. On 6.3.2002

the prosecutrix met District Magistrate Godhra (PW 18)

Jayanti Ravi and PW 23 Mamlatdar / Executive Magistrate

Govindbhai Patel in Godhra Relief Camp. PW 23 Govindbhai

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recorded the statement of the prosecutrix on the say of PW

18 Jayanti Ravi. This statement is at Exh. 277. In this

statement, the prosecutrix has implicated accused nos.1 to

12. The evidence of PW 17 Dr. Katti shows that on 7.3.2002

at about 6.45 p.m. the prosecutrix was brought to the

hospital. Exh. 138-A which are the medical case papers

relating to the prosecutrix, show that she was examined on

7.3.2002 around 7.00 p.m. The prosecutrix gave history to

PW 17 Dr. Katti that she was raped by accused nos. 1 to 3.

This is seen from the case papers Exh. 138A 143. Thus, it

is not possible that on the very same day at 5.56 p.m. the

prosecutrix would send the Fax (Exh.57) giving entirely

different story. The history which is reflected in Exhibits 138-

A and Exh. 143 shows that accused nos.1 to 3 raped the

prosecutrix. It is seen that the Fax (Exh.57) is in English.

The Fax (Exh.57) is a neatly typed document. The

prosecutrix is an illiterate villager. Moreover, the prosecutrix

was penniless which is seen from the fact that she was

stripped naked after the incident. Thereafter she found one

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petticoat nearby her. She wore the said petticoat as she had

no clothes on her person. This shows that she had no money

with her, hence, it would not have been possible for the

prosecutrix to get her statement typed and then sent by Fax

to District Magistrate Dahod. From the sequence of events,

it is clear that the prosecutrix had no opportunity till the

evening of 7.3.2002 to prepare and send the Fax, hence, it

would not have been possible for her to send this Fax that too

in English to the District Magistrate Dahod on 7.3.2002.

65 The evidence of PW 72 I.O. K.N. Sinha shows that

despite his best efforts he could not get the original Fax

(Exh.57). There is only thumb impression affixed to the Fax

(Exh. 57) which as per the Expert’s opinion, was not proved to

be that of the prosecutrix as it was blurred. Thus, it is seen

that on 4th and 5th she was at Limkheda police station. On 5 th

she was taken from Limkheda police station to Godhra Relief

Camp. On 6th her statement (Exh.277) was recorded by PW

23 Govindbhai. This shows that she hardly had any time to

prepare this Fax (Exh.57) or any opportunity to do so. On

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7.3.2002 the prosecutrix was in Godhra Relief Camp. It was

not possible for her to prepare the Fax and send it to District

Magistrate Dahod by 5.56 p.m. of 7.3.2002. Moreover, it is

hardly possible that the prosecutrix within a span of about

one hour would give entirely different story before PW 17 Dr.

Katti and in the Fax Exh. 57. Because, in the Fax, it is stated

that the prosecutrix was raped by accused nos.2, 4, 5 6.

Dr.Katti has specifically stated that the prosecutrix was

brought to the hospital on 7.3.2002 at 6.45 p.m. and she

narrated to her history of rape by accused nos. 1 to 3. Dr.

Katti has not been shaken on this aspect in the cross

examination. Thus it is not possible that the prosecutrix

would give two absolutely different versions in a span of less

than one hour. This also shows that the Fax was not sent by

her. Moreover, there is no witness who states that the Fax

Exh. 57 was sent by the prosecutrix except the defence

witness DW 10 Shamjibhai Kunjadia who states that one Fax

was received on 7.3.2002 at 5.56 p.m. He has no personal

knowledge about who actually sent this fax.

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66 Fax (Exh. 57) dated 7.3.2002, shows that it was

addressed to the District Magistrate and Collector, Dahod.

This fax was not relied on by the prosecution but it was

brought on record by the defence in the cross-examination of

the prosecutrix. She has denied the authorship of the said fax

and also refuted that she was the sender of the said Fax.

However, this Fax was in the police record as a copy of this

Fax was sent by the Collector, Dahod to S.P.Dahod. DW 10

Mr. Shamjibhai Kunjadia i.e., P.A. to Collector, Dahod, has

stated that he has received fax at 5.56 pm on 7.3.2002.

Then, by letter dated 8.3.2002 (Exh.446 colly), that fax was

forwarded to S.P., Dahod by District Magistrate, Dahod.

Thereafter one R.V. Wankhede, P.I., CBI by letter dated

16.2.2004 (Exh. 447) asked for the said fax. The said fax was

sent for the opinion of the CFSL regarding thumb impression

of the prosecutrix appearing at the bottom of the Fax. Exhibit

445B is the inconclusive report of CFSL dated 19.4.2004,

wherein it was opined that the fingerprint is blurred and unfit

for comparison, hence, it was inconclusive. Exhibit 446

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collectively is a letter dated 8.3.2002 sent by Dist.

Magistrate, Dahod to police SP, Dahod and along with that,

he sent a copy of the Fax. Exhibit 447 is a letter dated

16.2.2004. It was written by Mr.Wankhede, PI, CBI, to the

District Magistrate, Dahod, Gujarat. A copy of the Fax

message dated 7.3.2002 purportedly received from the

prosecutrix addressed to the DM / Collector, Dahod and so

also letter dated 8.3.2002 addressed to the SP, Dahod along

with the letter dated 1.5.2002 written by Dr.Amarjeet Singh,

IAS, Commissioner, which is marked at Exh. 446A was asked

to be handed over to the CBI for fresh investigation and

pursuant to that, a copy of Fax was sent to CBI. Thus, there

is no merit in the submission that the original of Fax Exh. 57

was purposely not collected. The evidence shows that

genuine efforts were made by CBI to get the Fax Exh. 57.

67 The contents of Exhibit 57 are different than the

other statements of the prosecutrix dated 4.3.2002 (FIR Exh.

56) and statement dated 6.3.2002 (Exhibit 277) recorded by

PW 23 Mr. Patel, Mamlatdar / Executive Magistrate on

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directions of PW 18 District Magistrate Jayanti Ravi. Though

the prosecutrix has admitted the fact of giving of complaint

(exhibit 56) to Limkheda police station and has admitted her

thumb impression thereon, she has specifically stated before

the Court that whatever she has narrated to the police

including the disclosure of the names of the accused as

perpetrators of crime, nothing was taken down but major part

of what she told was suppressed and some false statements

were inserted. FIR Exh. 56 was recorded on 4.3.2002.

Thereafter, her statement Exh. 277 was recorded on 6.3.2002

by non-police person i.e., Mamlatdar PW 23 Mr.Patel at the

instance of the Collector District Magistrate Jayanti Ravi

(PW18) and thereafter this Fax (Exhibit 57) in the name of the

prosecutrix was prepared. It is advantageous for the

defence to fix the authorship of the FIR and the Fax on the

prosecutrix because of the variance in the contents of these

documents. The statement dated 6.3.2002 (Exh. 277) is

more proximate to the date of the offence i.e., 3.3.2002 than

Fax Exh. 57 dated 7.3.2002.

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68 It is to be noted that this fax dated 7.3.2002 was

not addressed to the police at Godhra but it was addressed to

the District Magistrate and Collector, Dahod District. In Writ

Petition, she has mentioned that she “filed FIR on 7.3.2002 at

Godhra police station” and a copy is annexed therewith. On

7.3.2002, her statement in fact was recorded by Godhra

police station i.e., by PW 42 Shivaji Pawar. In view of FIR Exh.

56, her said statement dated 7.3.2002 recorded by PW 42

cannot be treated as FIR but can only be a supplementary

statement recorded under section 161 of the Code of Criminal

Procedure but not under section 154 of the Code of Criminal

Procedure as investigation had started on 5.3.2002. The

contradictions and omissions in the supplementary

statement dated 7.3.2002 recorded by PW 42 are proved and

taken on record in the evidence of the prosecutrix and PW 42

which are collectively marked at Exhibit 232. As stated

earlier, the prosecutrix in her writ petition, has not stated

anywhere that she had sent a Fax. It is to be noted that her

writ petition is in English. It was preferred through a social

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worker working for human rights. A person who signs or puts

the thumb impression below the contents is presumed to be

the author of the contents, however, it is always subject to

rebuttal if contrary facts of authorship are brought on record.

The prosecutrix was illiterate. She used to put her thumb

impression. The manner in which Fax Exhibit 57 is written is

not her expression. The prosecutrix is definitely not the

author of the said Fax. Though it is true that the names of the

rapists appearing in the Fax (Exhibit 57) are of accused

Nos.2, 4, 5 and 6, the prosecutrix has maintained her stand

throughout that she was raped by accused Nos.1, 2 and 3. A

question was put to her in the cross-examination that

whether she was raped by accused Nos.4, 5 6, she refused

the suggestion and stuck to the three names consistently of

accused Nos.1, 2 and 3 as the persons, who raped her. So,

though reference of statement dated 7.3.2002 is made in

Writ Petition Exh. 61 it can be seen that the prosecutrix was

not referring to the Fax Exh. 57 dated 7.3.2002 though its

copy was annexed to the writ petition but she was referring

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to statement dated 7.3.2002 recorded by PW 42 Pawar who

was attached to Godhra Police Station. Therefore, we

consider it as a fax which might have been sent by some well

wisher of the prosecutrix or a human rights activist, who was

confused about some names and therefore, wrong names of

the rapists and other incorrect details were possibly

mentioned in Fax Exh. 57.

EXHIBIT-61

69 Exhibit 61 is a Writ petition filed by the prosecutrix

before the Supreme Court. The prosecutrix being illiterate,

the Writ Petition was filed by some activist on her behalf. At

this stage, we would like to deal with the submissions of

Mr.Ponda that many activists, social workers were involved in

this case and they tutored the prosecutrix and hence, the

accused were falsely implicated at the instance of those

social workers. Mr. Ponda relied on paragraphs 170 to 180 of

the evidence of the prosecutrix and argued that the

prosecutrix was tutored by many persons. Many social

workers met her in the Godhra Relief camp and thereafter

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she came with this concocted version and has falsely

implicated the accused. Specific questions were asked about

Farha and Umaben who attended the press conference and

Advocate Sheela Bhat, Malini Ghosh and NGO persons

Muktabai and they were the persons who pushed her to lodge

the complaint.

70 Questions in respect of the social worker

Lateefaben who admittedly met her at Godhra Relief Camp,

were put to her. Thereafter, the names of one Huma Khan

and Farha Naqvi are also put to the prosecutrix. Farha Naqvi

was present when the prosecutrix was taken to show the spot

of offence on 13.3.2004. The prosecutrix has admitted that

she was contacted by members of the human rights

commission. The involvement of the social workers or NGOs

in such matters is obvious and it cannot always be looked

with jaundiced eyes. It is true that occasionally, they are

over-enthusiastic and witnesses are encouraged to state

exaggerated or false statements and tender evidence

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accordingly. However, it is also true that these social workers

sometimes are responsible to unearth the suppressed

material and do a good job towards justice system. Thus,

mere presence and active participation to certain extent of

these social workers in the investigation cannot make the

evidence of the witnesses doubtful. The prosecutrix was

asked about many social workers and leaders, however, she

has flatly denied that she was tutored by these persons. In

some paras, suggestions were given to her that she had

received compensation from Government for making such

complaint and for being sexually assaulted, she has received

compensation from Gujarat State. She has specifically

denied such suggestions. She made statement that

compensation is to be given to the victim of sexual assault,

however she has not received any amount. She has admitted

that she was approached by National Human Rights

Commission at Godhra. Thus, Exhibit 61, the writ petition,

must have been filed through some activists and Fax Exhibit

57 was annexed to that. However, we cannot say that it is

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the same annexure i.e., statement dated 7.3.2002 which was

relied upon by the prosecutrix. This statement dated

7.3.2002 is different from Fax Exh. 57. Statement of the

prosecutrix dated 7.3.2002 was recorded by Godhra Police

which is part of Exh. 232 colly. and which is recorded by PW

42 Pawar. The prosecutrix has made a reference to this

statement and not to Fax Exh. 57 in her Writ Petition before

the Supreme Court. Moreover, a petitioner relies on the

documents to point out positive and negative facts also, to

show that how a document supports him or also to show that

a document is false to discredit his or her case and, therefore,

it cannot be held that though Fax Exhibit 57 was annexed to

Writ Petition Exhibit 61, the prosecutrix has accepted

authorship of Exh. 57 and also the contents therein. In view

of the evidence on record, we are of the opinion that the Fax

(Exh. 57) was not sent by the prosecutrix.

SCENE OF OFFENCE:

71 Mr. Ponda then submitted that according to the

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prosecutrix the incident took place on kachha road leading to

Panivel whereas the incident actually took place in a ravine

which was not accessible by vehicles, which proves that the

entire story of the prosecutrix that about 25 persons came in

two vehicles and thereafter attacked them is false. Thus, on

the point of scene of offence, the learned counsel Mr.Ponda

has argued that the scene of offence is ravine which is 2 kms.

away from kachha road leading to Panivel and the kachha

road itself is not the place where the actual incident had

allegedly occurred. Mr. Ponda submitted that the bodies were

found buried in the ravine hence, the incident took place in

the ravine. He further submitted that it has come on record

that no vehicle can reach the ravine hence, the entire

prosecution case is false.

72 The learned counsel Mr. Ponda further submitted

that PW 13 Mukeshbhai Kalubhai Harijan who dug the pits to

bury the dead bodies and PW 15 Baria Ramsingh Nayaka,

panch to Inquest Panchnama Exh.123 were examined and

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they have stated that the distance between the kachha road

and ravine was 2 kms. Mr.Ponda has relied on the evidence

of PW 13 Mukeshbhai, who dug the pit for the burial of dead

bodies, who gave admission that from kachha road, towards

the hill, the entire team walked about 2 kms, where the

bodies were lying. Thus, Mr. Ponda tried to knock out the

evidence of the prosecutrix.

73 The learned counsel Mr. Ponda further argued that

on 10th January, 2004 the scene of offence panchanama was

drawn by CBI which is at Exh. 352 and 352A. Mr. Ponda

pointed out that in this panchnama spot shown is ravine. Mr.

Ponda drew our attention to spot panchanama which was

also drawn by CBI on 13th March, 2004 which is marked at

Exhibit 131. This panchnama was drawn after the prosecutrix

showed the spot. Mr. Ponda submitted in both these

panchanamas, spot shown is different. Thus, evidence of the

prosecutrix and the spot shown in spot panchanama 124

drawn by Limkheda Police Station and Exh. 352 352A did

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not match, hence, the prosecutrix was not speaking the truth.

74 It is to be noted that spot mentioned in spot

panchnama Exh. 124 drawn by Limkheda police is not the

spot of offence according to the prosecution or the

prosecutrix. So also spot shown in panchnama Exh. 352 and

352A is not the actual spot of incident. It is noticed that

the panchnama Exh. 352 352A is of the spot where the

dead bodies were lying and were photographed by PW 10

Soni. According to the prosecution and the prosecutrix the

spot of offence is not ravine but Kachha road leading to

Panivel. Till 4th March, 2002 the police did not know about

the incident and where it had taken place. Surprisingly,

though the prosecutrix was available in Limkheda Police

Station itself on 4.3.2002 and 5.3.2002, the police at

Limkheda did not take her to the spot, to identify the correct

spot. This also speaks volumes about the tainted

investigation. As far as panchnamas Exh. 352 and 352A

drawn by CBI is concerned it is of the spot where dead bodies

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were seen lying. It does not necessarily mean that the

incident took place at that spot.

75 Mr.Venegavkar, learned Prosecutor for CBI has

submitted that prosecution has tendered sufficient evidence

to prove that the spot of offence was near kachha road and

not the ravine and there is no confusion on the point of spot

of offence. He submitted that the evidence of the prosecutrix

is a direct evidence, which is corroborated by the

documentary evidence. The fact of injuries on the prosecutrix

itself is an inbuilt assurance of the occurrence of the incident.

Mr. Venegavkar drew our attention to the evidence of PW 17

Dr. Katti who has examined the prosecutrix on 7.3.2002. Dr.

Katti noticed injuries on the hand, back and breast of the

prosecutrix. Dr. Katti has specifically mentioned about scab

formation on the injuries and that injuries found on the

prosecutrix were 4 to 5 days old. Mr. Venegavkar relied on

two case law on the point of appreciation of evidence of an

injured witness.

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Vishnu vs. State of Rajasthan, reported in 2009 (10)

SCC 477.

Abdul Sayeed vs. State of Madhya Pradesh reported in

2010 (10) SCC 259.

In Vishnu, the Supreme Court has observed that when a

person receives injuries in the course of occurrence, there

can be hardly any doubt regarding his presence at the spot.

Further, injured witnesses would not spare the real assailants

and falsely involve innocent persons.

In Abdul Sayeed, the Supreme Court in relation to

injured witness observed thus:-

” 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 in-built
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.”

76 Mr. Venegavkar submitted that the defence has

relied only on the circumstantial evidence for shifting place of

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occurrence from one spot to the other spot i.e. from kachha

road to ravine. Apart from the evidence of the prosecutrix,

Mr. Venegavkar relied on the evidence of PW 19 Firoz Abdul

Satar Ghachi, who has stated that at the time of recording of

FIR of the prosecutrix on 4.3.2002, he was present at the

police station and he had heard whatever the prosecutrix has

stated and she stated that the offence had taken place at

kachha road leading to Panivela. He also relied on the

evidence of Mamlatdar (Executive Magistrate) PW 23 Mr.

Govindbhai Patel, who has recorded the statement of the

prosecutrix (Exhibit 277) on 6th March, 2002. He pointed out

that in the statement Exhibit 277 she has mentioned about

kachha road. He relied on the medical case papers of the

prosecutrix Exhibit 143 which is prepared by PW 17 Dr. Rohini

Katti. In the history, the doctor has mentioned that the

incident has taken place at Panivel. The learned Prosecutor

further submitted that the dead bodies were lying at Kottar,

i.e., ravine and they were not found at kachha road, because

they were shifted from kachha road or spot of occurrence to

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Kottar. He submitted that the police at Limkheda had

knowledge of such incident of assault prior to lodging of FIR

of the prosecutrix at 10.45 a.m. on 4.3.2002. He relied on

the evidence of PW 8 Saddam who has stated that on 3 rd

March, 2002 he was assaulted and became unconscious

when he regained consciousness, he saw a boy of 4 years

crying there. Then they both started walking and one

gentleman came and took them to Limkheda police station on

the same day which means 3.3.2002. He further argued that

the fact that who had shifted and when the dead bodies were

shifted from one spot to other is entirely within the

knowledge of accused nos. 1 to 12 or accused nos. 13, 14

16 i.e. Narpatsingh, Saiyed and Ramsingh, who were then

attached to Limkheda Police Station and were investigating

the offence. He submitted that prosecution relies on section

106 of the Evidence Act that the fact of shifting of bodies by

whom and when is within the special knowledge of accused

nos.1 to 14 and 16 and therefore, as the prosecution has

proved that murders have taken place, then burden is on

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these accused to show about shifting of the dead bodies. He

relied on the following judgments of the Supreme Court:

(i) Balram Prasad Agarwal vs. State of Bihar Ors.,
reported in AIR 1997 SC 1830.

READ  Ashish Tyagi vs State Of Punjab And Anr on 16 March, 2017

(ii) State of Punjab vs. Karnail Singh, reported in 2003(11)
SCC 271.

In Balram Prasad Agarwal (supra), the deceased had

died by jumping in the well and death was due to drowning.

On that night, only the victim and accused were in the house

and, therefore, the Supreme Court held that the burden is on

the prosecution to prove the case beyond reasonable doubt.

But once the prosecution has proved that accused were guilty

of persistent conduct of cruelty qua deceased, then the

burden shifts on the accused whether there is a personal

knowledge in respect of what happened on that night. The

decision being entirely different on facts than the present

case, it cannot be made applicable to this case. However, fact

remains that the evidence of the prosecutrix shows that

accused nos. 1 to 12 were part of the mob who killed her

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relatives and admittedly accused no.13, 14 16 were

present at time of inquest and spot panchnama Exh. 123

124. In such case, it would be for them to explain how the

bodies reached the ravine. In the case of Karnail Singh, the

legality of the acquittal of Karnail Singh was questioned

before the Supreme Court. While dealing with this, the

Hon’ble Supreme Court set aside the judgment of acquittal

and observed that the prosecution is not required to meet

any and every hypothesis put forward by the accused.

77 At the outset, it is to be stated that the spot

panchanama at Exhibit 124 drawn by Limkheda Police Station

was not produced by the prosecution but is brought on record

by the defence. On the point of the spot of incident, we

consider the evidence of the prosecutrix. Her evidence is

direct evidence. She along with her relatives left Randhikpur

on 28.2.2002 and travelled to different places i.e., village

Chundadi and Kuwajer on the same day. They stayed that

night at Kuwajer. Shamim, as per the evidence of the

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prosecutrix, delivered a baby girl at Kuwajer and then, on

1.3.2002 they left Kuwajer and went to village Khudra on

foot. She along with others, stayed at village Khudra in the

house of PW 20 Nayak for two days. On 3.3.2002, they

moved from Khudra to go to village Sarjumi and when they

were proceeding via Chapparwad, they took one kachha road

leading to village Panivel. She has stated that kachha road

was running through agricultural fields on one side and on

the other side there was a jungle and hillocks. After walking a

certain distance, two vehicles came from village Chapparwad

side and the incident took place. Naturally, the dead bodies

should have been found or ought to have been found on

kachha road leading to Panivel, however, as per the case of

the prosecution, the dead bodies were not found on kachha

road but 7 bodies were found in the ravine which is nearly 2

kms. away from kachha road. Two panchanamas i.e. inquest

panchanama at Exhibit 123 and spot panchanama at Exhibit

124 disclose the place where the bodies were lying was not

kachha road but a ravine. On the basis of these

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discrepancies, the learned Counsel for the defence made his

emphatic submissions that the spot of offence which is

brought on record by the prosecution as kachha road, is false

version given by the prosecutrix. Mr. Ponda pointed out that

the evidence shows that the ravine (Kottar) was not

accessible by vehicle so the case of the prosecutrix of the

assailants coming in two vehicles cannot be accepted. These

submissions of the learned Counsel are not convincing as we

assessed the entire evidence of the relevant witnesses and

the documents. In this case, the texture of evidence is

different due to the acts of omission by the Investigating

Officers who were subsequently made accused which speaks

in volumes about the nature of the case and the investigation

and therefore, to be appreciated in proper perspective.

78 The prosecutrix gave information to Limkheda

police station on 4.3.2002. The time of the FIR is recorded as

10.45 a.m. Thus, the recording of the FIR could have taken at

the most 1 hour and thus, at around 12 noon the police of

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Limkheda police station, were expected to take action. It was

a case of murder and rape which was reported to the police

station by the prosecutrix (Exhibit 56), yet, the police did not

draw spot panchanama or inquest panchnama on 4.3.2002.

However, they went to the spot on the same day and took

photographs of the dead bodies with the help of PW 28

Bhavinkumar. He turned hostile. On 5.3.2002, the police

went to the spot at 9.45 a.m. where the corpses were lying

and inquest panchanama (Exh. 123) was scribed by PW 34

Amrutsingh Khant for which PW 15 Ramsingh Baria was

panch. This panchnama Exh. 123 was scribed by PW 34 on

the dictation of accused nos. 13 and 14 and it was signed by

accused No.13 Narpatsingh Ranchodbhai Patel and accused

No.14 Idris Abdul Saiyed. PW 10 Rameshchandra Soni who

went with the police on 5.3.2002 took photographs of the

dead bodies. PW 10 turned hostile. The panchanama was

made at the spot at Panivel Kesharpur jungle where corpses

were found lying. PW 34 Amrutsingh Khant has stated that

photographs of the corpses were not taken, however, the said

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witness PW 34 Khant was cross-examined as he did not

further support the prosecution. However, the evidence of PW

34 shows that he was a police constable and he was on duty

from 28th February, 2002 till 4th March, 2002. He has stated

that corpses of 4 ladies, one girl and two boys, i.e., total 7

corpses were found. PW 35 Ranjeetsingh Patel also went to

Kesharpur jungle along with accused nos.13, 14 16 and PW

34 and they found 7 corpses i.e., 4 female and 3 children,

who were aged 14, 10 and 7 years. It is the prosecution case

that the 7 dead bodies were of Haleema i.e. mother of the

prosecutrix, Munni- sister of the prosecutrix, Sugra – aunt of

the prosecutrix, Amina – aunt of the prosecutrix, Shamim –

cousin of the prosecutrix and Aslam and Irfan who were

brothers of the prosecutrix which is not disputed by defence.

PW 15 Baria has signed inquest panchanama Exh.123 and

spot panchanama at Exh.124. These two panchanamas were

drawn on 5.3.2002. PW 15 Baria did not support the

prosecution on certain points and therefore, he was cross-

examined by the prosecution. He admitted that Exh.123 was

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inquest panchanama of the 7 corpses. However, the spot

panchnama Exh. 124 drawn by Limkheda police was not

brought on record by the prosecution. The spot panchanama

Exhibit 124 is brought on record by the defence in the cross-

examination of PW 15 Baria who has admitted the drawing of

the spot panchanama on 5.3.2002 between 1.00 p.m. to 2.00

p.m. This panchnama is of the spot where the bodies were

lying. In Exh.124 i.e. spot panchanama description of the

mango trees, hillocks and other trees is mentioned. Neither

of the two documents i.e., Exh. 123 or Exh. 124 say a word

about kachha road leading to Panivel. Thus, the spot of

kachha road is completely disconnected from the place where

the corpses were found. After going through these

documents and the evidence, mainly of PW 15 Baria and PW

34 Khant, who turned hostile, the main question which arose

in our mind is why the prosecutrix was not taken to the spot

to show the spot of the offence on 4th or 5th of March, 2002?.

It was very logical and obvious for the police of Limkheda

police station, to take the complainant i.e. prosecutrix to

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show the spot of offence, where the assault had taken place

as she was an eye witness. The prosecutrix was very much

available to the police as she stayed at Limkheda police

station from 10.45 a.m. on 4.3.2002 till 5.3.2002.

Mr.Venegavkar has rightly pointed out that in spot

panchanama Exhibit 124 name of one Mayurbhai Dhirsing

Baria is mentioned, that he showed the place of occurrence.

We fail to understand who was this Mayurbhai Baria and why

he showed the place. However, the prosecutrix was not taken

to the spot because the police did not want her to show the

right spot. Though police accused 13, 14 16 visited the spot

on the day of recording the FIR on 4.3.2002 along with

photographer, the question remains unanswered as to why

they did not draw the spot panchanama on the same day.

The explanation coming forward from the defence that it was

night time and therefore they could not draw the spot

panchanama, is lame and unsatisfactory. The photographs of

the dead bodies were taken on 4.3.2002. The police did not

go to the spot on 4.3.2002 at night. Therefore, when it was

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possible for them to take photographs what prevented the

Investigating Officer to draw the scene of offence

panchanama on that day?

79 It was submitted on behalf of the defence that the

police wanted to take the order of Magistrate to carry out

inquest panchanama and therefore on 5.3.2002 morning,

they obtained orders from the Magistrate marked at Exhibit

244, granting permission to carry out panchanama and

therefore, they did not draw the inquest panchanama at

Exhibit 123 on 4.3.2002. This explanation is also not

satisfactory. It is the duty of the police to carry out the

investigation when cognizable offence like murder is

registered. Irrespective of the permission of the Magistrate, a

spot panchanama is drawn routinely as it is an essential part

of the investigation of such type of offence.

80 The spot of offence was changed by the police

officers of Limkheda from Kachha road to ravine. In this

connection we would like to refer to the evidence of PW 56

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Abhijeet Rudra, who is a forensic expert. In the evidence of

PW 56 Abhijit Rudra it is stated that the bodies found on 5 th

March were at a different place than the place of offence

claimed by witnesses. In paragraph 55 PW 56 Mr. Rudra has

stated that in photograph A5 which is the photograph of a

young girl, the front of the body appeared to be partially wet

and the clothes appeared to be partially wet. This is not

consistent with the surrounding area which is dry. Mr. Rudra

in paragraph 60 has stated that judging from the condition of

the bodies seen in the photographs Set-A B and the injuries

recorded in the post-mortem examination reports, the spot

where the photographs were taken, would be unlikely to be

the spot of actual violence. In photographs A1 to A4 reddish

stains were seen running downwards from left corner of

mouth and left nostril but no reddish material or stain is

apparently visible on the ground. In photographs A1 to A4

and B1 staining and soiling of the body is visible, however,

the `Salwar’ on the body is relatively clean. In photograph A5

the front of the body appeared partially wet and reddish

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stains were visible over right side of face but no reddish stain

or material is visible on the ground or over surrounding area.

In photograph B2 the position of the arm does not match the

current position of the body hence, the position having been

changed after the onset of rigor mortis in some other position

cannot be ruled out. In paragraph 62, Mr. Rudra has stated

that in photographs A6 and A7 fracture of skull is seen. The

brain matter is seen coming out but the surrounding area

does not show any reddish material or brain tissue or any

other stains. In paragraph 63 Mr. Rudra has stated that

judging from the surrounding area, there does not appear to

be any disturbance of the leaves and other material on the

ground which are indicative of a struggle having taken place

there. In paragraph 65 he has stated that there are no signs

of struggle visible in the area around the body which is seen

in photographs B8 and B9. Mr. Rudra has stated that all

these photographs indicate that the possibility of the person

having died at some other spot, cannot be ruled out. This

observation of Mr.Rudra is in consonance with the

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prosecution case. This shows that the incident took place

elsewhere i.e. on kachha road and the bodies were thereafter

thrown in the ravine.

81 We need to construe the incident on the basis of

evidence of the prosecutrix and the documentary evidence of

panchanamas Exhibits 131, 124 and 123. The panchanama

of spot of offence (Exh. 131) recorded by CBI on 4.1.2004 is

considered as correct. Arrival of the vehicles on the road was

the starting point of assault, which was at kachha road.

Naturally, the members in the group started running so all of

them could not be caught and assaulted at one place but

some were assaulted on the road, some towards the hillock

or jungle. Thereafter, the bodies were shifted to the spot

where 7 bodies were found. Other 7 bodies were not found at

all. Thus, the incident has commenced at kachha road,

however, it continued and the rape and killing had taken

place at different places near the kachha road. Thus, the

spot was not static. Similarly, it was definitely not 2 kms.

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away i.e., at ravine where the spot of offence and inquest

panchanamas (Exh. 124 and Exh. 123) were prepared on

5.3.2002 by the Limkheda police. Thus, omission of the

Investigating Officer on three major counts i.e., firstly, not

taking the prosecutrix to identify the dead bodies, secondly

not taking the prosecutrix along with them to show the spot

either on 4th or 5th March, 2002 and thirdly, not drawing the

spot panchanama on the same day i.e., 4.3.2002, compel us

to draw inference that the accused persons have changed the

spot of offence the bodies were shifted from kachha road to

ravine to make the story of the prosecutrix unbelievable right

from the point of spot of offence. It is also possible that the

accused nos. 1 to 12 threw the bodies in the ravine, because

it was a place which was not easily accessible due to which

the offence they committed would not come to light. It is

further pertinent to note that when the bodies were exhumed

not a single skull was found. This shows that the accused did

not want the bodies to be identified, hence, the heads may

have been cut-off.

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82 We would also like to consider the evidence of PW

72 Mr.K.N. Sinha, the Investigating Officer of the CBI. He took

over the charge of the investigation on 1.1.2004 and

thereafter, he found the prosecutrix on 9.1.2004. He has

stated in his examination-in-chief that she was in an

advanced stage of pregnancy and therefore, she was unable

to come with the police to show the spot of offence.

However, it appears that the police did not leave that issue

there but PW 72 Mr.Sinha again contacted the prosecutrix

and on 13.3.2004 along with the prosecutrix proceeded to

the spot. He drew spot panchanama, which is marked at

Exhibit 131 dated 13.3.2004. The photographs of the

prosecutrix showing the place and the actual kachha road

and the hill were taken which are marked at Exhibits 135 (1)

to 135(15) collectively. A C.D. was also produced. We have

seen those photographs. In the photographs, hillock is seen

and the place the prosecutrix hid between the boulders on

top of the hill is also seen. The photographs of hand-pump is

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also produced by CBI which further corroborates her case.

The prosecutrix in her FIR Exh. 56 had made a reference to

hand-pump. Though Limkheda police did not bother to take

any photographs of the hand-pump, the CBI took the effort to

take photographs of the hand-pump. The prosecutrix has

identified the same. If the prosecutrix had not been to this

spot, she would not out of the blue, make a reference to

hand-pump. She was not familiar with that area, for her to

make a reference to the hand-pump or for that matter the

kacha road.

83 It is to be noted that the statement of the

prosecutrix was recorded by an independent authority i.e. PW

18 District Magistrate Jayanti Ravi on 6 th March 2002. The

said statement is at Exh. 277. The prosecutrix was

thoroughly cross-examined on the point of shifting of spot of

offence. However, her evidence is found consistent with her

statement Exh. 277 on the point of spot of offence. Thus, we

are convinced that the incident took place at the kachha road

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leading to Panivel and not in the ravine as contended by Mr.

Ponda.

PHOTOGRAPHS EXHUMATION:

84 The photographs of the dead bodies taken on 4th

and 5th March, 2002 and also by CBI in Jan / Feb. 2004 at the

time of exhumation of the dead bodies is very valuable

evidence tendered by the prosecution.

When the bodies were exhumed, the bones of 7

human bodies were found, however, while reading the

evidence, it was shocking to note that the skull of none of the

persons was found. So it appears that at some point the

heads were cut off.

85 The learned Counsel Mr. Ponda has submitted that

the learned trial Judge has erred in accepting and believing

the photographs (Exhs. 59/1 to 59/17). These documents

ought not to have been exhibited as they are not proved

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properly. These are the photographs of seven dead bodies.

He argued that though the prosecution has claimed that 14

persons were killed, only 7 bodies were found. Secondly,

Saleha’s body i.e., the daughter of the prosecutrix was not

found. He argued that the prosecution has examined

witnesses to prove the photographs and the postmortem

notes and CA report. He pointed out that PW 10 Ramesh

Chandra Soni was examined on the point of taking

photographs on 5th March, 2002, however, he did not support

the prosecution. Similarly, PW28 Bhavinkumar Patel, who

according to the prosecution, took photographs on 4.3.2002,

turned hostile. According to prosecution, PW 30 Vasudeo

Laxmidas Pandit had developed the photographs PW 32

Vinodbhai Prajapati is the one who lent the camera (article 3)

to PW 28 to take out photographs, however, none of these

witnesses supported the prosecution. Mr. Ponda pointed out

that in the inquest panchanama, 7 bodies were found, out of

which 5 were female and two were male i.e. 2 boys of 11 and

13 years of age. Out of 5 female bodies, the age of the

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females were 42, 40, 35, 20 and 9 years. He pointed out

panchanama which is marked as Exh 363 of the seizure of

the photographs on 31.1.2004 wherein it is mentioned that

the photographs of one lady of 40 years, one girl of 3 years,

another girl of 10 years and three boys were taken. Mr.

Ponda pointed out the letter dated 17.2.2004 (Exh 322) sent

by Director of Central Bureau of Investigation to Forensic

department for analysis of photographs and other articles

with a questionnaire consisting 34 questions. It was further

submitted that thereafter CA sent reply and the report to the

questionnaire of CBI is marked Exh 324. In the said reply, in

item 4, there is a reference to 10 photographs. He pointed

out that the letter dated 27.2.2004 (Exh 428) was written by

CBI to CA. The learned Counsel has argued that exhumation

tallies with the post-mortem notes but it does not tally with

seizure memo (Exh. 363) of photographs in which there is

reference to body of a 3 year old girl.

86 Mr. Ponda argued that a photograph which is

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claimed to be Saleha’s (Exh 59/4) is in fact not of Saleha.

This is supposed to be photograph A-10. He relied on

chemical analyzer report (Volume 8 Page 2034) i.e Exh 324

of forensic expert PW 56 Rudra that after analyzing

photograph A-10, the Chemical Analyzer Expert opined that it

does not appear to match any of the sets of bones which

were found during exhumation. He pointed out that the

chemical analyzer’s opinion shows that the body of Saleha

was not recovered during exhumation. Mr. Ponda submitted

that in fact, Saleha was not killed in the incident, therefore,

there is no body of Saleha. Her body was not amongst the 7

bodies and thus, the prosecution could not tender any

evidence on the corpus delicti of Saleha, so the death of

Saleha itself is not proved.

87 The prosecution examined PW 10 R.K. Soni to

prove photographs Exhs. 59(1) to 59(8) and PW 28 Bhavin

Patel was examined to prove photographs Exh. 59(9) to

59(17). The prosecution also examined other witnesses,

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namely, PW 29 Balubhai Vohania, PW 30 Vasudev Pandit and

PW 32 Vinodbhai Prajapati, but none of them supported the

prosecution. So, neither the negatives nor the photographs

were proved by the prosecution. PW 10 and PW 28 who had

clicked the photographs took complete U-turn, and therefore

the admissibility of these photographs was challenged by the

defence.

88 Mr. Venegavkar argued that though the

photographs 59/1 to 59/8 were taken by PW 28 Bhavin Patel

on 4th March, 2002 and photographs 59/9 to 59/17 were

taken by PW 10 Ramesh Chandra Soni on 5 th March, 2002,

these witnesses did not support and turned hostile. The other

witnesses, i.e., PW 29 Babubhai Vohaniya, who was present

at the time of taking photographs, PW 30 Vasudev Pandit

who was running “Scanner Colour Lab” in Godhra and

developed the photographs Exhs 59/1 to 59/17 in his lab

and PW 32 Vinodbhai Prajapati who gave his camera (Article

3) to PW 28 Bhavin to click photographs Camera Article 3

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was seized from PW 32 Vinodbhai on 31 st January, 2004 were

relied upon by the prosecution for corroboration, however,

they all turned hostile. He submitted that these photographs

were taken on two dates i.e 4.3.2002 5.3.2002.

Photographs Exhs 59/1 to 59/8 were seized by CBI Officer PW

68 Tariyal from PW 28 Bhavin Patel under seizure memo Exh

363 on 30th January, 2004 and photographs Exh. 59/9 to

59/17 were seized by CBI Investigating Officer PW 72 Sinha

from PW 10 Soni on 7.1.2004 vide seizure memo Exh. 109.

He submitted that so far as evidence of these witnesses i.e

PW 10, 28, 29, 30 and 32 are concerned, they did not tell the

truth before the Court in order to prove that photographs

were in fact taken. The negatives were also produced by PW

10 which were seized vide seizure memo Exh 109 dated 7 th

January, 2004. Mr. Venegavkar pointed out that PW 10 Soni

has admitted that he knows Scanner Colour Lab and he used

to develop photos in scanner colour lab. Mr. Venegavkar

further submitted that copies of 7 photographs of 7 bodies

were handed over to accused nos. 19 and 20 who conducted

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postmortem, which is marked at Exhs 411A to 417 A B. He

further submitted that PW 28 took 8 photographs on 4 th

March, 2002 and produced 10 negatives, they were seized

from him and his signatures are seen on the photographs

Exhs. 59/1 to 59/8 on the backside. PW 28 has admitted that

he signed on the back of these photos.

89 Mr. Venegavkar, on the point of proof and

admissibility of the photographs Exhs. 59/1 to 59/17 has

submitted that it is not necessary for the documents like

photographs to be proved through direct evidence but it can

be proved through circumstantial evidence. Mr. Venegavkar

submitted that production of photographs 59/1 to 59/17

produced before us itself show that they exist and the

question is only about who clicked the photographs.

90 Mr. Venegavkar relied on cross-examination of PW

10 Soni and PW 28 Bhavin Patel. He submitted that the

negatives and photographs were seized from PW 10 Soni and

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PW 28 Bhavin Patel. He relied on the evidence of PW 52

Kalubhai Vohania, who recorded the statement of PW 10 and

also on the evidence of PW 68, the police officer Mr. Tariyal,

who recorded the statement of PW 28 Bhavin Patel. He

argued that the police have prepared the memorandum of

seizure of the negatives and the photographs which were

seized from these two witnesses. Therefore, the prosecution

has proved the photographs and are to be read and relied in

the evidence.

91 Mr. Venegavkar relied on the case of Rayappa

Asari reported in 1972 Cr.L.J. 1226, in which one document

(Exh P4) written by Rayappa was disputed on the point of its

admissibility. At that time, the Supreme Court relied on

Section 3 of the Evidence Act and held that it is not necessary

that proof must be direct. The circumstances of the case and

the contents of the document are to be considered the proof

of document itself.

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92 The prosecution has tendered many photographs

besides the photographs of the dead bodies. Most of the

photographs were taken in Jan/Feb. 2004 when CBI started

investigation and visited the spot for exhumation and

inspection. Those photographs are proved through the

Investigating Officer and by producing negatives of the

photographs. However, 17 photographs of the dead bodies

taken on 4th and 5th March, 2002 which are marked at Exh.

59/1 to 59/17 are disputed on the ground of admissibility.

The photographs which were taken on 4 th March, 2002 are

numbered as A and the photographs which were clicked on

5th March, 2002 are numbered as B. The total photographs

and the identification of the bodies from the photographs is

analyzed as follows:

   No. of   Names of the                                Exhibit No.            Photograph
photographs persons no.
5 Haleema 324A (Coll.) A-1 to A-4 B-
1
2 Munni 324B (Coll.) A-5 and B-2
13 years old
3 Aslam 324C (Coll.) A-6, A-7 B-3
15 years old
3 Irfan 10 years old 324D A-8 B-4
boy

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1 Shamin 324E B-5
20 years old
2 Sugra 35 years old 324F B-6 B-7
female and aunt of
the prosecutrix
2 3 year female Appendix H A-10
Saleha

93 Reliance was placed by Mr. Ponda on a decision of

the Supreme Court in Kartar Singh Vs. State of Punjab

reported in 1994 SCC (3) 569 wherein the identification of

the accused on the basis of photographs and the

identification of the accused at the time of Test Identification

Parade was concerned. It was held that such identification of

the accused on the basis of the photograph is to be proved

under proper procedure of Test Identification Parade

prescribed under the law. However, in the present case, we

are concerned with identification of the corpse, the contents

in the photograph is the dead body, so the decision in the

case of Kartar Singh is not applicable.

94 Let's advert to the law on the point of proof of

document contemplated under sections 61 and 63 of the

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Indian Evidence Act. Section 61 states about the proof of

contents of the documents which can be proved either by

primary or secondary evidence. Section 63 describes what is

meant by secondary evidence and section 63 is necessarily to

be read alongwith section 65 under which the instances

wherein the secondary evidence relating to the documents

can be tendered. A document generally can be proved

through the author who writes the document or the person in

whose presence the document is written or who knows the

signature and hand-writing of the author. The contents of the

document and truthfulness of the contents of the document

are two aspects. The author of the document may be aware

of the contents and also the truthfulness of the contents. A

person, who knows or passed an order or who writes a letter

is supposed to be the best and competent witness on the

contents and truthfulness of those documents. However,

there may be a case where the author of the document is

aware only of the contents of the document but is not aware

about the truthfulness of the contents of the document.

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95 We rely on the landmark judgment of the

Supreme Court in Mobarik Ali Ahmed vs. State of

Bombay reported in AIR 1957 SC 857.

"....The proof of the genuineness of a document is
proof of the authorship of the document and is
proof of a fact like that of any other fact. The
evidence relating thereto may be direct or
circumstantial. It may consist of direct evidence
of a person who saw the document being written
or the signature being affixed. It may be proof of
the handwriting of the contents, or of the
signature, by one of the modes provided in ss. 45
and 47 of the Indian Evidence Act. It may also be
proved by internal evidence afforded by the
contents of the document. This last mode of proof
by the contents may be of considerable value
where the disputed document purports to be a
link in a chain of correspondence, some links in
which are proved to the satisfaction of the court.
In such a situation the person who is the recipient
of the document, be it either a letter or a
telegram, would be in a reasonably good position
both with reference to his prior knowledge of the
writing or the signature of the alleged sender,
limited though it may be, as also his knowledge of
the subject matter of the chain of

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correspondence, to speak to its authorship. In an
appropriate case the court may also be in a
position to judge whether the document
constitutes a genuine link in the chain of
correspondence and thus to determine its
authorship. We are unable, therefore, to say that
the approach adopted by the courts below in
arriving at the conclusion that the letters are
genuine is open to any serious legal objection.
The question, if any, can only be as to the
adequacy of the material on which the conclusion
as to the genuineness of the letters is arrived at.
That however is a matter which we cannot permit
to be canvassed before us. A few of the letters
said to have been received from the appellant, as
stated above, do not bear his signatures. These
were held to have been proved by the
circumstantial evidence as pointed out and we
see no objection thereto."

(Emphasis Added)

Thus, in short, we say that when the document

speaks for itself, then, the contents of the document itself is

the proof of the document and that document is to be

believed.

96 Though Mr. Ponda relied on Mobarak Ali, he

submitted that the ratio relied on by Mr. Venegavkar in

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the case of Mobarik Ali Ahmed cannot be attracted to the

facts of the present case. The photographer and the other

persons did not support the case of the prosecution and in

view of the fact that as the photographers did not say that

they took the photographs, the printout of the photographs

are not admissible in the evidence. On this point, he relied

on Ziyauddin Bukhari Vs. Brijmohan R. Mehra reported in

(1976) 2 SCC 17 and Tukaram Vs. Manikrao reported in AIR

2010 SC 965. He further relied on the reports of the forensic

expert in respect of the photographs of Saleha which is on

page No. 2034 of the paperbook and marked as Exh 324/H

colly. He pointed out that the reports disclose that the body

seen in the photographs purportedly of Saleha was not found

during the exhumation. The learned counsel submitted that

when the body of Saleha was not found at all, and the

photographer has refused the fact of taking photographs, the

prosecution has miserably failed to prove the photographs

and therefore, these photographs cannot be read in evidence

and relied upon.

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97 In the case of Mubarik Ali (supra), the appellant

was convicted under Section 420 r/w 34 of the IPC. In the

said case, there was exchange of letters sent by the accused

and the complainant from Karachi and Goa. The various

telegrams relied upon by the prosecution were held to have

been proved as legally admissible material as they were

written by the appellant. However, it may be noted that in

this case, the Supreme Court observed that a document can

also be proved on the basis of circumstantial evidence.

98 In the case of Ziyauddin Bukhari (supra),

the Supreme Court held that tape-recorded speeches are

also documents under Section 3 of the Evidence Act and it

was further held that they did not stand on different

footing than photographs. In the case of Ziyauddin, the

judgment and order of the High Court of Bombay

setting aside the election of the appellant Bukhari to the

Maharashtra State Legislative Assembly was challenged. In

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the said case, the evidence of tape recorded speeches and

admissibility of the said speeches was the issue before the

Supreme Court. The Supreme Court upheld the order of the

High Court and dismissed the appeal. The Supreme Court

referred and relied on the observations deduced by the High

Court from the case of R. Vs. Maksad Ali reported in (1965)

2 ALL E.R. 464. It held thus:-

".....

(a) The voice of the person alleged to be speaking
must be duly identified by the maker of the record or
by others who knew it.

(b) Accuracy of what was actually recorded had to
be proved by the maker of the record and

satisfactory evidence, direct or circumstantial, had to
be there so as to rule out possibilities of tampering
with the record.

(c) The subject matter recorded had to be shown
to be relevant according to rules of relevancy found
in the Evidence Act."

99 We have gone through the decisions and the

nature of the circumstances brought before the Court in

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respect of the photographs and if tested on the yardstick of

the three principles laid down in Ziyauddin Bukhari's case,

then, the photographs are in fact very much admissible.

100 In the case of Tukaram Vs. Manikrao (supra), the

issue was again proof of tape recorded audio video cassettes.

In the said case, the Supreme Court referred to the principles

laid down in Ziyauddin Bukhari's case which we have

already dealt with.

101 A person may write a report about the things

which have taken place or whatever he has seen. Factually,

he may be aware of the contents but he may not be aware of

the truthfulness of the documents. A scribe who takes down

the FIR falls in this category because he is aware of the

contents but not the truthfulness of the contents. However, a

Judge has to find out the truth and therefore, he has to accept

only the truthful contents and discard the contents which are

false in the process of scrutiny of evidence.

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102 Thus, mere proof of hand-writing of a document is

not a proof of all the contents or the facts stated in the

document. A party who wants to prove the document, is

required to lead evidence to that extent and apart from the

authorship of the document. Under section 61, the original

document can be presented before the Court through the

author, who created the document and it can be proved. So,

the contents of the document also can be proved by leading

primary evidence. However, when primary evidence is not

available, then, the document can be proved by tendering

secondary evidence. When the contents of the document is

the issue, then, it can be proved by admissible evidence i.e.,

through a person, who has a personal knowledge about the

contents of the document or the facts therein, which should

inspire confidence in the mind of a Judge about the

truthfulness of the document or also by other means.

103 It is necessary for the document to pass the first

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test of admissibility as contemplated under section 61, for its

proof before getting tested for its genuineness of contents. If

original document i.e primary evidence, is not available, then,

the secondary evidence can be tendered under section 63

read with section 65 of the Evidence Act. As per section

63(2), copies can be made from original by mechanical

processes which in themselves ensure the accuracy of the

copy and copies compared with such copies.

Section 63 reads thus:

63. Secondary evidence.--Secondary evidence
means and includes--

(1) ...

(2) copies made from the original by mechanical
processes which in themselves insure the accuracy
of the copy, and copies compared with such copies;

(3) ....

(4) ....

(5) oral accounts of the contents of a document
given by some person who has himself seen it.

Illustrations

(a) ...

(b) ....

(c) ...

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(d) Neither an oral account of a copy compared
with the original, nor an oral account of a
photograph or machine-copy of the original, is
secondary evidence of the original.

104            In     the         present        case,        the       documents               are

photographs. Under section 61, these photographs are

required to be proved through a photographer who took the

photographs and by producing the negatives and the

printouts. When a letter is written or a contract is created,

the idea, concept, decision, emotion or intention are

communicated or actualised through the document. Thus,

the basic fact which is to be proved is what was to be

communicated or expressed. Evidence is a process of

reproduction and collection. Thus, it is created, expressed,

manifested or reproduced in the document. However, in the

case of a photograph which is also a document, what is

captured is not only intention or decision but, an object,

expressing mood or showing a physical fact or status. It is a

picture. That particular object is the original fact which

exists or existed at the time when it was photographed.

When a photograph of a cheque is taken and produced, then

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the cheque is the original object and its photograph

alongwith negative is to be considered as a secondary

evidence; a photograph of a house is taken, then, the house

is a primary fact or primary evidence and negatives or

original printouts are in fact secondary evidence. Similar is

the situation in the present case, as these are the

photographs of the dead bodies of March, 2002 which cannot

be produced before the Court. The description of the dead

bodies is narrated through the witnesses or can be brought

on record through inquest panchanama (Exh 123) which can

be a circumstantial evidence to prove the existence of the

object in the photographs. To bring the photographs of the

dead bodies on record is the only best and available mode of

evidence, which is adopted by the prosecution.

105 Thus, the photographer is a person, whose role in

fact is like a scribe who writes FIR. If the photographer is not

available or he does not support the prosecution, then,

naturally, the negatives which is a primary evidence will not

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come on record because production of the photographs is

bound to go against the interest of the photographer. Under

such circumstances, when the printouts i.e., photographs are

produced, it is secondary evidence of the contents of the

original, under section 63 r/w 65 of the Evidence Act and

these photographs can be admitted. The original negatives if

not brought on record, if it is not possible for a party to prove

the original document, when it is out of reach due to

satisfactory reasons, then, secondary evidence is admissible

and can be tendered.

106 Thus, by production itself, the document can be

admitted in evidence. In the present case, the witnesses PW

10 and PW 28 did not support the prosecution and did not

admit that they took the photographs and therefore, we will

discuss the evidence relating to photographs.

107 We have gone through the evidence of the 4

relevant witnesses i.e., PW 10 Soni, PW 28 Bhavin Patel, who

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are on the point of taking photographs of the dead bodies on

5.3.2002 and 4.3.2002 respectively and PW 30 Vasudeo

Pandit and PW 32 Vinodbhai Prajapati. We have also

carefully read the evidence of PW 52 Vohaniya and PW 68

A.S. Tariyal, the police officers, who have recorded

statements of PW 10 and 28 respectively. The learned

Prosecutor for the CBI had cross-examined PW 10 and PW 28

at length and had contradicted both the witnesses on the

basis of their respective statements recorded by the police

officers. PW 10 Soni did not state and has refused that he

took photographs (Exhs. 59/9 to 59/17) on 5.3.2002. PW 28

Bhavin Patel has also denied that he took photographs (Exhs.

59/1 to 59/8) on 4.3.2002. The omissions from their

evidence are brought on record. PW 10 Soni has stated that

his statements were recorded on 5.3.2002, 14.3.2003 and

23.9.2003. PW 10 has stated that he did not recollect

whether his two statements were recorded on 14.3.2003 and

23.9.2003.

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108 In 2003, the matter was investigated by the

Godhra police and it was not transferred to the CBI. PW 52

Vohaniya who was a police officer from Godhra police has

stated that he has recorded the portion marked A from

statement dated 14.3.2003 of PW 10 Soni and also the

portion marked A and B from the statements dated 23.9.2003

of PW 10 Soni. It shows that at the behest of Limkheda

Police, Soni took photographs of 7 dead bodies including a

small girl in Kesharpur jungle on 5.3.2002.

109 In the evidence of PW 28 Bhavin Patel, the

prosecution has proved the omission through PW 68,

Mr.Tariyal. The statement of PW 28 was recorded by CBI on

30.1.2004 and it is marked as Exh 365 through CBI Officer

Mr.Tariyal. His entire statement dated 30.1.2004 recorded

by CBI is taken on record by way of omission in the cross-

examination and the said big portion is marked as B of Exh.

365. All these omissions in the evidence of PW 28 is a

significant circumstance. These omissions show that on

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4.3.2002, he was taken to Pannivel jungle to take out

photographs of dead bodies of Muslims from Randhikpur. This

clearly shows that the witnesses PW 10 and PW 28 were lying

before the Court and tried to suppress the truth, though they

went to the spot on respective dates and took the

photographs.

110 We are aware that we cannot seriously take these

omissions into consideration however, we can certainly take

into consideration the seizure memo of the photographs

dated 30.1.2004 which is marked Exh 363. The CBI Officer i.e

PW 68 Tariyal has seized these photographs Exhs. 59/9 to

59/17 from PW 28 Bhavin Patel along with negatives under

seizure memo Exh.363 dated 30.1.2004. Investigating

Officer PW 72 Sinha seized from PW 10 Soni 9 photographs

Exh. 59/1 to 59/8 of the dead bodies along with negatives

under the memorandum of seizure dated 7.1.2004 marked

Exh 109. There is also one more memorandum i.e of scene of

crime dated 6.1.2004 (Exh 348) that is drawn by PW 52

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Vohaniya in which PW 10 R.K. Soni professional photographer

is seen as witness. In addition PW 68 Tariyal has stated that

PW 10 R.K.Soni led them to where the bodies were found. If

as per PW 10 Soni he had never been to the spot to

photograph the dead bodies, how he could lead the police to

the spot in the jungle.

111 The camera i.e., Article 3, which was used for the

purpose of taking photographs was seized from PW 32

Vinodbhai under memorandum, which is marked Exh 366. In

addition, there is evidence of two police officers i.e. PW 72

Investigating Officer and PW 68 Tariyal specifically stating

that PW 10 Soni and PW 28 Bhavin handed over the

photographs [Exh. 59(1) to 59(17)] alongwith negatives to

them. We see no reason to disbelieve these two witnesses.

Just because they are policemen that is no reason to discard

their testimony.

112 In this connection, useful reference may be made

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to a decision of the Supreme Court in the case of State of

Kerala Vs M.M. Mathew, reported in (1978) 4 SCC 65 : 1978

SCC (Cri) 503 wherein it has observed that prima facie public

servants must be presumed to act honestly and

conscientiously and their evidence has to be assessed on its

intrinsic worth and cannot be discarded merely on the ground

that being public servants, they are interested in the success

of their case. Similar view was taken by the Supreme Court

in Dharmsingh Vs. State of Himachal Pradesh, reported in

2003 Cri.L.J. 2914.

113 In the case of Modan Singh Vs. State of

Rajasthan reported in (1978) 4 SCC 435 : 1979 SCC (Cri) 56 ,

the Supreme Court has observed that where the evidence of

the investigating officer who recovered the material objects is

convincing, the evidence need not be rejected on the ground

that witnesses did not support the prosecution version.

Similar view was expressed by the Supreme Court in the case

of Mohd. Aslam Vs. State of Maharashtra reported in

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(2001) 9 SCC 362 : 2002 SCC (Cri) 1024 .

114 In relation to witness turning hostile, the Supreme

Court in the case of Anter Singh Vs. State of Rajasthan

reported in (2004) 10 SCC 657 : 2005 SCC (Cri) 597 has

observed that even if witness turned hostile, which happens

very often in criminal cases, the evidence of the person who

effected the recovery would not stand vitiated.

115 In the case of Rameshbhai Mohanbhai Koli Ors

Vs State of Gujarat reported in (2011) 11 SCC 111, the

Supreme Court in paragraph 23 has observed thus:

" .......This Court in State of U.P. Vs. Krishna
Gopal Anr., (1988) 4 SCC 302 has held that
Courts of law have to judge the evidence before
them by applying the well recognized test of basic
human probabilities. Prima facie, public servants
must be presumed to act honestly and
conscientiously and their evidence has to be
assessed on its intrinsic worth and cannot be
discarded merely on the ground that being public
servants they are interested in the success of their

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case......."

116 In relation to the evidence of PW Nos. 10, 28, 30

and 32, Mr. Venegavkar placed reliance on the decision in the

case of State of U.P. Vs. Ramesh Prasad Misra and Anr.

reported in AIR 1996 SC 2766. In this case, the Supreme

Court held that evidence of a hostile witness would not be

totally rejected if spoken in favour of the prosecution or the

accused but required to be subjected to close scrutiny and

that portion of the evidence which is consistent with the case

of the prosecution or defence can be relied upon. A similar

view has been reiterated by the Supreme Court in Balu

Sonba Shinde Vs. State of Maharashtra reported in (2002)

7 SCC 543, Gagan Kanojia Anr. Vs State of Punjab

reported in (2006) 13 SCC 516; Radha Mohan Singh @ Lal

Saheb Ors. Vs. State of U.P. reported in AIR 2006 SC 951;

Sarvesh Naraian Shukla Vs. Daroga Singh Ors. reported

in AIR 2008 SC 320 and Subbu Singh Vs. State reported in

(2009) 6 SCC 462.

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117 Mr. Venegavkar stated that it is the prosecution

case that the photographs Exhs. 59/1 to 59/8 were taken by

PW 28 and photographs Exhs. 59/9 to 59/17 were taken by

PW 10 and these photographs were developed in Scanner

Colour Lab run by PW 30 Vasudev Pandit. Mr. Venegavkar

pointed out that PW 10 Soni has admitted that he knows

Scanner Colour Lab and he used to develop photos there. Mr.

Venegavkar further submitted that the photographs were

developed in Lab of PW 30 Vasudeo is seen from the fact

that the polythene of the negatives bore the words Scanner

Colour Lab, Godhra on it. This is admitted by PW 28

Bhavinkumar though he may have turned hostile. It is to be

noted that PW 30 Vasudeo had stated that he is running

Scanner Colour Lab in Godhra and the polythene jackets of

negatives (of photos Exhs. 59/1 to 59/8) belong to his colour

lab. This is in paragraph 3 of his evidence. In paragraph 7,

this witness had admitted that in Godhra, there is no other

Colour Lab named Scanner Colour Lab. From this, an

inference can definitely be drawn that the photographs were

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developed in his lab.

118 The evidence of PW 28 Bhavin shows that he was

present at the spot when the photographs were taken. This

can be seen from the fact that in paragraph 8 of his evidence,

he has stated that, "It is not true that I did not see blood lying

at the place. It is not true that the policemen had brought

petromax lantern at the said place." This shows that he was

present on 5.3.2002. He is not a panch witness, in such

circumstances, there was no occasion for him to remain

present at a far away spot in the jungle on 5.3.2002 except

for the fact that he had gone there to take out photographs.

It is also pertinent to note that photographs Exh. 59/1 to 59/8

were seized by PW 68 CBI Officer Tariyal from PW 28 Bhavin

Patel on 31.1.2004 vide seizure memo Exh. 363. PW 28

Bhavin has also admitted that his dated signatures are there

at the back of the photos Exh. 59/1 to 59/8 and the seizure

memo bears his signature. He has also stated that the

seizure memo bears the signature of Vinodbhai Prajapti (PW

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32) who is his father and his father was present when he

signed on seizure memo. If he did not take out photographs

Exh. 59/1 to 59/8 then in what circumstances, he came in

possession of these photographs and negatives is not

explained by him. The evidence of PW 68 Tariyal shows they

were seized from PW 28. We see no reason to disbelieve the

evidence of PW 68.

119 As far as PW 10 Soni is concerned, according to

the prosecution, photographs Exh. 59/9 to 59/17 were clicked

by him at the behest of Limkheda Police Station. Though, he

has turned hostile, he has admitted that Limkheda Police

Station used to call him for taking photos. At this stage, we

would like to refer to the documentary evidence relied upon

by Mr. Venegavkar i.e. a bill dated 14th March, 2002 (Exh.

292A) issued by PW 10 Soni of Rs.270/- for 18 copies of

photographs and thereafter a letter Exh. 292 sent by P.I.

Limkheda on 19th March, 2002 to the higher authority

regarding payment against this bill. Mr. Venegavkar

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submitted that this bill Exh. 292 shows that PW

10 had taken the photographs of corpses on 5.3.2002. These

photographs were seized under the seizure memo on 7 th

January, 2004 by PW 72 Sinha. The investigating officer PW

72 Sinha has stated that Photographs Exh. 59/9 to 59/17

were seized from PW 10 Soni under seizure memo Exh. 109

dated 7.1.2004. PW 10 Soni has admitted his signature on

the seizure memo Exh. 109. He has also admitted that his

signature is there on the back of these photographs. The

evidence of PW 72 Sinha shows that these photographs were

seized from PW 10 Soni. Soni is a photographer and

Limkheda Police Station used to call him to take photos. Soni

had even issued a bill to Limkheda Police Station in respect of

taking photographs. All these facts point out that he clicked

the photographs. PW 10 has not explained in what

circumstances he came in possession of these photographs

and negatives. In any event, we see no reason to disbelieve

the evidence of PW 72 Sinha who has stated that the said

photographs Exh. 59/9 to 59/17 were seized from PW 10 Soni.

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120 In paragraph 25 of her evidence, the prosecutrix

has identified bodies in the photographs and stated that

these bodies were of Haleema, 2 brothers of the prosecutrix,

her sister Munni, aunt Sugra, Saleha (daughter) and Shamim

(cousin of the prosecutrix). The incident has taken place on

3rd March, 2002 and bodies were buried on 5 th March, 2002.

Considering the evidence discussed above and the evidence

of PW 68 Tariyal and PW 72 Sinha, we believe that some

photographs were taken on 4th March, 2002 and some on 5th

March, 2002. On the point of burial, we rely on the evidence

of PW 73 Somabhai Chauhan, a panch to inquest

panchanama Exh 123. He is the husband of PW 55

Kampaben, who was Sarpanch of Randhikpur. Somabhai has

stated that on 5th March, 2002 the work of burial was done.

PW 13 Mukeshbhai Harijan has dug the pit to bury bodies on

5th March, 2002 and PW 15 Baria Ramsingh Nayaka has

supported the prosecution to certain extent on the point of

inquest, as he is the second panch to inquest panchnama.

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Baria has said that one old man who was present at the time

of inquest on 5th March, 2002 has identified the dead body of

a woman as Haleema.

OTHER PHOTOGRAPHS:

121 In the evidence, many photographs are brought on

record. The main photographs i.e., 17 photographs marked at

Exh 59/1 to 59/17 are the photographs of the dead bodies.

Some of the other photographs are copies of these

photographs. They are marked as Exh 324/a to 324/g.

Similarly, Exh 411/a and 411/b to 417/a and 417/b are the

copies of Exh 59.

122 There are four photographs marked exhibit 58/1 to

58/4. These are the photographs of the white colour jeep

(article 2) bearing registration No.GJ-20-A-3123, which stands

in the name of the wife of the accused No.12 Ramesh

Rupabhai Chandana.

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123 The other photographs Exh 135(1) to 135/15 were

taken on 13.3.2004 when the prosecutrix showed the spot to

CBI team.

124 Exh 320/1 to 320/18 are the photographs of only

clothes and the bones which were taken separately at the

time of drawing panchanama of exhumation of bodies during

the combing operations by CBI in 2004.

125 The photographs at Exh 337(1) to 337(39) are

of Panivela village road besides river bed, during the

combing operations by the CBI which took place on 29 th Jan.

2004 and 30th Jan. 2004. Exh 337/40 to 337/75 are also the

photographs of the same combing operations by the CBI on

29/30.1.2004. Photographs Exh 337/76 to 337/115 are

about exhumation of the bodies (bones) from a pit and they

are photographs of clothes and bones. Exh 337/116 to

337/119 are also photographs of combing operations by CBI.

Exh. 351/1 to 351/9 are the photographs of the places where

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the bodies (bones) were found.

126 There are some enlarged copies of the original

photographs at Exh 59/1 to 59/8. These photographs are

taken and marked at Exh 324/a to 324/h. These photographs

were sent to forensic department for the purpose of

comparison and opinion. There are also photographs at Exh

323/a collectively which are the additional copies of the

photographs of Exh 320/1 to 320/8 of the clothes which were

also sent to forensic department for comparison.

127 There is also Exh 309 collectively which are the

photographs of (Article 3) camera and also photographs of

the dead bodies which were also sent to CFSL. The

admissibility of the photographs of the spot which was shown

by the prosecutrix at the time of combing operation by CBI

and are marked Exh 337 is not disputed. The photographs

which were taken by combing team of the CBI between

28.1.2004 to 1.2.2004 are brought on record through the

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Investigating Officer and the photographer.

128 Mr. Ponda submitted that the photographs of the

body of Saleha is a false fact brought before the Court and

Saleha was not part of the group and did not die in the

incident.

129 The prosecution has relied on the evidence of

forensic expert. The C.A. (PW 56 Rudra) has proved reports

in respect of exhumation and the photographs. While giving

report, the forensic department has referred the postmortem

report of each body which is shown in the photograph and

after examining and comparing with the bones found in

exhumation and the postmortem notes and the photographs,

the opinion is given by the forensic expert whether there is a

co-relation between the photograph and the bones recovered

in exhumation. The description of the photograph No.

10, appearing on page 2034 of the paperbook is mentioned

as "body of the deceased i.e a girl was not recovered during

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the exhumation." Mr. Ponda relied on the relevant portion of

the forensic report Exh. 324/11 colly. which reads thus:-

"Photograph of 4.03.02
Photograph numbered A-10 shows the body of
a young girl child, dressed in a green frock and
mauve shorts. Reddish stains are visible over the
right side of the face. There appears to be an injury
near the right eye. Cause of death is not apparent
from the photograph.

Co-relation with bones recovered in exhumation.

Probability of matching: Does not appear to
match any of the sets recovered.

Co-relation with clothing recovered in exhumation
None of the items of clothing recovered during
exhumation match those seen in the photograph.

Opinion
The body of the deceased was not recovered
during exhumation."

130 The finding is not helpful to the defence but on the

contrary fortifies the case of the prosecution that Saleha's

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body was missing. It confirms that the body of Saleha was

there and the photographs by the first investigating team of

Limkheda Police Station who visited the spot on 4.3.2002

and took the photographs. However, on 5.3.2002, the body

was not found and there is no photograph of Saleha on the

next day. Her body was not buried along with 7 bodies and

therefore, her bones were not exhumed. These are very

important circumstances which show that the finding of

Saleha's body and subsequent missing of Saleha's body is

itself evidence against the accused. The Limkheda Police

made no effort to guard the dead bodies. It is possible that

the body being of a small child was carried away by wild

animals. It is pertinent to note that no suggestion is put to

the prosecutrix that she did not have a three year old

daughter by name Saleeha. The medical case papers of the

prosecutrix Exh. 138A when she was examined by PW 17 Dr.

Katti at Godhra Civil Hospital, show that the prosecutrix had

lost her minor daughter in the riots. The case paper Exh.

138A of the prosecutrix states that one full term normal

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delivery female died in riot. Moreover, the prosecutrix was

from Randhikpur village i.e. the same village as accused

nos.1 to 12 therefore, if Saleha the daughter of the

prosecutrix had died prior to the riots, the accused would

have produced such evidence or proved it by examining

some witness from the village. If Saleha did not die and was

still alive the accused would have produced evidence to that

effect. Thus, we find no merit in the submission of Mr. Ponda

that just because the body of Saleha was not found, Saleha

had not died in the incident.

CORPUS DELICTI

131 On the point of not finding of dead body of Saleha

or even the dead body of new born baby of Shamim, we

would like to rely on a decision of the Supreme Court in the

case of Ram Gulam Chaudhary and others Vs. State of

Bihar, reported in 2001 Cri.L.J. 4632. In the said decision, it

is observed that it is not at all necessary for a conviction for

murder that the corpus delicti be found. In the case of

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Brijesh Kumar Vs. State, reported in AIR 1958 All 514, it was

held that the failure on the part of the prosecution to recover

dead body will not indicate that there was no murder. In the

case of Rama Nand Vs. State of Himachal Pradesh, reported

in (1981) 2 SCR 444, it was held that even though the

corpus delicti was not found still an inference of guilt could

be drawn when the other circumstances established on

record were sufficient to lead to the conclusion that within all

human probability the victim was murdered by the accused.

In Sevaka Perumal Vs. State of Tamil Nadu, reported in

(1991) 3 SCC 471, it was held that it is not necessary or

essential to establish corpus delicti. Thus, even if the dead

body of Saleha or dead body of new born baby of Shamim

was not found, in the light of the evidence of the prosecutrix

it has to be held that the accused no.4 committed the murder

of Saleha and all the accused with the aid of Section 149 of

IPC, were liable for the death of Saleha and new born baby of

Shamim.

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APPRECIATION OF EVIDENCE OF THE PROSECUTRIX
ALONGWITH THE EVIDENCE OF OTHER WITNESSES:

132 The prosecutrix has taken the names of number of

persons whom she met before and after the incident. Her

evidence flows along parallel rivulets of those witnesses.

Whether the prosecutrix is a liar or a reliable witness, which

evidence is to be believed and which is to be discarded from

her evidence can be assessed on the touchstone of the

depositions of these witnesses. This case is different from

the other cases of murders and rape basically due to

manipulations, suppressions by the investigating team of

Limkheda police station and Gujarat Police due to which the

investigation was transferred by the Supreme Court to CBI.

133 The incident of murder and rape took place on

3.3.2002. The prosecutrix was along with her relatives and

was going on foot via Panivel to Sarjumi on kachha road. She

has stated that two jeeps arrived in which there were 25 to

30 persons, who alighted and they were armed with sharp

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edged weapons like sword, sickles and sticks. They started

assaulting them. They were shouting "Aa Raye Musalmano.

Emne Maro, Kapo" its verbatim translation is that "See these

are Muslims, assault them, cut them". She stated that those

persons were from village Randhikpur and she identified

them by name as accused Nos.1 Jaswantbhai Chaturbhai Nai,

accused No.2 Govindbhai Nai, accused No.3 Nareshkumar

Ramanlal Modhiya, accused No.4 Shailesh Chimanlal Bhatt,

accused No.5 Radheshyam Bhagwandas Shah @ Lala Vakil,

accused No.6 Bipinchandra Kanaiyalal Joshi @ Lala Doctor,

accused No.7 Kesharbhai Khimabhai Vohania, accused No.8

Pradip Ramanlal Modhiya, accused No.9 Bakabhai Khimabhai

Vohania, accused No.10 Rajubhai Babulal Soni, accused

No.11 Mitesh Chimanlal Bhatt and accused No.12 Ramesh

Rupabhai Chandana. Apart from these 12 accused, there

were also others and she stated that she might be able to

identify others. Thereafter, the prosecutrix and other persons

in her group started running. Saleha, her 3½ year old

daughter was with her. According to her, Shailesh Bhatt

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(accused No.4), snatched Saleha and smashed her on the

rocky ground. Thereafter, accused No.1 Jaswant Nai, accused

No.2 Govindbhai Nai and accused No.3 Nareshkumar

Ramanlal Modhiya caught her. They tore her clothes. They

took her beneath a tree. Jaswant Nai was carrying a sword.

He hit her but she tried to ward off the blow of sword due to

which she got injury on her left palm. Govind Nai and Naresh

Modhiya caught hold of her hands and Govind Nai was about

to put his leg on her neck. At that time, she found that

nobody was there to save her because her family members

were being assaulted. Their clothes were torn off. At that

time, she was pregnant. She pleaded to leave her as she was

pregnant. However, accused Nos.1, 2 and 3 raped her. She

became unconscious and when she became conscious, she

found that she was naked and the dead bodies of her family

members were lying around. She was scared. She found one

petticoat, which she wore. Then, she climbed the hill in

squatting position. She did not try to know whose dead

bodies were lying there as she was scared. She spent the

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entire day and night hiding herself on the hillock. The next

morning, she was thirsty and hence, she descended the

hillock from the other side. There was a hand pump. At that

time, she met an adivasi lady i.e., PW 11 Sumaliben.

Thereafter the prosecutrix met DW 2 Vanraj and PW 27

Natwarbhai (Homeguards). She sought help from them and

they took her to Limkheda Police Station.

134 This is the core of the evidence of the prosecutrix.

Whether the prosecutrix is to be believed or not is the central

issue of this case. The defence has tried to assail the

evidence of the prosecutrix in every possible way, especially

by pointing out each and every omission and contradiction in

the statements of the witnesses whom she met first in the

initial days prior to the incident and after the incident, by

pointing out the contradictions and omissions from the

deposition of the prosecutrix in the Court and in relation to

the other witnesses and thus, we now proceed to analyse her

evidence and her previous statements along with the

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evidence of other witnesses. Out of the witnesses, who were

examined, some of them did not support the prosecution and

many were examined as defence witnesses. For the sake of

convenience, we deal with the evidence of both the

prosecution and defence witnesses together as there is a

logical sequence in the chain of persons whom the

prosecutrix met. Thus, these witnesses can be categorized

as follows:

       Group 1                Group 2                               Group 3                    Group 4
(9 persons from (Prior to the assault) (on 4.3.2002;) (whom the prosecutrix
Randhikpur who met on 5th, 6th and 7th
corroborated that March, 2002)
arson and looting took
place in Randhikpur)
PW2 Faruqbhai Pinjara The persons whom the The persons whom the a) 5.3.2002:
prosecutrix met, when prosecutrix met after i) PW9 Dr.Mahato
PW4 Salim Ghanchi she was moving with the assault: ii) DW7 Ushaben
her group prior to the Kishori
PW19 Feroz Ghachi assault: a) prior to going to iii)PW3 Sugra Issa
Limkheda police stn. iv) PW5 Sharifa
PW25 Siraj Ghachi i) PW33 Bijalbhai Damor
i) PW11 Sumaliben
PW26 Imtiyaz Ghachi ii) PW6 Zaitoon Atila Jasubhai Patel b) 6.3.2002:
i) PW18 Jayanti Ravi
PW31 Rasool Umer iii) PW21 Salim ii) DW2 Vanrajsingh ii) PW23 Govindbhai
Rampuria Raibhansingh Dhingra Patel
PW45 Sayed Salam
iv) PW20 Nayak iii) PW27 Natwarbhai
PW46 Salim Ghanchi Kikabhai Bamnia c) 7.3.2002:
i) PW 17 Dr.Rohini
PW47 Sattar Ghanchi b)At Limkheda police Katti
stn: ii) DW 3 Dr. Geeta
Pisagar

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i) DW1 Budhsingh
Mathurbhai Patel

ii) DW5 Jaisinghbhai
Hirabhai Patel,

iii) DW6 Chandubhai
Tariyad

iv) PW7 Madina Siraj
Patel

v) PW19 Firoz Abdul
Sattar Ghachi,

GROUP 1:

135 It is the case of the prosecutrix that next day, after

Godhra incident, there was arson and looting in their village,

hence, they all left their residence and started running. She

saw houses being burnt. This was the reason for the

prosecutrix to leave village Randhikpur. That arson and

looting took place is corroborated by the evidence of PW 2

Pinjara, PW 4 Salim Ghachi, PW 19 Phiroz Ghachi, PW 25 Siraj

Ghachi, PW 26 Imtiyaz Ghachi, PW 31 Rasul Umer, PW 45

Sayyad Salam, PW 46 Salim Ghanchi and PW 47 Sattar

Ghanchi.

136 The first set of witnesses speak about riots taking

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place in village Randhikpur on the next day of the Godhra

train burning incident due to which Muslim people from

village Randhikpur fled from the village. PW 2 Faruqbhai and

PW 4 Salim state about riots which took place on the next

day of Godhra train burning incident. They also speak about

people running away from the village.

137 PW 19 Phiroz Ghachi has stated that he was a

resident of Randhikpur. He has stated that the next day

after Godhra riots at around 10.30 a.m., there was stone

throwing on his residence. He noticed accused No. 8

Pradipbhai Modhiya in the mob (identification of the accused

is not disputed by the defence). He also mentioned that

there were other persons in the mob who were throwing

stones. On account of this, he and his family fled from their

residence. They fled to the jungle and stayed there for two

days. Thereafter, they were taken to Limkheda Police

Station.

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138 PW 25 Siraj Ghachi has stated that he and his

family were residing at village Randhikpur. On the next day

of Godhra train burning incident, at about 10.15 a.m., mob

was giving slogans in Gujrati, 'Cut Muslims, kill Muslims'. He

saw accused No. 4 Shailesh Bhat and accused No. 9 Bakabhai

Vohania in the mob. On seeing this, he ran away from his

residence with his family to village Chundadi. At Chundadi,

they boarded police van and were taken to Police Station and

thereafter to Godhra Relief Camp. He has further stated that

his house at village Randhikpur was burnt down and his

belongings were looted.

139 PW 26 Imtiyaz Ghachi has stated that he was

residing in Randhikpur. Next day following the Godhra train

burning incident, mob came to their village. He saw accused

No. 3 Naresh Modhiya, accused No. 8 Pradeep Modhiya and

others in the mob (identification is not disputed). Some of

the people in the mob were shouting, "Kill", hence, he along

with his mother and sister fled from their residence. They

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stayed in the residence of one Parmar for two days.

Thereafter, they went to Police Station in a police van. While

they were taken to Police Station, he passed his residence

and he saw his residence was burnt down and his belongings

were looted.

140 PW 31 Rasool has stated that he was a resident of

village Randhikpur. Riots broke out in village Randhikpur on

the next day following the Godhra train burning incident.

Mob armed with weapons and articles for arson was seen

moving through the village. They were shouting slogans,

"Cut and kill Muslims". They started burning the houses. He

identified accused No. 11 Mitesh Bhatt and accused No. 12

Rameshbhai Chandana as being part of the mob

(identification of the accused is not disputed). To save

himself, he ran towards the jungle. Then he went to village

Pipliya. He stayed there for three days. Thereafter, he was

taken in a police vehicle to Police Station. Thereafter, he was

taken to Godhra Relief Camp.

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141 PW 45 Sayyed Salam has stated that he was from

Randhikpur. On the day following Godhra train burning

incident, riots broke out in village Randhikpur. A mob of 100

to 150 persons collected in village Randhikpur at around 10-

11 a.m. He saw accused No. 7 Kesar Vohania who was part

of the mob. The mob was shouting, "Kill Muslims". Petrol

was spread on his residence and one person from the mob lit

his residence. As a result, his residence was burnt down. He

ran away from Randhikpur.

142 PW 46 Salim Ghanchi has stated that he was a

resident of Randhikpur. On the day following Godhra train

burning incident, riots broke out in village Randhikpur. He

saw mob of 50 to 60 persons who were Hindus were involved

in riots. This was at about 10 to 10.30 a.m. They were

shouting, "Kill the Muslims". He identified accused No. 8

Pradeepbhai Modhiya as being part of the mob. He ran

towards his residence. Thereafter, he and his family

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members left their home. They stayed in the house of one

person for 7 to 8 days. Thereafter, they were taken to Police

Station and thereafter to Godhra Relief Camp.

143 PW 47 Sattar Ghanchi has stated that he was a

resident of Randhikpur. On the day following Godhra train

burning, riots broke out in village Randhikpur around 10 to

10.30 a.m. He saw mob of 100 to 150 persons approaching

his residence. They were shouting slogans, "Kill, loot and

burn Muslims". He saw that accused No. 1 Jasvantbhai Nai

and accused No. 2 Govindbhai Nai were part of the mob. The

mob was throwing fire balls on their residence. He, therefore,

left his residence and went to village Piplia. Thereafter, he

went in a police van to the Police Station. From there, he was

taken to Godhra Relief Camp in a police van.

144 Thus, the evidence of the above witnesses

corroborates the story of the prosecutrix that on the day

following Godhra train burning incident, riots took place in

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village Randhikpur. A huge mob collected, they were

shouting slogans against Muslims and they were burning

houses. It was on account of this that the prosecutrix also

fled from her residence along with some of her relatives.

Thereafter, the prosecutrix moved from village to village till

on 3.3.2002, she reached near Pannivel where the incident

occurred.

145 Mr. Ponda assailed the evidence of the above

witnesses and submitted that their evidence cannot be

believed though they are victims of riots because no

complaints were lodged by them in relation to the fact that

the mob burnt the houses of some of these witnesses. He

further submitted that their statements were recorded after

inordinate delay.

146 The learned counsel Mr. Ponda argued that almost

all the witnesses i.e PW 4, PW 19, PW 25, PW 26, PW 31, PW

45, PW 46 and PW 47 were related to each other, however,

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none of them lodged any complaint against the acts of

accused persons in relation to the rioting. He submitted that

they had four good chances to lodge the complaint. Firstly,

after leaving Randhikpur when they all went to Limkheda

Police Station to seek shelter, none of them gave complaint.

They all have admitted that they did not lodge complaint

except PW 26 Imitiaz Ghachi and PW 31 Rasul Ghachi. These

two witnesses though have stated that they lodged the

complaint, they did not produce a copy of the said complaint

lodged by them with the police station though in the cross-

examination, opportunity was given to them. Secondly, when

they all were taken to Godhra Relief Camp, many police

officers, revenue officers, Collector like PW 18 Jayanti Ravi

visited Godhra Relief camp and they enquired about the

refugees. None of these witnesses came forward to register

any complaint against the accused persons. Thirdly he

pointed out that in the evidence of PW 2 Faruqbhai the

defence has brought admissions on record that Limkheda

police station and the Limkheda Court were situated very

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close to each other, hence, even if the police did not record

their complaints, they could have filed private complaints

before the Court. Fourthly, all these refugees including the

group of 9 witnesses were given residence at Rahimatbaug.

They were all occupying the tenements in the same area and

stayed there nearly 1½ to 2 years. The admissions are

brought out in the cross-examination from all these

witnesses that they used to meet and discuss about the riot.

Thus, Mr. Ponda submitted that lodging of complaint was

expected from these witnesses and their not doing so, shows

that they are got up witnesses.

147 The submissions and the points raised by the

learned counsel Mr. Ponda about non-lodging of the

complaint by the witnesses about the riot and the case of the

prosecutrix is answered by these witnesses in their

respective evidence itself. These witnesses undoubtedly are

the victims of riot. They were all residents of Randhikpur but

lost their houses in the riot. Their houses were burnt or

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destroyed by the violent mob in Randhikpur. Out of fear,

they left Randhikpur and did not go back to their village.

Thus, they left not only their houses but also their

occupations and parted from their family members. The

witnesses like PW 2, PW 4, PW 26, PW 31 have stated that

the police were not in a mood to record any complaint of the

Muslims. PW 31 Rasul Umer has stated that "I discussed the

issue of reluctance of revenue and police to record the

complaint of the inmates of the camp". Thus, when these

witnesses found police non-cooperative or hostile, then

naturally they were discouraged to lodge any complaint at

any place where they were staying. By lodging complaint

against the hindus who were in majority or the assailants who

were also Hindus, might have led to a situation more

dangerous and traumatic and the complainant could have

invited further trouble. The apprehension and fear in the

minds of these witnesses was not imaginary but it was

supported by the physical fact of their running away from

their village in great haste as the houses of Muslims were

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being burned down. We do not find anything illegal in the

appeal made by CBI to the residents in Rahimatbaug Colony

to come forward and give statement in respect of incident of

riot and the prosecutrix. The police have power to appeal to

the people to give information to them in respect of incident

which had occurred earlier. Such appeal helps the people to

embolden themselves and they come forward and give

information to the police which can be recorded. Therefore,

the statement of most of the witnesses were recorded on 6 th

and 7th March, 2004 when CBI was entrusted to investigate

the matter. Looking to the peculiar facts and circumstances

of this case, delay in recording the statement of these

witnesses would not render them unreliable.

GROUP 2:

148 Group 2 consists of persons whom the prosecutrix

met during her journey from Randhikpur from 28 th February,

2002 till 3.3.2002 i.e., the persons whom she met prior to the

incident of assault. On 3.3.2002 after the incident, the

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prosecutrix met nobody but she was hiding between boulders

on top of the hill. The prosecutrix and her family members

started from Randhikpur, i.e. the village where they were

residing. They went to Kadakiyabhai, who was Sarpanch of

Randhikpur. From Kadakiyabhai they went to Chundadi to

the village of PW 33 Bijalbhai Damor who provided food and

water to them on 28.2.2002. From Bijalbhai's house they

went to Kuwajar. At Kuwajar Shamim started having labour

pain. There they met PW 21 Salim who took them to the

house of midwife PW 6 Zaitoon where Shamim delivered a

baby girl. Thereafter they went to Khudra. There they met

PW 20 Nanjibhai Nayak. They stayed there for two days, took

clothes from Nanjibhai Nayak and left for Sarjumi via

Chapparwad and were going by kachha road via Panivel when

the incident occurred. PW 8 Saddam aged 8 years one

Hussain @ Mohsin aged 3 / 4 years are the only survivors

along with the prosecutrix.

ON MEETING OTHER PERSONS BEFORE ASSAULT RAPE:

149 Mr. Ponda referred to the evidence of 4 witnesses,

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i.e., PW 33 Bijalbhai Damor, PW 21 Salim Rasul Rampuria, PW

6 Zaitoon Atila and PW 20 Nanjibhai Nayak, and he pointed

out the omissions and contradictions in the evidence of all

these witnesses. He submitted that the statements of PW 21

Salim Rampuria and PW 20 Nayak were recorded by CBI

respectively on 13th February, 2004 and 1st April, 2004. He

submitted that there are omissions in the statements of these

witnesses. The learned counsel argued that the prosecutrix

has stated that first they went to Kadakiyabhai, who is

Sarpanch of Randhikpur. However, she did not mention the

name of Kadakiyabhai in the FIR (Exh 56). She has stated that

thereafter they went to Chundadi at the residence of PW 33

Bijalbhai. In her examination-in-chief in paragraph 36 she

has stated that Bijalbhai had given them food and water,

however, in paragraph 88 she admitted that she did not meet

Bijalbhai though food and water was provided to them.

150 The contradictions which are brought on record in

respect of meeting PW 33 Bijalbhai Damor is also not

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significant. The prosecutrix has stated in her examination-in-

chief that Bijalbhai provided food and water, however, she

accepted in paragraph 88 that she did not meet Bijalbhai but

food and water was provided to her. So Bijalbhai provided

water and food means it is provided not personally by him

but at his behest. No doubt PW 33 Bijalbhai does not state

anything at all about the prosecutrix and her group coming

to him and he providing food to them. No doubt, this is true,

however, the evidence of PW 6 Zaitoon shows that on the

second day after Godhra riots i.e on Thursday, 4 to 5 Muslim

women came to her residence at Kuwajar and they were from

Randhikpur. One of them i.e Shamim was to deliver a child.

Shamim delivered a baby girl around midnight. Thus, the

evidence of PW 6 Zaitoon corroborates the evidence of the

prosecutrix.

151 First, the group proceeded and went to the house

of Sarpanch Kadkiyabhai. There, they found that it was

unsafe. So, they went to Chundadi, where at the house of PW

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33 Damor, who was an ex-MLA of village Randhikpur food and

water was provided to the group of the prosecutrix and

thereafter, on that day they went to Kuwajar and took shelter

in a mosque. There Shamim who was pregnant was taken to

the house of midwife Zaitoon and Shamim delivered a baby

with the assistance of PW 6 Zaitoon. The learned Defence

Counsel Mr Ponda on the point of this journey of the

prosecutrix and delivery of Shamim raised number of

objections.

152 Mr. Ponda, while assailing the evidence of the

prosecutrix further submitted that in fact Shamim had not

delivered a baby at Kuwajar. As per the evidence of the

prosecutrix, Shamim delivered a baby at Kuwajar at the

residence of PW 6 Zaitoon. Mr. Ponda submitted that neither

the prosecutrix nor PW 6 Zaitoon make a mention about PW

21 Salim. However, PW 21 Salim who is brother-in-law of

Zaitoon has stated that on the next day of Godhra riot at

around 9 to 10 p.m., 16 to 17 people from Randhikpur arrived

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at his residence. One lady was to deliver a baby, so he took

the said lady and some persons from her group to Zaitoon

(PW 6) who was a midwife. Mr. Ponda pointed out that

however, all this is absent in the evidence of the prosecutrix

and Zaitoon. PW6 Zaitoon has stated in her evidence that 4

to 5 people visited her house and one of them was to deliver

a child. This according to Mr. Ponda completely ruled out

Salim's evidence.

153 On the point of journey of the prosecutrix and her

group, Mr. Ponda submitted that the story does not appear

true. He further argued that PW 6 Zaitoon does not

corroborate the prosecutrix. Mr. Ponda pointed out that a

question was put to PW 6 Zaitoon as to whether she was

maintaining registers of birth or not, to which she answered

in affirmative. However, no such register is produced before

the Court. Mr. Ponda submitted that such register would

have been contemporaneous document which would have

corroborated the prosecutrix and Zaitoon. Mr. Ponda

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submitted that the fact that register of birth / delivery, was

not produced by the prosecution falsifies evidence of Zaitoon

and the prosecutrix however, considering the situation of

Kuwajar and the circumstances under which the delivery has

taken place, at that time, the entry about birth might not

have been entered. In our view, non production of birth

register would not affect the credibility of the evidence of

Zaitoon or the prosecutrix.

154 Mr. Ponda submitted that moreover, Zaitoon has

admitted in paragraph 12 of her evidence that she left

Kuwajar on next day of Godhra riots, i.e., on 28th February,

2002. However, as per the evidence of the prosecutrix and

Zaitoon, Shamim delivered a baby girl on the next day of

Godhra riots, i.e., on 28 th February, 2002. The admissions are

sought to be relied upon by the defence in the cross-

examination of PW 6 Zaitoon that after Godhra riots her

house was attacked by Adivasis and therefore, she left the

house. Mr. Ponda submitted that if Zaitoon has left the

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house on the same day, how it was possible for her to attend

the delivery of Shamim at her residence. Thus, this falsifies

the whole story of delivery of Shamim at her house.

155 Learned Counsel Mr. Ponda has raised one

question on the evidence of the prosecutrix on the point of

delivery of Shamim, which has taken place on the night of

28.2.2002 at the house of PW 6 Zaitoon. He submitted that

there is discrepancy in the evidence of PW 21 Salim about

who offered food and shelter in the beginning at Kuwajar to

the group of the prosecutrix and who took Shamim to the

house of PW 6 Zaitoon. He submitted whether the group

stayed at mosque; whether Shamim was taken to PW 6

Zaitoon directly from the mosque or from the house of Salim

is not clear. The witnesses have made different statements to

that extent. He pointed out from the evidence of PW 6

Zaitoon that in the cross-examination, she admitted that

when there was stone pelting by adivasis, she left her house

immediately on the next day of the Godhra riots. Thus, Mr.

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Ponda contended that in fact, PW6 Zaitoon was not present

at her residence on 28th i.e., on Wednesday, as she had

accepted in her further cross-examination that she left the

house and went to the jungle. The learned counsel Mr. Ponda

thus made a point that Shamim has in fact not delivered a

baby at Kuwajar.

156 The learned Prosecutor Mr. Venegavkar relied on

the evidence of the prosecutrix. He submitted that she has

specifically stated that when the group went to Kuwajar,

Shamim had delivery pains and so Shamim was taken to PW

6 Zaitoon. The prosecutrix went along with Shamim and

there, Shamim delivered a baby girl. The learned Prosecutor

submitted that PW 6 Zaitoon, PW 21 Salim and PW 20 Nayak

are the witnesses, who corroborate the evidence of the

prosecutrix on the point of delivery of Shamim. He pointed

out that PW 6 Zaitoon has categorically stated that she left

her residence not on day of breaking of Godhra riots but on

Friday that is the day next after the delivery. Mr. Venegavkar

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submitted that though Mr.Ponda tried to make capital of her

statement that there was stone throwing on her residence on

the day Godhra riots broke and hence, she was afraid and left

her residence, this statement does not mean she did not

come back to her residence thereafter. Mr. Venegavkar

submitted that her categorical statement that she left the

house the day next of the delivery cannot be brushed aside

and ignored. Mr. Venegavkar drew our attention to evidence

of PW 21 Salim where he has stated that 16 to 17 persons

from Randhikpur came to him. One of them was pregnant,

hence, he took her to PW 6 Zaitoon who was a mid wife. Mr.

Venegavkar pointed out that PW 20 Nayak in paragraph 8 of

his cross-examination has specifically stated that in the group

of the prosecutrix, there were four women, one girl and one

recently born baby and rest were male persons. He

submitted that the omissions in respect of this incident in the

statement of the prosecutrix and also in the statement of

Zaitoon cannot be taken into account as the earlier

statements of the prosecutrix were recorded by Limkheda

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police station.

157 Regarding Zaitoon leaving the house after stone

pelting and running away to the jungle, the learned trial

Judge put Court questions to her in order to remove doubt as

to whether Shamim really delivered at the house of

Zaitoon or not? While answering to the Court questions,

she said that she attended the delivery of Shamim and

thereafter she left her house and went to Jungle. Thereafter

questions were put to Zaitoon by the prosecution as well as

the defence. Zaitoon was cross-examined and she admitted

that after Godhra incident, next day there were riots and

stone pelting and after that she left the house immediately.

Zaitoon answered in re-examination that she left the house

after Godhra riots and only after delivery of Shamim, she left

the house and ran away. Further, in order to dislodge the

witness, a question was put that on Wednesday, there were

Godhra riots and on the next day, there was stone pelting

and so she immediately left the house. In the cross-

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examination, a skillful question was asked, however, the

answer given to that question cannot be read in isolation but

in the context with the answer given by the witness in her re-

examination which is to be taken into account. If context is

considered, then, the effect of re-examination is not washed

out by further cross-examination. A confusion was created

by changing the sequence of the incidents. Zaitoon is found

firm on three points - firstly that Shamim delivered a baby at

her house; secondly, there was attack by Adivasis and stone

pelting and thirdly, after delivery she left the house. The

evidence of PW 21 Salim Rampuria is also to be read along

with PW 6 Zaitoon. He has corroborated Zaitoon on the point

that one pregnant lady was there and Zaitoon had attended

her. The train burning of kar sevaks took place on 27.2.2002

at Godhra. Next day, riots exploded in district Godhra and

Dahod i.e., on Thursday, 28.2.2002. On the same day, the

prosecutrix and the group left Randhikpur; went to Chundadi,

reached Kuwajar and at night, Shamim delivered a baby and

thereafter, PW 6 Zaitoon ran away from Kuwajar on Friday.

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The omissions in the evidence of PW 21 are insignificant and

we are of the opinion that evidence of PW 21 Salim

corroborates PW 6 Zaitoon in all material particulars.

158 Thereafter the prosecutrix and her group went to

Khudra and stayed in the house of PW 20 Nanjibhai Nayak.

Mr. Ponda further argued that evidence of PW 20 Nanjibhai

Nayak is full of falsehood. As per the case of the prosecutrix,

she met Nanjibhai on the next day of delivery. Mr. Ponda

submitted that Nanjibhai has mentioned the timing in the

examination-in-chief to suit the story of the prosecutrix.

Nanjibhai has admitted that he did not state the date or

timing when he gave statement to CBI. Mr. Ponda further

submitted that as per the evidence of the prosecutrix and

Nanjibhai, 4 ghagras and 4 lehengas were provided by

Nanjibhai to the prosecutrix and her group. He submitted

that it was necessary for CBI to confront the prosecutrix and

Nanjibhai with each other, however, it was not done.

Similarly, as per the evidence of the prosecutrix and PW 3

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Sugra, Sugra handed over one green colour lehenga of the

prosecutrix to the police, which is marked as Article 5A. So,

this lehenga should have been shown to Nanjibhai to confirm

whether this was one of the lehengas which he provided to

the group of the prosecutrix. He contended Nanjibhai

Nayak's evidence on the number of children is also not

reliable as to whether 16 to 17 people with 3 ½ years old

child and 2 days old baby were proceeding or not is doubtful.

Thus, he submitted that if the evidence of Nanjibhai is tested

it does not corroborate the evidence of the prosecutrix.

159 As far as PW 20 Nanjibhai is concerned, he has

stated that about 16 to 17 persons were seen by him running

helter skelter. They were from Randhikpur. This

corroborates the prosecutrix. Nanjibhai further stated that he

gave them food, water and clothes. In paragraph 8, he has

stated that four women, one girl and one recently born baby

and rest were males in that group. This in fact fully

corroborates the evidence of the prosecutrix that they stayed

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at the house of PW 20 Nayak. The prosecutrix and those in

her group were from Randhikpur. Moreover, Shamim had just

delivered a baby and the prosecutrix stated that one person

from Nayak tribe took pity on them as Shamim had a new

born child and he provided them with food, water and clothes

and gave them shelter for two days.

160 We have perused the evidence of the prosecutrix,

PW 6 Zaitoon, PW 21 Salim Rasul Rampuria and PW 20

Nanjibhai Nayak. The prosecutrix has narrated certain

important incidents which had taken place when the group

was running away from Randhikpur after Godhra riots. In

pararaph 40, in her examination in chief, she has given the

names of all the persons, who have moved along with her.

That means the persons, who formed the group and became

victims of the assailants on 3.3.2002. She has specifically

mentioned the name of Shamim in her substantive evidence.

The omissions brought on record by the defence are mainly

from the statement i.e., FIR and from the statement dated

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13.3.2002, which was recorded by the accused persons i.e

accused Nos. 17 and 16 respectively. These two statements

were recorded by the police of Limkheda police station. From

the beginning, the stand of the prosecution is consistent that

the statements recorded by the police of Limkheda police

station, who are accused i.e., accused Nos.16 , 17 are not to

be relied on and the contents therein cannot be construed as

true as they were recorded by the accused. The CBI has

recorded further 3 statements of the prosecutrix and no

omissions in respect of delivery of Shamim are brought on

record from those statements.

161 Not finding of the body of newly born baby of

Shamim at the time of panchanama of the spot or inquest

panchnama is one more aspect which Mr. Ponda tried to take

advantage of.

162 According to the prosecutrix, the group on

1.3.2002, moved to Khudra and they took refuge at the house

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of PW 20 Nayak, who offered them food, shelter and clothes

to women. PW 20 Nayak has said in the examination in chief

that in the group, he noticed one lady with a newly born

baby. Non-finding of body of the newly born baby at the time

of the spot panchanama itself cannot disprove the fact of

birth of baby at the house of PW 6 Zaitoon when ocular

evidence of the witnesses on this point is found consistent

and believable. Thus, the challenge given to the delivery of

Shamim does not sustain and according to us, the

prosecution has established that Shamim had delivered a

baby girl at the house of PW 6 Zaitoon at Kuwajar.

GROUP 3:

G ROUP OF PERSONS THE PROSECUTRIX MET ON 4.3.2002
:

163            On       4.3.2002,              the       prosecutrix            met        PW        11

Sumaliben Patel at handpump; DW 2 Vanrajsingh

Raibhansingh Dhingra and PW 27 Natwarbhai Kikabhai

Bamnia, Home Guards, who took her to Limkheda police

station; DW 1 Budhsingh Mathurbhai Patel, the writer

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constable in Limkheda police station, who is one of the

scribes of FIR Exh. 56; DW 6 Chandubhai A. Tariyad, and DW

5 Jaisinghbhai Hirabhai Patel, police constables, who were

present when FIR Exh. 56 was prepared on 4.3.2002. At

Limkheda police station, the prosecutrix met PW 7 Madina

Siraj Patel, and PW 19 Firoz Abdul Sattar Ghachi, who had

sought refuge at Limkheda police station.

164 According to the prosecutrix, when she came

down from the hillock, she met PW 11 Sumaliben. According

to the prosecutrix, as she was semi-nude, when she met the

adivasi lady, she asked the lady to provide her some

clothes. At that time, Sumaliben gave her blouse and odni.

Mr. Ponda submitted that the entire story of the prosecutrix

of assault and rape and murder is false which can be seen

from the fact that the prosecutrix did not disclose about rape

and murder to Sumaliben. He submitted that if the story of

the prosecutrix was true, the prosecutrix would have

immediately disclosed this fact to Sumaliben. He argued that

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if the prosecutrix was only in petticoat, i.e., semi nude

condition, then, it was obvious for any woman to tell the

reason for such condition to the other lady. This silence of

the prosecutrix shows that she never met PW 11 Sumaliben

and no such incident occurred. Moreover, production of the

petticoat, ghagra (article 5A, 6A) of the prosecutrix by PW 3

Sugra before police, is also doubtful as there was no reason

for Sugra to preserve that ghagra from March, 2002 till

March, 2004. Sumaliben also did not support the statement

of the prosecutrix that she was semi nude and when

Sumaliben met the prosecutrix, she provided clothes to her.

165 It is to be noted that Sumaliben is a hostile

witness. Along with the evidence of Sumaliben, it is

necessary to consider the evidence of DW 2 Vanraj Dhingra

and PW 27 Natwarbhai Bamnia as these were the two

persons whom the prosecutrix met on 4.3.2002 i.e. the next

day after the incident and before going to the police station.

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166 The prosecutrix has stated that after she met

Sumaliben, she drank water from hand-pump and washed her

face. She then saw one person in uniform (DW 2 Vanraj)

standing near one vehicle on kachcha road. He was in police

uniform. She ran to him. She asked him to save her and told

him that her family including her daughter was killed and she

was raped. He took her to Limkheda Police Station in a

vehicle. PW 27 Natwarbhai was with DW 1 (Vanraj). He has

stated that he and his commandant Vanraj left Home Guard

Office in a jeep around 7.00 a.m. on 4.3.2002. When they

were proceeding towards village Randhikpur, on the way they

learnt that riot took place and corpses were lying in

Kesharpur-Panivela hills, hence, they proceeded towards that

place. When they came near Kachcha road, they left the

jeep and made search for the corpses but could not locate

them. He and home-guards went up the hill. Commandant

Vanraj remained at the bottom of the hill. When he came

down from the hill, he saw one woman standing near the jeep

and commandant Vanraj was there but he could not know

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what was the talk between Vanraj and the lady. They took

the lady in the jeep to Limkheda Police Station.

167 DW 2 Vanraj has stated that on 4.3.2002 at about

7.30 a.m. they proceeded towards Limkheda. He was

accompanied by four home-guards including PW 27

Natwarbhai. When they were at the junction of four roads,

some people reported that there was a riot at Kesharpur,

hence, he proceeded towards Kesharpur. They found that

police were making enquiry in the vicinity of a small hill.

They proceeded towards the other side of the place i.e.

kachcha road leading to Panivela. There they got down and

started making search. After about 30 to 45 minutes, they

came back near the vehicle. There he found one lady near

the vehicle. She gave her name as "Bilkis". She told him

that she and her family members were returning home from

work at Vadodara and on the way, they were accosted by a

mob of 400 to 500 persons, therefore, they ran helter skelter

and in the process, she was separated from her family

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members. She further told that she did not know

whereabouts of her family members and she should be saved

and she should be taken to the police station, hence, they

took her to Limkheda Police Station.

168 Mr. Ponda submitted that though the prosecutrix

has stated that she met DW 2 Vanraj, her story is totally

different than the case of Vanraj. The prosecution dropped

DW2 Vanraj though he was a necessary witness for the

prosecution. Mr. Ponda submitted that therefore they

examined DW 2 Vanraj as defence witness. DW 2 Vanraj

arrived in a jeep on 4.3.2002 in the morning along with his

assistant PW27 Natwarbhai when he was going near Keshpur

jungle and carrying out search. Mr. Ponda submitted that this

witness has admitted the fact of meeting the prosecutrix on

that day as she approached them. According to Vanraj, she

told that when she and her family were returning home from

Vadodara on the way, she was attacked by a mob of 400 to

500 persons. Thereafter, she and her family members ran

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and in the process, she was separated from her family

members. She requested him to save her and take her to

police station and therefore, he took her in his vehicle and

handed her over to PSO at Limkheda police station. Mr.

Ponda referred to PW 27 Natwarbhai, who has confirmed the

fact that one woman i.e., the prosecutrix met commandant

DW 2 Vanraj on the way and it was DW 2, who talked with

her. However, he said he did not know what was the talk.

Mr.Ponda argued that all these three witnesses PW 11

Sumaliben, DW 2 Vanraj and PW 27 Natwarbhai are the key

witnesses whom the prosecutrix met soon after the incident,

and their evidence, in fact, has demolished the case of the

prosecution, as the prosecutrix did not disclose anything

about the rape or killing of her family members to them.

169 In reply, Mr. Venegavkar, the learned Counsel has

submitted that DW 2 Vanraj and PW 11 Sumaliben did not

support the prosecution and PW 27 Natwarbhai did not talk

with the prosecutrix directly but he relied on what DW 2

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Vanraj had stated. Mr. Venegavkar submitted that the

learned Prosecutor has cross-examined both DW 2 Vanraj and

PW 11 Sumaliben. He submitted that the defence has

deliberately tried to bring the case of 400 to 500 assailants

and Vanraj has deliberately said that they were coming from

Vadodara. Randhikpur and Kuwajar are in completely

different direction than Vadodara. The prosecutrix could not

have told DW2 Vanraj that she was coming from Vadodara

when she was coming from Kuwajar or even Randhikpur. He

pointed out that DW2 Vanraj was on duty. He was trying to

find out the dead bodies because Vanraj had received

message and directions from the authority to find out the

dead bodies which were lying in the jungle and when he was

in search of the bodies, he met the prosecutrix. His

statement was recorded by Gujarat CID on 14.9.2003 and

27.9.2003.

170 PW 11 Sumaliben was the first person who met the

prosecutrix at the hand pump after the prosecutrix

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descended the hillock. As per case of the prosecutrix, she

was in a petticoat and when the prosecutrix approached

Sumaliben, the Adivasi lady, was violent. Therefore, the

prosecutrix convinced her that she was like her and

thereafter, Sumaliben provided her clothes including blouse

and odni. Thereafter, as per the prosecutrix, she saw that

one police person came there in a vehicle. So, she ran

towards the vehicle.

171 PW 11 Sumaliben did not support the case of the

prosecution. PW 11 has stated in the examination in chief

that she did not provide clothes to the prosecutrix. Mr. Ponda

argued that why the prosecutrix did not disclose to

Sumaliben about the fact of rape and killing of her family

members. He argued that if the prosecutrix was only in a

petticoat, i.e., in a semi-nude condition, it was obvious for

any woman to tell the reason for her condition to the other

lady. In addition Sumaliben stated that when she met the

prosecutrix, she was wearing clothes and she did not say that

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she supplied clothes to the prosecutrix. Thus, Sumaliben did

not support the case of the prosecution.

172 DW 2 Vanraj is Commander in Home Guards, who

was given the duty of patrolling in a jeep with PW27

Natwarbhai near Panivel. He met the prosecutrix on 4.3.2002

but he did not say that she complained about killing of her

relatives and she was raped and also killing of her daughter.

173 As per the case of the prosecutrix, the first two

persons she met after the incident are PW11 Sumaliben and

DW2 Vanraj. However, both did not support the case of the

prosecution and they maintained a stand that the prosecutrix

did not say a word to them about the killing of her relatives

and rape on her. While appreciating the submissions of the

learned defence Counsel on this point, we keep in mind the

fact that these two witnesses have turned hostile. The

prosecutrix did not mention that she disclosed the fact of

rape or killing of her relatives to Sumaliben. She had asked

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for clothes and then, the lady offered blouse and odni to her.

Assuming that the prosecutrix was not fully clothed and was

wearing only petticoat, barely covering her body, it cannot be

expected that the prosecutrix ought to have disclosed about

the fatal incident to an unknown woman. The prosecutrix had

lost her two brothers, mother, sister and 3½ year old

daughter on the earlier day. She had witnessed the massacre

of all her near relatives who were with her. She had to leave

everything and she was walking and running from one place

to the other since last three days to find shelter and save

herself. Moreover, she was raped when she was 5 months

pregnant. This was a big trauma. Under such circumstances,

a woman may react in a totally different way and not as per

the expected behaviour in any other rape case.

174 The fact that the prosecutrix went to DW 2 Vanraj

is admitted by the prosecution and the defence. He was a

home guard person in the jeep. Naturally, the prosecutrix

thought him to be a police person and, therefore, her

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approach to him with a view that she might get some

protection is found logical. She told him the facts regarding

what had happened. Vanraj did not support the prosecution

and PW 27 Natwar, who is examined by the prosecution has

also in fact, deposed on the same lines as that of Vanraj. We

are of the opinion that the disclosure by the prosecutrix which

is stated by DW 2 Vanraj itself appears false and, therefore,

we discard evidence of DW 2 and PW 27 on this point. The

prosecutrix was in fact coming from Randhikpur and was

going towards Sarjumi. Baroda (Vadodara) is in a totally

different direction and there was no need for her to hide her

identity and tell that they were coming from Baroda. This lie

put in the mouth of the prosecutrix, in fact proves DW 2

Vanraj is a liar.

175 A mob of 500 persons chasing and assaulting

relatives of the prosecutrix has come in the evidence firstly in

the FIR (Exhibit 56) which can be relied only on the point that

the prosecutrix had grievance that some trauma had

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happened and she had approached the police to complain

about it. However, it is to be noted that she has deposed that

her FIR Exhibit 56 was incorrectly recorded and the person

who had recorded the complaint, was subsequently made

accused No.17 and convicted under sections 217 and 218.

Thus, Exhibit 56, in a way is a very important document

which establishes the fact that though the prosecutrix went to

police station and urged for her complaint to be recorded,

many facts were suppressed at the police station and her FIR

was manipulated. The FIR itself throws light on the falsity in

recording of the information narrated by the prosecutrix.

Thus, exhibit 56 initiated an imaginary story of 500 persons

chasing and attacking group of the prosecutrix.

Undoubtedly, this figure of 500 persons was deliberately

mentioned to show the impossibility in the story of the

prosecutrix of her being able to identify accused nos.1 to 12

from a mob of 500 people. The exaggerated figure of 500

persons was false. It was intentionally written. If a mob of

500 persons would have attacked group of 16 to 17 people

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with full of emotions of communal vengeance, the prosecutrix

would not have been spared and she would also have been

killed or terribly injured. However, it was not so. Therefore,

by mentioning mob of 500 persons, it was intended to show

that nothing happened, as per story given by the prosecutrix

so that she can be proved a liar or a lady giving all imaginary

version.

176 As per the case of the prosecutrix, she saw two

persons, i.e., DW 2 Vanrajsingh Dhingra and PW 27

Natwarbhai who were from Home Guard, however, she

treated them as police, hence, she approached them for help.

The learned Counsel Mr. Ponda submitted that though

statement of DW 2 Vanraj was recorded, he did not want to

lie before the Court, so prosecution chose not to examine

him. PW 27 Natwarbhai was substituted in the place of

Vanrajsingh and hence defence examined Vanraj. He

submitted that the evidence of the prosecutrix can be

scrutinized on the basis of the witnesses who met her first

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after the incident. The prosecutrix has stated that she met

Vanraj and told about the killing and also that she was raped

and thereafter, he took her to the police station. The

prosecutrix meeting Vanraj is not disputed by either the

prosecution or by the defence. However, as per the

deposition of Vanraj, the prosecutrix met him and told him

that she was coming with a group from Baroda and 500

people attacked them at around 12 pm on the earlier day

and, therefore, she lost the group. Therefore, she requested

him to take her to the police station and she was taken to

police station. PW 27 Natwar has also stated that when they

reached near kachha road, at that time, he along with Vanraj

got down. One woman was standing near the jeep and there

was talk between Commandant Vanraj (DW 2) and the lady.

However, he did not know what was the talk and they took

the lady in the jeep to Limkheda Police Station. In the cross-

examination, he has stated that he had talk with

Commandant Vanrajsingh, who told him that the lady was in

a group from Baroda and the group was chased by 500

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people after the riots. Mr.Ponda has submitted that this

shows that the prosecutrix did not disclose to Vanraj the fact

of killing of her relatives and of rape on her which had taken

place on the earlier day.

177 The learned Counsel Mr. Ponda argued that DW2

Vanraj was called as defence witness and the Prosecutor in

the cross-examination had contradicted him on the basis of

his statement recorded under section 161 of Cr.P.C. and the

omissions in his evidence were proved through PW 72 Mr.

Sinha in para 88 of his evidence. Mr. Ponda made

submission on law in respect of use of proviso of section 162

Cr.P.C. by the Prosecutor for contradicting DW 2 or for

bringing omissions on record in the evidence of this defence

witness. He submitted that as per the requirement of proviso

of section 162 of the Cr.P.C., the witness standing in the box

should be a witness for prosecution and if such witness states

or omits to state certain significant facts which are already

recorded or not recorded in his statement under section 161

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of Code of Criminal Procedure, then, the prosecution with

permission of the Court, may cross-examine the witness in

the manner set out under section 145 of the Evidence Act to

that extent without declaring him hostile. However, a

defence witness cannot be cross-examined and contradicted

by the Prosecutor on the basis of his statement recorded

under section 161 of the Code of Criminal Procedure. So

Mr.Ponda questioned the legality of the cross-examination

and especially the attempt of the prosecution of proving the

omissions in the evidence of DW 2 Vanraj through

Investigating Officer i.e., PW 72 Sinha.

PROVISO TO SECTION 162 OF THE CODE OF CRIMINAL

PROCEDURE:

178 We deal with the point raised by Mr. Ponda, as it

decides the scope of proviso to section 162 of the Cr.P.C.

Proviso to section 162 reads thus:

"162. Statements to police not to be signed: Use of

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statements in evidence.

1. No statement made by any person to a police officer in
the course of an investigation under this Chapter, shall,
if reduced to writing, be signed by the person making it;
nor shall any such statement or any record thereof,
whether in a police diary or otherwise, or any part of
such statement or record, be used for any purpose,
save as hereinafter provided, at any inquiry or trial in
respect of any offence under investigation at the time
when such statement was made:

Provided that when any witness is called for the
prosecution in such inquiry or trial whose statement has
been reduced into writing as aforesaid, any part of his
statement, if duly proved, may be used by the accused,
and with the permission of the Court, by the
prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act,
1872 (1 of 1872 ); and when any part of such statement
is so used, any part thereof may also be used in the re-
examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-
examination."

179 Under section 161 of the Code of Criminal

Procedure, the police have power to examine the witnesses

during the course of investigation. Under subsection (3) of

section 161, the police officer may reduce into writing any

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statement made to him in the course of examination of a

witness during investigation. However, in our criminal

system, neither the statement recorded by the police under

section 161 needs to be signed by the person making it nor

under section 162 the said statement can be used for any

purpose except as stated or allowed under the proviso of the

section. The proviso permits the use of the statement only to

contradict to bring on record significant omissions and

contradictions. This helps the prosecution to produce that

record to prove the authenticity and the truthfulness in the

investigation and so also it is helpful to the defence. So also,

it safeguards the interest of the accused if at all, he is falsely

or wrongly implicated and prosecuted in the case. The FIR

recorded under section 154 of Cr.P.C. is always signed by the

maker and the statement under section 161 is never signed

by the witness. This procedure is not arbitrary but is

meaningful if the rationale behind this procedure is

examined. The investigating machinery is presumed to be

interested in the success of the case i.e., punishing the

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accused person. Therefore, there Pis likelihood that the

investigating machinery may avail of some illegal methods

i.e., coercion, threat, pressure and procure false statement of

the witness. Corruption, political pressure and interference is

a known malignancy in the investigation and therefore, the

statements recorded under section 161 are not to be signed

by the witnesses. If a person signs a statement then, it

carries authenticity. Hence, the Legislature wanted to restrict

the scope and use of the contents of the statements recorded

under section 161 and therefore, such statements are neither

signed nor to be used in the evidence except as mentioned in

the proviso. In the absence of this bar of section 162, it was

an easy job for the police to record the statement of the

witness and along with his evidence to produce his written

statement and get it admitted in the evidence and make it a

part of the evidence and thus, the conviction of the accused

would have been smooth and more in number. The

Legislature is concerned not only with the success rate but

the law makers wanted the method used and the procedure

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followed to achieve the higher rate of conviction should be

correct, legal and not atrocious. By putting embargo of

section 162 of Code of Criminal Procedure, it has wisely

restricted the use of the same. Thus, these two sections i.e.

Section 161 and 162 encapsulate both the power of the

police and the limitations on the police. The police during the

course of investigation can record statement only under

section 161 of the Cr.P.C. When a witness stands before the

Court either as a witness for the prosecution or as a defence

witness, his status may change. However, this cannot affect

the character of the statement. His previous statement, if

recorded by the police during the course of investigation,

then, it is to be treated necessarily as a statement recorded

under section 161 of the Cr. PC. If the statement is used in

the evidence, then, the bar under section 162 comes into

play and the said statement cannot be used in the evidence

except as is allowed under the proviso. The said proviso

opens with the words "provided that when any witness is

called for the prosecution....".

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180 Thus, under the proviso, the nature of the witness

contemplated is that the witness should be for prosecution.

The proviso does not state about "any witness" but it states

'witness for prosecution'. Thus, it is specified that witness

should be called as witness for prosecution. Therefore, it is

necessarily implied that witness should not be a witness for

defence. A person may stand as a witness for defence

though he is cited as a witness for prosecution in the report

(charge sheet) filed under section 173 of Cr. P.C. The

prosecution has choice to examine or delete the witness

though his statement is recorded. It is always open for the

defence to lead evidence by calling any witness. If defence

chooses to examine a witness cited but dropped by the

prosecution, then he is a defence witness, thus, his character

as a witness changes. The prosecution witness gets

converted into defence witness. However, this conversion

does not change the nature or the character of the statement

which is recorded by the police under section 161 of the Code

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of Criminal Procedure. The statement remains as a

statement under section 161 of the Code of Criminal

Procedure, therefore, procedural bar under section 162 runs

against the use of a statement in the evidence and it can be

used only for the limited purpose. The said proviso and

provision to contradict the witnesses is not available to the

prosecution because the witness does not remain as a

witness for the prosecution but is converted into a witness of

the defence. The section by necessary implication puts bar

on use of such statement on the prosecution for the purpose

of contradiction to a witness who was earlier its own witness

but now has stepped in the box as a defence witness. In

such case omissions and contradictions brought on record in

the case of DW 2 Vanraj cannot be looked into. However, we

are of the view that his evidence does not inspire confidence,

hence, we place no reliance on it.

PERSONS           THE       PROSECUTRIX                   MET         AT       LIMKHEDA
POLICE STATION ON 4.3.2002 :

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181 The prosecutrix met DW 1 Budhsingh Mathurabhai

Patel, the writer constable in Limkheda Police Station who is

one of the scribes of FIR Exh. 56; DW 6 Chandubhai A. Tariyad

and DW 5 Jaisingbhai Hirabhai Patel, Police Constables who

were present when FIR Exh. 56 was prepared on 4.3.2002.

We have already discussed above regarding the FIR in detail,

hence, we need not discuss the evidence of these three

witnesses.

182 Mr. Ponda again submitted that the evidence of

the prosecutrix is not corroborated by the evidence of other

prosecution witnesses. As per the case of the prosecution,

after meeting Sumaliben, she met DW 2 Vanraj and PW 27

Natwarbhai, none of whom supported the case of the

prosecution. No doubt after the incident the prosecutrix first

met PW 11 Sumaliben, DW 2 Vanraj and PW 27 Natwarbhai

and their evidence does not corroborate her evidence but

there are 9 witnesses who the prosecutrix met from 4.3.2002

to 7.3.2002 who fully corroborate her testimony. The first is

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PW 7 Madina.

183 The first persons the prosecutrix met at Limkheda

Police Station were PW 7 Madina and PW 19 Phiroz. In

relation to them, the prosecutrix has stated that when she

reached Limkheda Police Station, she found Abdul Sattar

Ghachi, PW 7 Madina, PW 19 Phiroz at Limkheda Police

Station. She disclosed the facts to Limkheda Police Station

that her family members including her daughter was killed

and she was raped. She disclosed the names of the

offenders. The police told her why she was disclosing the

names of the offenders and the facts concerning rape on her

and if she was taken to the hospital for examination, she

would be given poisonous injection at the hospital.

184 PW 7 Madina has stated that on the next day of

her coming to Limkheda police station, the prosecutrix came

to Limkheda Police Station. Police told her that a girl from

Randhikpur was at the Police Station and whether she could

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identify that girl. Madina identified her as Bilkis, daughter of

Abdul Isa of Randhikpur. Madina has stated that the

prosecutrix gave her complaint at Limkheda Police Station in

her presence. The prosecutrix narrated that her family was

murdered and she was raped by Jaswantbhai Nai, Govindbhai

Nai and Nareshkumar Modhiya i.e accused Nos. 1 to 3.

Madina has further stated that at that time PW 19 Phiroz and

Sattar were with her when this narration was made by the

prosecutrix to the police. On such narration made by the

prosecutrix, the police gave abuses and asked them to go

out.

185 Thus, PW 7 Madina Patel spoke about she meeting

the prosecutrix at Limkheda police station. She supported

the prosecution. She spoke about the prosecutrix disclosing

about the murder of her relatives and also about rape on her

and others. Madina stated that the prosecutrix disclosed the

names of three persons i.e., accused Nos.1,2 and 3 as the

persons who committed rape on her.

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186 As per the evidence of the prosecutrix, she was

taken to Limkheda police station on 4.3.2002 by DW2 Vanraj.

There, she first met Madina, who was present at the police

station and as she was also a riot affected person and hailed

from Randhikpur, the police from Limkheda police station told

Madina that there was a girl from Randhikpur at the police

station and whether she could identify that girl. PW 7 Madina

was therefore confronted with the prosecutrix at the police

station and she identified the prosecutrix as daughter of

Abdul Issa Ghachi from Randhikpur. According to the

prosecutrix, thereafter her FIR was recorded by Limkheda

police station. This FIR was recorded by accused No.17

Somabhai Gori, DW 1 Budhasingh and DW 6 Tariyad.

However, her FIR was not read over to her and the

contents in the FIR were not taken down as per her narration.

Madina has also stated that the prosecutrix was threatened

by police that if she disclosed the names of the offenders and

the facts concerning rape on her then, when she was taken

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to hospital, she would be given a poisonous injection in the

hospital. So, the prosecutrix was frightened. The FIR was not

read over to her and the police forcibly obtained her thumb

impression. The prosecutrix has stated that at the time of

narrating these facts, she was not alone but she told these

facts in the presence of Abdul Sattar Ghachi, PW 19 Firoz

Ghachi and PW 7 Madina who were sitting near her. Then,

the police asked them to go away and therefore, they left.

On the point of narration of the FIR by the prosecutrix at the

Limkheda police station, the prosecution has tendered

evidence of PW 7 Madina and PW 19 Feroz.

187 On 4.3.2002, when the prosecutrix reached at

Limkheda police station, the police station was crowded with

many Muslims who were there seeking protection. The

prosecutrix was confronted with Madina for identification and

Madina stated in her evidence that she knew the prosecutrix

as the daughter of Abdul Ghachi. Both Madina and Feroz

were the victims of the riots and so their coming together at

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the police station and supporting each other was natural.

Madina also was separated from her family members. PW 7

Madina has stated that when the prosecutrix narrated the

incident to Limkheda police station, she told that her family

members were murdered and she was raped by Jaswant Nai,

Govind Nai and Naresh Modhiya i.e., accused Nos.1 to 3

respectively. She mentioned that Feroz and Abdul Sattar

were with her at the time of narration and at that time, the

police drove them away so they left the place. Thereafter,

she did not know what happened. She claimed that when the

prosecutrix was sent for medical examination, she along with

one lady constable accompanied her to Limkheda hospital.

She also mentioned that one Abdul Sattar, was taken in the

evening by the police to the place where the bodies were

lying. He was taken to the spot of offence for the purpose of

identification of the dead bodies and when he returned, he

was crying and said they met a bad end.

188 The learned Counsel Mr. Ponda submitted that on

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4.3.2002, the prosecutrix was taken by DW 2 Vanraj to

Limkheda Police Station where she met PW 7 Madina and PW

19 Firoz. He pointed out omission in the evidence of Madina

that she did not state at the time of recording of her

statement by CBI that she was called by Limkheda police

station and she was asked to identify the prosecutrix. The

learned Counsel submitted that there was no reason for

Madina to go to the prosecutrix and be there at the time of

recording of the statement when there were many refugees

from different villages waiting at Limkheda police station.

First of all Madina was not from any village but she was from

Randhikpur i.e. the same village as the prosecutrix, hence,

when the prosecutrix came to the police station, Madina

would try to go near her to find out the facts. Secondly, the

police station was crowded, hence, the chances of people

including Madina being in hearing distance were very high,

hence, there was every possibility for Madina to hear what

the prosecutrix stated.

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189 PW 19 Phiroz was the son of Abdul Sattar. Phiroz

has stated that he is a resident of Randhikpur. There was

stone throwing at his residence. Thereupon, he fled to the

jungle along with his family members to save themselves due

to Godhra riots. They stayed in the jungle. After two days,

they saw a police vehicle and they were taken to the police

station at Limkheda. There, he met Madina. Two days

thereafter, one person brought the prosecutrix to the Police

Station around 10.00 to 10.30 a.m. It was the fourth day of

the month. He noticed injuries on the hand of the

prosecutrix. Her hair was loose. The prosecutrix stated that

while she was at the place near Kachcha road leading to

Pannivel, two white vehicles came to the spot. Mob of

persons alighted from those vehicles and attacked her and

her relations. She further stated that she was raped by

Jaswantbhai Nai, Govindbhai Nai and Nareshkumar Modhiya

i.e accused Nos. 1 to 3. She also told the police that one

Shailesh Bhatt (accused No. 4) snatched her daughter from

her and killed her by smashing on stone. The police

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thereafter threatened the prosecutrix that if she gives the

names of the rapists, she would be finished by giving

poisonous injection. He and Madina were then asked to go

away.

190 Mr. Ponda argued that the evidence of PW 19

Feroz Ghachi is not reliable on the point of being present at

the time of recording of the FIR Exh. 56 of the prosecutrix at

Limkheda police station. He submitted that PW 19 is an

interested witness as the prosecutrix was related to him

through her grandfather. He submitted that the statement of

this witness was recorded by CBI two years after the incident

and there is a material omission that he heard the prosecutrix

narrating the incident had taken place at Kaccha road.

Thereafter, it is stated that there is an omission in respect of

narration of the prosecutrix that the persons alighted from

the vehicle and attacked her relatives. Mr. Ponda further

submitted that social workers, namely, Farha Naqvi, Huma

Khan and Sugra, were present at the Camp and they tutored

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these witnesses including the prosecutrix. As far as

omissions in the evidence of Feroz are concerned, they are all

inconsequential in nature and do not change the basic

substratum of the case of the prosecutrix.

191 It was vehemently argued by Mr. Ponda that there

was a delay in recording the statements of these witnesses

i.e. PW 7 Madina and PW 19 Feroz and therefore, these

witnesses are tutored by social workers. We do not consider

that there is a delay in recording of the statements of these

witnesses, on the background of callous investigation

conducted by the Limkheda police station and Gujarat CID.

This is a case where the police wanted to help the accused

by suppressing their names. The police were not passive

towards investigation but they were very active in destroying

the case of the prosecutrix. Therefore, at no point of time

there was any chance of recording the statements of these

two witnesses. Thus only after the CBI took over the

investigation in January, 2004 that after collecting the

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information from the prosecutrix and other sources, they

could reach to these witnesses and their statements were

recorded.

192 Mr. Venegavkar submitted that there are no

material omissions in the evidence of PW 7 Madina, PW 19

Firoz and only suggestions are given to these witnesses which

were denied by the witnesses. This position is true. It is

noticed that there was a specific reason for both Madina and

Phiroz to be present at the Limkheda police station. Both

were from Randhikpur and were victims of riot and therefore

they were together. The evidence of these two witnesses i.e

Madina and Feroz is not demolished in the cross-examination,

hence, we find it safe to rely on their testimony and we are of

the opinion that their evidence fully corroborates the

evidence of the prosecutrix.

GROUP 4: GROUP OF PERSONS BILKIS MET FROM 5TH
MARCH, 2002 TO 7TH MARCH, 2002:

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5.3.2002: This group includes DW 7 Ushaben Kishori,

who was a police constable attached to Limkheda police

station and who took the prosecutrix to community

health centre, Limkheda on 5.3.2002 where the

prosecutrix was examined by PW 9 Dr. Rakeshkumar

Mahto. PW 9 Dr. Rakeshkumar Mahto and DW 7

Ushaben Kishori were the witnesses the prosecutrix met

in the morning of 5.3.2002. We shall deal with the

evidence of Dr. Mahto a little later. Later on, on

5.3.2002, the prosecutrix also met PW 3 Sugraben, aunt

of the prosecutrix and PW 5 Sharifa Abdul Razzak

Umarjee, social worker whom she met at the Godhra

Relief Camp.

6.3.2002: On 6.3.2002 PW 18 Jayanti Ravi, District

Magistrate and Collector, Godhra and PW 23 Govindbhai

Patel, the Executive Magistrate visited Godhra Relief

Camp. The prosecutrix narrated the incident to PW 18

Jayanti Ravi. PW 18 Jayanti Ravi directed PW 23 to

record the statement of the prosecutrix. Accordingly,

he recorded statement (Exh. 277) of the prosecutrix.

7.3.2002: PW 17 Dr.Rohini Katti and DW 3 Dr.Geeta

Pisagar examined the prosecutrix on 7.3.2002 at

Godhra Civil Hospital. On that day PW 42 Mr.Shivaji

Pawar, PSI attached to the Godhra town police station

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recorded the statement of the prosecutrix on 7.3.2002

at Civil hospital, Godhra. Except for recording this

statement he has played no further role. We will deal

with the evidence of PW 17, DW 3 and PW 9 together

when we deal with the medical evidence.

193 In relation to the persons the prosecutrix met on

5.3.2002, Mr. Ponda submitted that if story of the prosecutrix

was true, she would have definitely told about it to Police

Constable DW 7 Ushaben. DW 7 Ushaben went along with

the prosecutrix on 5.3.2002 to Community Health Centre

from Limkheda Police Station. Ushaben admits it, however,

she does not say that the prosecutrix told her that she was

raped, who raped her and her relatives were killed. It is to be

noted that Ushaben was also attached to Limkheda police

station, hence, she would certainly not support the

prosecutrix.

194 Mr. Venegavkar has submitted that on 5.3.2002,

the prosecutrix was taken to Dr. Mahato (PW 9) at CHC

Limkheda in the morning. She was accompanied by PW 7

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Madina and DW 7 Ushaben. On the same day, she was

shifted to Godhra Refugee Camp and there, she met PW 3

Sugra and PW 5 Sharifa. He submitted that the evidence of

the prosecutrix that she was taken to CHC Limkheda is

corroborated by the evidence of these 3 witnesses i.e.

Madina, Ushaben and Dr. Mahto. The fact of the prosecutrix

going to Godhra Relief Camp on 5.3.2002 is corroborated by

PW 5 Sharifa who says that she met the prosecutrix in the

relief camp on 5.3.2002.

195 Mr. Ponda has argued that there is a confusion in

the evidence of Madina and the prosecutrix as to on which

date she was taken to CHC Limkheda and when she was

examined by PW 9 Dr.Mahto. He argued that the record of

the hospital is manipulated by CBI and the evidence of PW 9

Mahto in fact does not help the prosecution to prove its case

of rape and assault. There is no question of manipulating

the record of CHC Limkheda because the record is not in

favour of the prosecution. If the CBI wanted to manipulate

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this record there was ample opportunity to do so but it was

not done.

196 About PW 3 Sugra, the prosecutrix has stated that

at the Relief Camp, she met her aunt Sugra (PW 3). Sugra

asked her why she was sitting alone and not talking with

them. The prosecutrix then disclosed all the facts to her. She

also disclosed to Sugra the names of the offenders. The

prosecutrix also met Latifaben and Sharifa (PW 5) at the

camp and she disclosed the facts to them.

197 PW 3 Sugra was a resident of Randhikpur and aunt

of the prosecutrix. She also left Randhikpur on the next day

of train burning incident. She has stated that she met the

prosecutrix at Godhra Refugee Camp and there the

prosecutrix disclosed to her that accused Nos.1 to 3 i.e.,

Jaswant Nai, Govindbhai Nai and Naresh Modhiya raped her

and one Shailesh Bhatt, accused No.4, killed her daughter by

smashing her on the ground and other 7 to 8 persons from

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Randhikpur had killed her relatives. At that time, the

prosecutrix handed over her clothes which were on her

person to PW 3 Sugra and the prosecutrix wore clothes given

to her at the camp. The prosecutrix also told that the clothes

were given to her by an adivasi lady. Sugra kept those

clothes with her in anticipation that the adivasi woman who

had given those clothes to the prosecutrix may come and the

clothes would be handed over to the said lady. The clothes

remained with Sugra and when the CBI asked her she handed

over those clothes which were collected under memorandum

exhibit 72 dated 20.1.2004 drawn by PW 72 the

Investigating Officer Dy. SP, CBI Mr.Sinha. Subsequently,

they were sent to C.A. It may be stated that no incriminating

material was found on these clothes.

198 Sugra was put number of questions in the cross-

examination in respect of the villagers who were residents of

Randhikpur. Questions were also put to her about the

accused and she answered that she knew most of the

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accused prior to the incident. They are all from Randhikpur.

She was elected member of Gram Panchayat and worked as

such for 5 years. In her evidence, it has come on record that

she also stated that the population of Randhikpur was 1000

to 1500 out of which 100 to 150 houses were of muslims at

the time of Godhra riots. She has mentioned that she left

with her family members including Haleema, Munni, Mumtaz

and the prosecutrix together. However, she stayed back at

Chundadi for two days. There is no confusion about these

names because though many persons left together, later at

different points of time, the group separated and the group

which was moving with the prosecutrix till Panivel was a

group of 16 to 17 persons and nothing much is brought on

record which damages the evidence of Sugra. It appears

that a large number of muslims left Randhikpur. They

stopped at Chundadi where some stayed back and others

broke up into different groups and proceeded in different

directions.

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199 PW 5 Sharifa was working as a social worker in

Godhra Relief Camp. She has stated that she met the

prosecutrix on 5.3.2002 in the camp. When Sharifa first met

the prosecutrix, the prosecutrix was crying. Sharifa asked her

why she was crying. At that time, the prosecutrix told her

that accused Jaswant Nai, Govind Nai and Naresh Modhiya,

i.e. accused Nos.1, 2 and 3 raped her and wrong was done

with her mother and sisters and accused no.4 Shailesh Bhatt

killed her daughter. The prosecutrix also told her that after

the incident, she had been to Limkheda police station and she

had lodged her complaint at Limkheda police station,

however, her complaint was not read over to her but they

obtained her thumb impression on the complaint. She also

told that the police at Limkheda had threatened her that if

she disclosed the names, she would be finished by giving

poisonous injection. Mr.Ponda has submitted that the

statement of this witness was recorded only by CBI. This

woman, who was a social worker did not come forward to

give her statement to Limkheda police station or the Gujarat

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CID, hence, her evidence is suspect.

200 Admittedly, Shareefa was a social worker and has

stated that there were 2500 to 3000 persons staying at

Godhra Refugee Camp at that time. She has deposed that

she met the prosecutrix and the prosecutrix disclosed the fact

of rape, assault on her and murder of her daughter Saleha by

the accused Nos.1 to 4 attributing them specific roles. In

the cross-examination, some immaterial omissions in respect

of her residence as to whether it was Dahod or Godhra and

about the name of her husband were brought. She was put

questions about many persons including other social workers

Farha Naqvi, Huma Khan, Sugra, Farooq, Mukhtiyar, etc.

However, the witness remained consistent that the

prosecutrix did give the names of the rapists and killer of her

daughter to her and also before the Collector PW 18 Jayanti

Ravi on 6.3.2002. Thus, we find that her evidence

corroborates evidence of the prosecutrix.

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201 Mr. Ponda also pointed out that there was a

seizure panchanama of the clothes of the prosecutrix, i.e.,

petticoat, odni and blouse which she wore immediately after

the incident. This is marked as Articles 5A, 6A and 7A

respectively. Panchanama of seizure of clothes was drawn by

CBI in January, 2004. As per the evidence of the prosecutrix,

she handed over her clothes to one Sugra in March 2002 at

Godhra Relief Camp, so it is surprising that Sugra preserved

her clothes for 2 years, i.e., till January 2004, hence, it is

obviously a planted evidence. Mr. Ponda has submitted

that the statement of Sugra that she received clothes from

the prosecutrix at the Godhra Refugee Camp i.e., one green

colour lehenga/ghagra (article 5A), blouse (article 7A) and

cream colour dupatta (article 6A) is a cooked up story and so

also Sugra's evidence that she preserved the clothes for two

years is also bogus. He submitted that Sugra did not know

the adivasi lady and why the prosecutrix handed over those

clothes to Sugra and why did Sugra preserve these clothes

with her, appears to be absurd, hence, these clothes must

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have been planted. As as far as this contention is concerned,

it is not the case of the prosecution that any semen or blood

stains etc. were found on these clothes. Hence, no purpose

would have been served by planting these articles. Moreover,

Sugra has given an explanation for keeping the clothes with

her i.e. she thought that the owner of the clothes would come

to take them. Thus, as far as this contention is concerned, we

may state that nothing could have been achieved by the

prosecution by planting these clothes. The clothes were

washed by Sugra and it is not anybody's case that any stains

or anything incriminating was present on those clothes. Thus,

we find no merit in the submission of Mr. Ponda that the

clothes were planted.

P

202 Mr. Ponda pointed out that in the evidence of PW 3

Sugra and PW 5 Sharifa both the ladies have deposed

assertively that they met the prosecutrix on 5th March, 2002,

however, their evidence is falsified by a document, i.e., the

relevant pages dated 5th March, 2002 of the register of

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refugees of Godhra Relief / Refugee Camp. In the said

register, the names of the persons who had come to stay in

the camp are mentioned and though the names of many

persons from Randhikpur are mentioned in the record of this

refugee camp dated 5.3.2002, the name of the prosecutrix is

not seen and therefore, Mr. Ponda submitted that this fact

creates doubt as to where the prosecutrix was on the evening

and night of 5th March, 2002. He submitted that it is the

case of the defence that she was taken somewhere where

she was tutored and accordingly she has falsely implicated

the accused persons on 6th and 7th March, 2002. Mr. Ponda

further submitted that there is no consistency in the

statement of Sugra and Sharifa about who were the

assailants and there is also variance in the evidence of the

prosecutrix.

203 Mr. Ponda further pointed out that a list of

refugees at Godhra Relief Camp was maintained for the

purpose of supply of ration (Exhibit 440). He relied on the list

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dated 5.3.2002 which is annexure to letter dated 13.2.2002

which is at Exh. 440 colly. However, he pointed out that the

name of the prosecutrix is not appearing in the list dated

5.3.2002. Thus, according to Mr. Ponda, the prosecutrix in

fact did not go to Godhra Relief Camp on 5.3.2002 but she

was surrounded by social workers on 5.3.2002 and was

tutored on that evening and night and thereafter she went to

Godhra Relief Camp on 6.3.2002.

204 The contention of Mr. Ponda that because the

name of the prosecutrix was not there in the register of

Godhra Relief Camp dated 5.3.2002, hence, the prosecutrix

was not in the camp on 5.3.2002, cannot be accepted. First

of all such registers are not prepared at midnight. The

register must have been prepared sometime in the day by

which time the prosecutrix may not have reached the camp.

We also find no merit in the contention that on 5.3.2002 the

prosecutrix was taken somewhere from the police station and

tutored. The prosecutrix was brought to Limkheda police

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station on 4.3.2002. She stayed that night at the police

station which is clear from the evidence of PW 35

Ranjeetsingh Patel. Many Muslims had sought shelter in the

police station because the situation outside was fraught with

danger. Almost all the relations of the prosecutrix had been

killed, in such case, she would not dare to leave the safety of

the police station and go outside with some unrelated

persons. Thus, we find no merit in the contention that on

5.3.2002, she was taken somewhere from the police station

and she was tutored to falsely implicate accused nos. 1 to 12.

CORROBORATION BY 9 WITNESSES TO THE EVIDENCE OF
THE PROSECUTRIX REGARDING ASSAULT AND RAPE:-

205 As far as the actual incident is concerned, the

evidence of the prosecutrix is corroborated by PW 3 Sugra,

PW 5 Sharifa, PW 7 Madina, PW 18 Jayanti Ravi, PW 19 Firoz

and PW 23 Govindbhai Patel.

206 In relation to the witnesses the prosecutrix met on

6.3.2002, the prosecutrix has stated that one District

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Magistrate and Collector Ms. Jayanti Ravi (PW 18) visited the

relief camp on 6.3.2002. She narrated the facts to PW 18

Jayanti Ravi. Another person PW 23 Govindbhai Patel who

accompanied PW 18 made record (Exh. 277) of the narration

of the prosecutrix. The said record was read over to the

prosecutrix. It was a faithful record of her narration. In this

connection, PW 18 Ms. Jayanti Ravi has stated that she was

District Magistrate and Collector, Godhra, Gujarat. Situation

in the district was tense due to riots and arson following the

burning of Sabarmati Express in February 2002. Relief camps

were set up at various places including Godhra. As the

District Magistrate, she visited the relief camps. On 6.3.2002,

she visited Godhra Relief Camp. She came across several

complaints in the camp. One distinct complaint was that of

the prosecutrix. On her interaction with the prosecutrix,

Jayanti Ravi learnt from her that she and her relatives while

escaping from violence were attacked by a mob and she was

raped and her family members were killed. She mentioned

the names of the offenders whom she identified. The

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prosecutrix further disclosed that the FIR given by her was

not lodged as per her narration. She expressed that she be

given an opportunity to lodge her complaint. PW 18 Jayanti

Ravi then directed the Executive Magistrate PW 23

Govindbhai Patel to record the narration of the prosecutrix.

On going through the statement (Exh. 277) of the prosecutrix,

she realized the gravity and ordered medical examination of

the prosecutrix by Civil Surgeon, Godhra.

207 PW 23 Govindbhai Patel has stated that he was

Mamlatdar and Executive Magistrate at Godhra at the

relevant time. PW 18 Ms. Jayanti Ravi was the District

Magistrate and Collector of Godhra. On 6.3.2002, he

accompanied PW 18 Jayanti Ravi to Godhra Relief Camp. PW

18 Jayanti Ravi made inquiries with the inmates of the camp.

Two ladies approached PW 18 Jayanti Ravi with a grievance of

rape on the prosecutrix and killing of her relations. Jayanti

Ravi then instructed him to record the statement of the

prosecutrix. Thereupon, he recorded the statement (Exh.

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277) of the prosecutrix. He obtained thumb impression of the

prosecutrix on the statement. Govindbhai attested the

thumb impression of the prosecutrix with his counter

signature. He handed over this statement to PW 18 Jayanti

Ravi. Not only the evidence of PW 18 Jayanti Ravi and PW 23

Govindbhai Patel corroborate the case of the prosecutrix but

the statement (Exh. 277) of the prosecutrix also corroborates

the case of the prosecutrix. We have already dealt with

Exh. 277 in detail, hence, we need not discuss it any further.

208 On 7.3.2002, the prosecutrix met PW 17 Dr. Rohini

Katti and DW 3 Dr. Geeta Pisagar, who examined her. We

shall deal with their evidence the evidence of PW 9 Dr.

Mahto a little later, while dealing with the medical evidence.

209 Some other witnesses who corroborate the

prosecutrix are PW 12, 16 and 54. We will deal with the

evidence of PW 12 Madhusudan Prajapati along with the

evidence of PW 54 Prafulchandra Sevak as they are

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connected. PW 12 Madhusudan has stated that a panchnama

concerning white colour marshal jeep bearing registration No.

GJ-20-A-3123 was made in their presence. The vehicle was

seized. He has identified the photographs Exh. 58/1 to 58/4

as those of the vehicle. Madhusudan has stated that the

prosecutrix was present at the time of seizure of the said

vehicle. The photographs of the vehicle were taken in their

presence.

210 PW 54 Prafulchandra has stated that the vehicle in

question was transferred in the name of Ramilaben

Rameshchandra Chandana on 18.9.2001. While giving his

evidence, he relied on the Motor Vehicle Register (Article 50)

having pages consecutively numbered. It may be stated that

Ramilaben is admittedly the wife of accused No. 12

Rameshchandra Chandana.

211 As far as the vehicle is concerned, the prosecutrix

has stated that the vehicle involved in the crime was shown

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to her. It was the vehicle which was used by the offenders for

arriving at the scene of offence. She has identified it before

CBI. She has further stated that she was shown jeep Article 2

and she has identified it as the same jeep which was used by

the offenders on the date of the incident.

212 The prosecutrix has stated that the incident took

place on the kachcha road leading to Pannivel. This is

corroborated by the evidence of PW 16 Balwantsingh Rajput.

PW 16 Balwantsingh Rajput has stated that PW 1 prosecutrix

led them to one place. They went to the place by vehicle.

They halted the vehicle at the confluence of pakka road and

kachcha road. The kachcha road led to village Pannivel.

DISCREPANCIES IN NUMBER OF ACCUSED, WEAPON AND
SLOGANS:

213 Mr. Ponda has submitted that the prosecution

could not tender reliable evidence on the point of how many

assailants were in the mob? what weapons they were

carrying? what slogans the mob was shouting? which vehicle

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they came in? He referred to examination-in-chief of the

prosecutrix in paragraph 6 where she has stated that 25 to

30 persons had come in a white vehicle, however, this white

colour vehicle is an omission which she has admitted in

paragraph 112 of her evidence. She has stated that they

were carrying swords, sickles and sticks and were shouting

that "Aa Raye Musalmano. Emne Maro, Kapo" and its

translation verbatim is that "See these are Muslims, kill, cut

them". He argued that in FIR Exhibit 56, the prosecutrix has

stated that there was mob of 500 people and to that effect

question was put to her, and in fax Exhibit 57 she has stated

40 persons. These are the omissions and contradictions in

relation to number of people in the mob. On the point of

weapons Mr. Ponda argued that she has stated in paragraphs

6 and 7 in chief that assailants were holding sticks, swords

and sickle, however, she has admitted in paragraph 113 that

the said fact is not mentioned in FIR Exhibit 56. He argued

that it was not mentioned in the Fax Exh. 57 and also in the

statement dated 7th March, 2002 recorded by PW 42 Mr.

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Pawar. He further pointed out that in Exhibit 57 i.e. fax she

has mentioned weapons as spear, dagger, bow and arrow.

He argued that the contradictions are also in respect of

slogans shouted by mob who allegedly attacked the

prosecutrix and her relatives. In paragraph 6 she has stated

that they were saying "Aa Raye Musalmano, Emne Maro,

kapo", however, in paragraph 117 it is brought on record that

such slogans are not mentioned in FIR Exhibit 56 but it is

stated that "Tamaro Musalman manus ne maro hindu manus

ne mari nakel che". She for the first time took the names of

accused nos. 1 to 12 in her statement Exh. 277 recorded on

6th March, 2002 by PW 23 Govindbhai Patel and no names

were given in FIR Exh. 56. He argued that the question how

Saleha was killed has remained mute though the prosecutrix

in paragraph 7 of her examination-in-chief has stated that

accused No. 4 Shailesh has snatched Saleha from her and

smashed her. However, she is completely silent about this

fact in her FIR, in the fax or further statements recorded on

6th March, 2002 (Exh. 277) by PW 23 Govindbhai Patel and so

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also on 7th March, 2002 which is recorded by PW 42 Pawar so

also in the statement recorded on 13th March, 2002 by Circle

Inspector Limkheda i.e accused No. 16 Ramsingh Bhabhor.

214 As far as statement (Exh. 277) recorded by PW 23

is concerned, the prosecutrix mentions about killing of her

relatives, hence, her daughter Saleha is covered in that

category. No doubt, there is non-disclosure of killing of

daughter in her two statements, i.e., FIR dated 4 th March,

2002 and the statements recorded on 7th and 13th March,

2002 by PW 42 and accused no. 16 respectively. As far as

FIR is concerned, we have already observed that the police

have on purpose not recorded it correctly. As far as fax Exh.

57 is concerned, we have already held that it was not sent by

the prosecutrix. As far as, statement dated 7th and 13th

March 2002 of the prosecutrix are concerned, these cannot

be scrutinized properly unless we advert to the most

important aspect in this case, i.e., the investigation. The

investigation has started at Limkheda Police Station on 4 th

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March, 2002 with recording of FIR Exh. 56. The investigation

remained with Limkheda Police and thereafter with Gujarat

CID. However, there was negative progress in the

investigation as 'A' Summary was filed before the Court of

Magistrate by Limkheda, Gujarat Police. The members of

National Human Rights Commission had interacted with the

prosecutrix and thereafter Writ Petition No. 118 of 2003

which is marked as Exhibit 61 was filed in the Supreme Court

by her. The relevant FIR and her statements recorded by

Limkheda, Gujarat Police were annexed to the said Writ

Petition Exh 61. She prayed before the Supreme Court that

the investigation of her case be transferred from Gujarat

police to Central Bureau of Investigation. The Writ Petition

was allowed and her prayer was granted by the Supreme

Court in December, 2003. Pursuant to this, the investigation

was taken over by CBI on 1st January, 2004. Thus, it shows

that she had to fight for nearly one year and 10 months to

get her case transferred from Gujarat Police to CBI and

investigated by CBI. On account of the tainted and biased

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investigation, there are bound to be discrepancies in the

evidence of the prosecutrix. However, once the CBI took over

the investigation and recorded the statements of the

prosecutrix, it is noticed that there are no significant

omissions or contradictions.

215 Mr. Venegavkar has submitted that the evidence

of the prosecutrix is corroborated by the evidence of 9

witnesses i.e., PW 3 Sugra, PW 5 Sharifa, PW 7 Madina, PW 8

Saddam, PW 12 Madhusudan Prajapati, PW 18 Jayanti Ravi,

PW 19 Firoz, PW 23 Govindbhai Patel and PW 54

Prafulchandra V. Sevak. He has read over the evidence of the

prosecutrix. He argued that the prosecutrix has narrated the

incident of assault and rape attributing specific roles to

accused Nos.1, 2 and 3, who raped her and accused No.4,

who snatched her daughter Saleha and smashed her on the

ground. This is how Saleeha was killed.

216 Mr. Venegavkar argued that the prosecutrix has

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stated that the persons, who arrived there in two vehicles

were from Randhikpur and they were holding weapons like

swords, sticks and sickle and they assaulted her relatives who

started running helter skelter. Accused no.4 snatched her

daughter Saleeha and smashed her on the ground. They

tore clothes of the women and raped them. She was raped

by accused nos. 1 to 3. She mentioned that at the time of

attack, these persons were shouting slogans against Muslims.

She became unconscious because of the sexual assault on

her. When she became conscious she climbed up the hill and

hid herself between some boulders. She came down the next

day. He read the relevant paragraphs in the evidence of

these witnesses along with the cross-examination and

submitted that the omissions and contradictions which the

defence tried to bring on record, they are insignificant. He

submitted that in fact, all these witnesses have corroborated

the prosecutrix. On going through their evidence, we find

much merit in this submission.

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NO COMPLAINT THOUGH FOUR CHANCES

217 Mr. Ponda submitted that there is group of 9

witnesses who were examined by the prosecution on the

incident of 28th February, 2002 at Randhikpur. He gave list of

the witnesses that is PW 2 Pinjara, PW 4 Salim Ghachi, PW 19

Feroz Ghachi, PW 25 Siraj Ghachi, PW 26 Imitiaz Ghachi, PW

31 Rasul Aziz Umer, PW 45 Sayad Abdul Salam, PW 46 Salim

Abdul Sattar Musa Ghanchi, PW 47 Sattar Majid Ghanchi.

These 9 witnesses were residents of Randhikpur.

218 The learned counsel Mr. Ponda has argued that 7

witnesses i.e. PW 19, 25, 26, 31, 45, 46 47 were related to

each other, however, none of them lodged any complaint

against the acts of accused persons or the rioting. He

submitted that they had four good chances to lodge the

complaint. Firstly, after leaving RanPdhikpur when they all

went to Limkheda Police Station to seek shelter, none of them

gave complaint. They all have admitted that they did not

lodge complaint except PW 26 Imitiaz Ghachi and PW 31

Rasul Ghachi. These 2 witnesses though have stated that

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they lodged the complaint, they did not produce a copy of the

said complaint lodged by them with the police station though

in the cross-examination, opportunity was given to them.

Secondly, when they all were taken to Godhra Refugee Camp,

many police officers revenue officers, like PW 18 Jayanti

Ravi visited Godhra camp and they enquired about the

refugees. None of them came forward to register any

complaint against the accused. Thirdly he pointed out that in

the evidence of PW 2 Pinjara the defence has brought

admissions on record that Limkheda police station and the

Limkheda Court were situated very close to each other hence,

if police were reluctant to lodge FIR, they could have lodged

private complaints. Fourthly, all these refugees including the

group of 9 witnesses were given residence at Rahimatbaug.

They were all occupying tenements in the same area and

stayed there nearly 1½ to 2 years. The admissions are

brought out in the cross-examination from these witnesses

that they used to meet and discuss about the riot. Thus,

lodging of complaint was expected from these witnesses.

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219 The submissions and the points raised by learned

counsel Mr. Ponda about non-lodging of the complaint by the

witnesses about the riot and the case of the prosecutrix is

answered by these witnesses in their respective evidence

itself. These 7 witnesses undoubtedly are the victims of riot.

They all are residents of Randhikpur but lost their houses in

the riot. Their houses were burnt or destroyed by the violent

mob in Randhikpur. Out of fear, they left Randhikpur and did

not go back to their village. Thus, they left not only their

houses but also their occupations and parted from their

family members. The witnesses like PW 2, PW 4, PW 26 and

PW 31 have stated that the police were not in a mood to

record any complaint of the muslims. PW 31 Rasul Umer has

stated that "I discussed the issue of reluctance of revenue

and police to record the complaint of the inmates of the

camp". Thus, when these witnesses found police non-

cooperative or hostile, then naturally they were discouraged

to lodge any complaint at any place where they were staying.

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By lodging complaint against the hindus who were in majority

or the assailants who are also Hindus, might have led to a

situation more dangerous and traumatic and the complainant

could have invited further trouble.

WHO LEFT RANDHIKPUR WITH THE PROSECUTRIX:

220 Mr. Ponda, the learned Counsel thereafter raised

objections that there is a lot of confusion in respect of

persons, who left Randhikpur with the prosecutrix on

28.2.2002. She has taken names of one Iqbal, her brother, so

also, there is confusion about Mumtaz, whether she was

really with the group or not. The prosecutrix has taken the

name of her father Abdul Issa Ghachi, who also left with her.

She has taken the name of Majidbhai Patel, who was in the

group. However, her evidence is not clear on the point who

accompanied her.

221 The learned Counsel Mr. Venegavkar while

answering this point has submitted that who left with the

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prosecutrix on 28.2.2002 and who moved alongwith the

prosecutrix on 28.2.2002 and thereafter till 3.3.2002 are two

different issues. He submitted that the persons, who were

subjected to assault and were killed were the persons, who

had moved with her. She has taken the names of the persons

specifically who moved with her. She has mentioned the

names of Saddam so also Mumtaz, though she has stated

that her father PW 24 Abdul also left Randhikpur with them.

After going through the evidence of PW 24, it is found that

though he left Randhikpur with the prosecutrix, he returned

back and he did not move alongwith the prosecutrix on the

same day. He stayed back to look after his cattle.

222 The prosecutrix in para 40 of her evidence has

specifically mentioned about the persons who left Randhikpur

and moved from one place to another. She has stated as

follows:

               "myself,           my    daughter            Saleha,         my       mother
Haleemaben, Sisters Mumtaz and Munni,

brothers Aslam and Irfan, uncles Majidbhai and
Yusuf Musa Patel, aunt Sugraben, cousins

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Shamimben, Mumtazben, Hussain, cousin
Shamim, aunt Ameena, Saddam son of Ameena
had left our residence at village Randhikpur and
moved from the places as aforesaid".

223 In para 3 of her evidence, the prosecutrix has

stated that her maternal aunt Bibi came to her and she

advised them to leave the residence immediately in view of

the violent developments in the village. Therefore, all of them

left the residence. This shows that all the members of her

family had left home and some of the members in her group

formed one group, who proceeded in one direction. In her

examination in chief, she did not mention the name of her

father PW 24 as being part of her group. PW 24 Abdul

Ghachi, her father, also corroborates her as he has said that

his daughter (the prosecutrix) alongwith his wife and children

left the house in the morning, however, he remained in the

village to look after his cattle and arrange belongings. Then

on the same day, he left Randhikpur at 1.15 pm. Therefore,

in the cross-examination, though the defence has brought on

record that in FIR Exh 56, she has taken the name of her

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father Abdul, who left alongwith her, we are of the opinion

that the said evidence cannot be read in isolation or only in

the light of some omission that his name was included by the

prosecutrix in her FIR or other statements. PW 24 Abdul may

have initially left with the prosecutrix, however, immediately,

thereafter, he returned back. No doubt in FIR Exh. 56, the

name of Saddam is not mentioned. However, as we

discussed earlier, Exh.56 is a disputed document in respect of

some portion of the contents, so is Fax Exh. 57.

224 As far as the prosecutrix, PW 3 Sugra and PW 24

Abdul giving different names of the persons who left

Randhikpur is concerned, it is seen that on account of Hindus

burning and looting the houses of Muslims, there was mass

exodus of Muslims from Randhikpur. Some of these persons

converged at Chundadi. Thereafter, these persons appear to

have formed different groups and they went onwards in

different directions. PW 3 Sugra did not accompany the

group of the prosecutrix after Chundadi and she stayed back

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at Chundadi. It appears that each witness has stated the

names of the persons who were close to them and other

persons in the group are not mentioned. In any event, it

appears that many groups left for Chundadi. Thereafter, they

formed smaller groups or some joined other groups and then

these groups proceeded in different directions. Looking to

the mass exodus of persons from Randhikpur, much

importance cannot be given to the fact that initially the group

consisted of different persons and thereafter, the group

consisted of different persons.

TIME WHEN BILKIS LEFT RANDHIKPUR :-

225 Learned counsel Mr. Ponda argued that there is

serious discrepancy about the time Bilkis left Randhikpur,

hence, her evidence cannot be believed. He relied on

paragraphs 3, 71 and 83 of her evidence and submitted that

whether prosecutrix and the group left in the afternoon or in

the evening. In paragraph 71, she stated that we did not

leave in the evening. In paragraph 83, she has stated that it

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is not true that we left Randhikpur at 10.00 a.m. In our

opinion at what exact time, she left Randhikpur is not at all

material. The fact remains she left Randhikpur on 28.2.2002.

About the incident taking place on 3.3.2002, there is no

discrepancy.

WHEN THEY WERE SAFE AT CHUNDHADI, WHY THEY LEFT :-

226 Mr. Ponda thereafter argued that the evidence of

the prosecutrix shows that many Muslims had gathered at

Chundadi. He submitted that when many Muslims had

gathered at the residence of Kadakiyabhai or Bijalbhai, they

would be safe there, then why Bilkis and her family members

left Chundhadi? This conduct was not natural. This question

can be answered. The house of Kadakiyabhai, being

Sarpanch of Randhikpur was itself in Randhikpur and

Bijalbhai's house was in Chundhadi which is also close to

Randhikpur. At that time, the fear of death was in the minds

of the prosecutrix and her relatives and in fact in the minds of

all the Muslims from Randhikpur. They were hearing news of

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riots, looting and killing of Muslims by Hindus and therefore,

these people wanted to run far away from the village where

Muslims were being attacked and their houses were being

looted and were being set on fire.

THE PROSECUTRIX DID NOT TELL HER FATHER SHE WAS
RAPED:

227 Mr. Ponda argued that the evidence of the

prosecutrix is further falsified by the evidence of her father

PW 24 Abdul Ghachi. He pointed out that in paragraph 6 of

evidence of PW 24 Abdul Ghachi, he has stated about his

daughter (prosecutrix) telling him only about rape on other

women and killing of daughter Saleha by accused no. 4

Shailesh Bhatt, however, she did not tell him about rape on

her and also killing of her relatives. In view of this fact, he

argued that the story of the prosecutrix is imaginary and, as

there is lot of variance it is hence, unworthy of credit. He

further submitted that the story of the prosecutrix that she

had been raped cannot be believed because if any such

incident had occurred, she would have definitely told about

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the same to her father. However, her father PW 24 Abdul

makes no reference to the prosecutrix making any such

disclosure. This shows the evidence of the prosecutrix cannot

be believed.

228 In relation to the above connection, it is seen that

PW 24 Abdul Ghachi, (father of the prosecutrix) in para 18 of

his cross-examination has stated that his first statement was

recorded on 18.3.2002 by Circle Inspector, Limkheda, who is

an accused. His second statement was recorded on 9.1.2004

by PW 68 Mr.Tariyal, PW68 of CBI and the portion in the said

statement is marked at exhibit 369. The witness in para 6 of

his evidence has stated that the prosecutrix met him outside

the camp 3 months after the incident at Godhra. At that

time, she disclosed to him that "her daughter Saleha was

killed by accused No.4 Shailesh Bhatt by smashing her on the

ground" and "persons with her were raped." The learned

defence Counsel, cross-examined PW 18 Abdul to bring on

record that whatever he has stated in para 6 of his

examination-in-chief is an omission and no such disclosure

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was made by the prosecutrix to him and therefore, the

incident of rape on the prosecutrix and Saleha's killing did not

take place.

229 In para 25 of the cross-examination of Abdul

Ghachi, he has stated as follows:

"I did state before the CBI about the disclosure
made by PW1 Bilkis. I cannot say why the facts
disclosed by PW1 Bilkis that her daughter Saleha
was killed by accused No.4 Shailesh Bhatt by
smashing her on the ground and that persons with
her were raped do not figure in my statement".

It is to be noted that at that time, Abdul Ghachi

referred to his statement dated 9.1.2004. In para 26, he has

stated that he did not know whether the Circle Inspector,

Limkheda, has recorded his statement and then, the

statement dated 18.3.2002 was shown to him and read over

to him and then, he denied that he gave that statement. He

also stated in his evidence that why this record i.e., exhibit

X18 was made.

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230 In order to ascertain the omission and find out

correct facts, we went through the statement dated 9.1.2004

Exh.369. His statement was mainly recorded for the

identification of the photographs and at the end, he has

stated that his daughter Bilkis met him two months after the

incident and narrated the incident which happened to her and

other relatives. Thus, it appears that this witness was called

for specific purpose i.e., identification of the photographs by

the police and the police did not put specific questions to him

to acquire the details of the narration by the prosecutrix to

him.

231 At the time of recording of the statement of a

witness under section 161 of the CRPC, the police are

required to navigate the witness by putting proper and

relevant questions to bring out true facts from him or her.

Some persons are vocal; some are silent; some are accurate;

some may be timid or some may be miser in expression and

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words. So, it is the police who has to lead the witnesses to

give correct, true and relevant answers and the information

while recording his or her statement. The witnesses who

have seen the incident or who are aware of the incident

sometimes keep quiet and remain very cryptic having an

impression that the incident is so much discussed on number

of occasions and known to everybody, therefore he need not

say anything about the incident but needs to talk only about

his impressions or will answer the questions only which are

asked by the police. A witness may not be aware for what he

is called. In the present case, Abdul Ghachi was called on

9.1.2004. The photographs of the dead bodies were shown to

him. These were the photographs of the dead bodies of his

near and dear relatives. Thus, it appears that the witness has

presumed that the fact of murder and rape must be within

the knowledge of the police and therefore it was not

necessary for him to repeat and speak about it. A common

man does not know the law that though the police may be

aware that who committed murder but yet for the purpose of

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evidence, it should come through a witness and not as a fact

within the knowledge of the police. Therefore, we do not

discard the evidence of Abdul Ghachi as untrustworthy and

similarly it would be erroneous to infer on the basis of his

partial silence that the prosecutrix must not have told him

anything about her rape and killing of her relatives, because

it did not occur. Drawing such conclusion is grossly illogical.

232 The Court cannot go beyond evidence. However,

there are certain circumstances which can be spotted and

read between the lines. His statement recorded on

18.3.2002 cannot be given any importance because it was

recorded by the police officer of Limkheda who was an

accused.

Abdul Ghachi could not meet Bilkis at least for a

period of two months from the occurrence of the incident of

murder and rape. The police of Limkheda were fully aware

that Abdul Ghachi is the father of the prosecutrix and they

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had sent the prosecutrix to Godhra camp. However, they did

not bring the father and the daughter together to find out the

truth and more details from them which in fact, was required

and expected from the investigating agency.

SADDAM :-

233 One more witness corroborates the prosecutrix to

some extent i.e. PW 8 Saddam. Saddam is a child witness.

At the time of giving evidence, Saddam was only about 12

years old. His evidence was recorded in June, 2005. So, at

the time of the incident, he was hardly 8/9 years old.

Considering his age, he was capable of remembering the

incident. He has stated that he was residing in Randhikpur.

He left the house because all Hindus were burning the houses

of Muslims. Then, he alongwith the prosecutrix, his mother

Akli and other family members left Randhikpur. 2-3 days

after they left Randhikpur, two white colour vehicles arrived.

The people in the vehicles were giving slogans. They pelted

stones on them. He said that he was hit with stone on his

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forehead. In fact, even at the time of his evidence a visible

scar could be seen on his forehead which lends further

assurance to his evidence. He deposed about killing of his

mother and other relatives and when he became conscious,

he found Hussain, a four year old boy, weeping in the bush.

He took Hussain with him and they ran towards the road.

Saddam has further stated that one person arrived there and

he took them to Limkheda police station and then, they were

sent to hospital for medical treatment and thereafter to

Devgad Bariya. Thereafter he was studying in 2005 in 4 th

standard at Ahmedabad. He has identified accused Nos. 1

and 7 to 10 in the dock as assailants who were from

Randhikpur. He was cross-examined thoroughly as he was

the only witness on the point of taking name of the accused

as assailants corroborating the evidence of the prosecutrix.

He has stated that there was no jungle at the place where he

was hit with stone. He gave admission that a big stone was

kept on his stomach, however, he removed the stone and he

ran away. We would like to note that in the cross-

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examination, the defence has tried to bring omissions in

respect of the names of the accused persons as assailants

and the offenders were from village Randhikpur. In

paragraph 28, he has stated that he did not recollect whether

he disclosed before the CBI that all the offenders were from

village Randhikpur and he did not know if there is a specific

reference to these persons or not. The defence has moved

applications under section 391 of the Code of Criminal

Procedure before us at the time of hearing the appeal on

22.9.2016 with prayer of recalling ¼ witnesses including the

Investigating Officer Mr.Sinha (PW 72). The learned Counsel

Mr. Ponda has submitted that the Investigating Officer PW 72

had recorded the statement of Saddam. However, these

omissions could not be proved inadvertently by putting those

to PW 72. In the said applications, the defence wanted to

recall some other witnesses to prove the omissions and

contradictions in the statements of the prosecutrix which was

recorded by accused No.18, who could not be put in the box

and, therefore, those omissions and contradictions could not

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be proved. However, for the reasons mentioned therein, we

have rejected all the applications in all the appeals.

234 PW 9 Dr. Mahato was working as a medical officer

at CHC, Limkheda at the relevant time. He has mentioned

about the OPD register, the MLC register and case papers.

He has stated that on the night intervening between 3.3.2002

and 4.3.2002, he has attended Saddam and Mohsin as OPD

patients. Saddam was treated at 1.55 am. He found CLW on

his person admeasuring 0.5 cms over the forehead, right side

and small abrasion over the occipital area. He then issued

MLC dated 4.3.2002 in the name of Saddam under MLC

No.1794 which is marked exhibit 88ABC. He attended Mohsin

at MLC No.1795 and issued certificate at Exh. 90ABC and he

found 5 to 7 linear abrasions on the right cheek of Mohsin

and thereafter, he made endorsement on the case papers

with sign, date at 7.30am on 4.3.2002. The children were

received from constable PW 37 Jorawarsingh R. Rathwa.

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235 PW 37 Jorawarsingh was working at Limkheda

police station as a police constable and he was on duty on

3.3.2002 and 4.3.2002. He has mentioned that Muslims had

sought refuge in Limkheda police station and CHC was next

to the police station. He visited the CHC taking 2 injured

boys to CHC, at around 1.30am in the night of 2.3.2002. The

witness was cross-examined by the CBI prosecutor mainly on

the point of date of taking the boys to CHC and it was

brought on record to contradict him that the children were

taken on the night intervening between 3.3.2002 and

4.3.2002 and not on 2.3.2002 and 3.3.2002. This portion

marked A from the statement dated 24.3.2004 which was

recorded by CBI is proved. Of course, we cannot make

serious use of this contradiction. However, on account of the

contradictions being brought out we can certainly take into

consideration that he cannot be relied upon. It has also to be

borne in mind that PW 37 was attached to Limkheda Police

Station and he had interest in purposely giving wrong dates.

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236 Learned counsel Mr. Ponda while appreciating the

evidence of PW 8 Saddam, has submitted that Saddam was

not in the group of the prosecutrix. He submitted that the

case of the prosecution that Saddam left Randhikpur with

the prosecutrix, is a failed attempt of the prosecution to bring

corroboration to the evidence of the prosecutrix. PW 24

Abdul Issa in paragraph 3 of his evidence has given the list of

the persons who left along with the prosecutrix and has

mentioned the name of Saddam and Hussain, however, he

admitted the omission that he did not give the names of

Saddam and Hussain when his statements dated 9 th January,

2004 and 2nd February, 2004 were recorded. He submitted

that whatever list is given by PW 24 of the persons who left

Randhikpur along with the prosecutrix is different than the

list given by PW 3 Sugra who left with the prosecutrix or the

list given by the prosecutrix. He further submitted that

Saddam was not present at the spot. He relied on the

evidence of PW 4 Salim, brother of Saddam and he argued

that Salim was in Community Health Centre (CHC) at

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Limkheda on 2nd March, 2002. He submitted that Saddam

along with Mohsin/Hussain was at CHC, Limkheda on 2 nd

March, and this falsifies the presence of Saddam at the spot

and thus, his evidence is not to be relied upon. The injuries

sustained by him were very minor which is possible by some

fall. Mr. Ponda discussed the evidence of medical record of

Saddam, Mohsin and the prosecutrix which is maintained by

Community Health Centre, Limkheda. He pointed out that

the Medical Legal Case (MLC) register Article 38 and OPD

register of CHC Limkheda (Article 37) are produced by the

prosecution. Mr. Ponda pointed out that both the registers

are not maintained in regular course of business. The entries

are incorrect. Some of the pages are blank, dates are

manipulated. Names of Saddam and Hussain are mentioned

below the date of 2.2.2002 and not under 4.2.2002. Thus,

Saddam and Hussain were not with the group which was

allegedly attacked on 3rd March, 2002 because they were

produced before the Medical Officer PW 9 Dr. Mahato on

2.2.2002. This falsifies presence of Saddam on 3 rd March at

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kachcha road at Panivel with the prosecutrix.

237 Mr. Ponda tried to make capital of the fact that

Exh. 90A dated 4.2.2002 shows that Saddam was not

examined after the incident but one month prior to the

incident. However, it is seen that PW 9 Dr. Mahato has stated

that after he examined the patient, the medical officer used

to record his observations on OPD case papers. Nurse on

duty used to fill in the particulars of the patient and the

medical officer used to record the observations made and the

treatment advised in his indoor case papers. Thus, it is seen

that the upper part where the date 4.2.2002 is appearing is

filled in by the nurse and is not attributed to PW 9 Dr. Mahato

who on the same document below has written the date as

4.3.2002. Moreover, in the MLC of Saddam which is MLC No.

1794, the date is clearly stated as 4.3.2002 which shows that

Saddam was examined on 4.3.2002.

238 Mr. Ponda has submitted that the evidence of

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Saddam is full of omissions and contradictions. He did not

say anything about the incident of rape. He has admitted

that he did not state before Gujarat CID when his statement

was recorded on 4th March, 2002 that he saw his mother was

hit with dhariya. He did not state about tearing of clothes of

the ladies. He did not state about his mother telling him that

his sister Akli was dead. He also admitted that he did not

state that the persons in the mob were holding weapons like

sword, dhariya, sticks etc. Mr. Ponda pointed out that

Saddam has also admitted that at the time of recording his

statement by CBI he had not mentioned that he was hit by a

'big' stone. On the other hand, Mr. Ponda further submitted

that it is a very minor injury and Saddam did not mention

that he became unconscious. The learned counsel submitted

that his evidence is full of contradictions and thus, he was not

in the group of the prosecutrix when they all started from

Randhikpur and the incident took place. However, it is seen

that Saddam has stated that he was hit by stone. This is

further corroborated by the evidence of PW 9 Dr. Mahto as

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well as the fact that when he was deposing before the Court,

a scar was seen on his forehead.

239 Mr. Ponda pointed out that the prosecutrix in her

previous statement Exh. 57 (Fax) and Exh. 277 makes no

mention of Saddam. Regarding Exh. 57 (Fax) we have

already discussed in detail why it cannot be said to be a

document of which the prosecutrix is the author. Exh. 277

is the only document which is exhibited and can be read

wherein it is noticed that the prosecutrix has not taken

specific name of any relatives but she has stated that "we

started running.... we left Randhikpur...we started to go to

kachcha road..." Thus, she has not taken specific names,

therefore, it cannot be said that Saddam's name is a

deliberate addition made by the prosecutrix in her evidence

just to create one witness to the incident. At this juncture, the

submissions of Mr. Venegavkar that the injuries caused to

Saddam and his medical examination by PW 9 Dr. Mahato on

the early morning of 4.3.2002 is a corroboration of his

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presence at the time of assault, is also required to be

considered.

240 We have seen the record of various entries as

pointed out by Mr. Ponda from MLC register. For example

Entry No. 1883 dated 9th April 2002 is marked Exh 101 and

entry No. 1980 dated 7th May, 2002 is marked Exh 102,

however, there is entry No. 1900 which is on 7 th March, 2002,

i.e., prior to entry No. 1883. With this, we accept that entries

made in MLC register at CHC Limkheda were not made

properly.

241 Mr. Venegavkar admitted that the MLC and OPD

registers of Community Health Centre at Limkheda were not

maintained properly which is clear from the evidence of PW 9

Dr. Mahato. However, Mr. Venegavkar relied on the

evidence of PW 9 Dr. Mahato who has stated that Saddam

was examined by him on 4.3.2002 at 1:55 a.m. When he

examined Saddam, he found C.L.W. measuring 0.5 cm on the

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right side of the forehead of Saddam and abrasion over

occipital area of the scalp on the right side. Accordingly, he

made record of it in the OPD Papers. In Article 37 - OPD

register, we find entries of Saddam and Mohsin / Hussain at

serial No.3908 and 3909. We have gone through the

evidence of PW 9 Dr.Mahato along with the evidence of PW 8

Saddam. Dr. Mahato has stated that Saddam was eight years

old child. If Dr. Mahato had not examined Saddam, there

would be no occasion for him to see Saddam and to state that

he was a boy who was eight years of age. Mr. Venegavkar

submitted that Saddam himself is an injured witness and

hence, his testimony ought to be relied upon because the

testimony of an injured witness stands on a higher footing

than that of other eye witnesses.

242 In relation to testimony of injured witness, Mr.

Venegavkar and Mr. Sait, learned APP relied on the decision

of the Supreme Court in the case of Abdul Sayeed Vs State

of Madhya Pradesh reported in (2010) 10 SCC 259. They

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relied on paragraphs 28 and 29 of the said decision which

reads thus:

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
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. "Convincing evidence is required to
discredit an injured witness". (Vide Ramlagan
Singh Ors. v. State of Bihar, AIR 1972 SC
2593; Malkhan Singh Anr. v. State of Uttar
Pradesh
, AIR 1975 SC 12; Machhi Singh Ors. v.
State of Punjab
, AIR 1983 SC 957; Appabhai
Anr. v. State of Gujarat
, AIR 1988 SC 696;

Bonkya alias Bharat Shivaji Mane Ors. v.
State of Maharashtra
, (1995) 6 SCC 447; Bhag
Singh Ors. (supra); Mohar Anr. v. State of
Uttar Pradesh
, (2002) 7 SCC 606; Dinesh Kumar
v. State of Rajasthan
, (2008) 8 SCC 270; Vishnu
Ors. v. State of Rajasthan
, (2009) 10 SCC
477; Annareddy Sambasiva Reddy Ors. v.
State of Andhra Pradesh
, AIR 2009 SC 2261;

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Balraje alias Trimbak 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 SCC 719, 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:-

"28. Darshan Singh (PW 4) was an injured
witness. He had been examined by the
doctor. His testimony could 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

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a injured 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 cross- examination
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."

243 The Supreme Court in the case of State of M.P.

Vs. Mansingh Ors. reported in (2003) 10 SCC 414 has

observed that the evidence of injured witness has greater

evidentiary value.

244 Mr. Venegavkar read over the evidence of PW 8

Saddam so also PW 24 Abdul Ghachi and the prosecutrix on

the point of the presence of Saddam. He submitted the

omission of name of Saddam is found in the FIR (Exh.56),

however, the name of PW 24 Abdul Ghachi, the father of the

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prosecutrix is mentioned in the FIR (Exh. 56). Mr.

Venegavkar submitted that Exh. 56 is a manipulated

document prepared by the police of Limkheda police station

and some of these police officials were made accused and

Saddam being an eye witness to the incident, his name is

deliberately omitted. However, he submitted that Saddam's

presence is not doubtful. The discrepancies, which are

highlighted by the defence are superficial. He further relied

on the documentary evidence of medical certificate of

Saddam's MLC and OPD registers of CHC Limkheda. He

further submitted that Saddam was taken to hospital and was

attended by PW 9 Dr. Mahato. This fact itself confirms that

Saddam was present at the time of the assault and he has

identified accused Nos. 1 and 7 to 10 as assailants, who were

from Randhikpur.

245 Mr. Venegavkar submitted that from the evidence

of Saddam, it is proved by the prosecution that on the same

day, i.e., 3rd March, 2002, Saddam was taken to Limkheda

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Police Station and he has disclosed the fact, however, his FIR

was not recorded. He further relied on medical papers of

Saddam Exh 88B. Exh 88B discloses that Saddam was taken

to the hospital at 1.55 a.m. on 4th March, 2002. He has stated

that erroneously the date is shown as 4th February, 2002 but

this discrepancy is explained by witness PW 9 Dr.

Rakeshkumar Mahato who examined Saddam.

246 From the cumulative effect of the evidence of PW

8 Saddam and PW 9 Dr. Mahato, the prosecution has proved

that Saddam was injured in the incident on 3.3.2002 and was

taken to the hospital and was attended to by PW 9 Dr. Mahto

on 4.3.2002. Therefore, Saddam corroborates the prosecutrix

on the point of moving with the group and on that particular

day i.e., on 3.3.2002 some persons in white vehicles arrived

at kachcha road and they attacked the prosecutrix and also

Saddam and other persons.

247 However, as far as Saddam is concerned, in his

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evidence, he has not deposed about the prosecutrix or any

of her relatives being raped or killed. He has only stated that

his mother was killed and he received injury on account of

stone being thrown at him, hence, his testimony is of limited

use to prosecution.

MEDICAL EVIDENCE - PW 9 DR. Mahto, PW 17 DR. ROHINI
KATTI AND DW 3 DR. GEETA PISAGAR IN RELATION TO THE
PROSECUTRIX:

248 PW 9 Dr.Mahto is the medical officer who was

deputed at CHC, Limkheda which was under the Government

of Gujarat. Dr. Mahto has stated that he examined the

prosecutrix on 5.3.2002 at 10.10 a.m. when she was brought

to CHC, Limkheda, by a lady constable with yadi written in

Gujarati. So, he made entry at entry No.3983 dated

5.3.2002 (Exh. 95) in the register i.e., OPD register (article

37). Exh. 95A is true extract of Exh. 95. Thereafter, he also

entered name of the prosecutrix at Sr.No. 1796 dated

5.3.2002 in medico legal case register (article 38) which are

marked exhibits 91 91A. She was treated as OPD patient.

He had recorded the observations made by him in OPD case

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papers. He has stated in his evidence that he found swelling

on the left hand and pain in the neck and back of the

prosecutrix. She was also complaining about pain in the right

occipital area of the scalp. These observations are found at

exhibit 92. He issued the MLC certificate on 5.3.2002 after

examining her at around 10 am on 5.3.2002, which is marked

exhibit 93. He was cross-examined thoroughly especially on

the point of maintaining the OPD and MLC registers.

249 The learned Counsel Mr.Ponda submitted that on

the point of injury on the person of the prosecutrix, she has

stated in paragraph 7 of her examination-in-chief that

accused no.1 Jaswantbhai was holding sword and he

assaulted her with sword, at that time, she tried to ward it off

which caused cut injury to her left palm between thumb and

index finger. She was examined by PW 9 Dr.Rakeshkumar

Mahto immediately on 5th March, 2002. Mr. Ponda submitted

that the medical evidence does not support her oral

evidence. He pointed out from the evidence of PW9 Dr.Mahto

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that there was only swelling on her left hand and no other

injury was found. He submitted that the injury noted by Dr.

Mahto is not consistent with assault by sword.

250 The learned counsel Mr. Ponda submitted that the

prosecutrix has deposed that she told about her health and

injuries to PW 9 Dr. Mahto, however, after going through the

evidence of Dr. Mahto, it is clear that he did not tell that the

prosecutrix had informed him about rape on her and killing of

her relatives. The learned counsel submitted that the

prosecutrix did not disclose the fact of rape on her and

killing of her daughter at the earliest opportunity when she

was taken to Dr. Mahto because it never happened that she

was raped nor her daughter was killed as stated by her. It is

pertinent to note that Dr. Mahto had stated that he was not

conversant with Gujarati and the prosecutrix has stated that

she did not understand Hindi. Dr. Mahto has stated that he is

originally from Patna, Bihar. He passed MBBS from Medical

College in Bihar. He joined Medical services as Medical

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Officer in January, 2002 and was posted at Community Health

Centre Limkheda. He has specifically stated that in 2002, he

was only knowing Hindi and little English.

251 Mr.Ponda further pointed out that two entries of

Fakruddin and Qutubuddin are shown at Sr. nos. 3904 and

3905 on 2nd March, 2002 in OPD register of CHC Limkheda

and though they are shown as MLC cases, these two names

are not mentioned on the relevant dates in MLC register. He

relied on the evidence of PW 9 Dr. Mahto in paragraph 42

where PW 9 has admitted that the entries were made by him

in the MLC registers on 2nd March, 2002 or on 3rd March,

2002 but they were not made on the respective dates. The

learned counsel thus submitted that this clearly shows that

the registers were not maintained in the regular course of

business and the entries relating to the prosecutrix are

manipulated. He submitted that in the loose papers, i.e.,

medical certificates which were prepared, wrong dates are

mentioned, wrong timing is given and hence, these

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documents cannot be relied upon.

252 Mr. Ponda submitted that the defence has

examined DW3 Dr.Geeta Pisagar. She stated that she

examined the prosecutrix at Godhra civil hospital and the

case papers (exhibit 138A) were in her hand-writing. She

concurred with the negative finding given by Dr.Katti in

respect of the prosecutrix about the injuries to genitals and

presence of spermatozoa. On the basis of Exh. 138A and

pathological report marked exh. 144 of vaginal swab and

blood, she opined that she did not think that the prosecutrix

might have been raped by three persons.

253 Mr. Ponda elaborated the circumstances to

discredit the evidence of the prosecutrix and relied on the

evidence of PW 17 Dr. Katti and also DW 3 Dr.Pisagar. As

per the evidence of PW 17 Dr. Rohini Katti, the prosecutrix

disclosed the suffering to her and the prosecutrix told her

that accused Nos.1, 2 and 3 raped her. Mr. Ponda pointed

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out that however, on the same day i.e. 7.3.2002, different

names are given by the prosecutrix in the fax Exh.57. We

have already dealt with in detail about Exh.57 and how it

cannot be relied upon.

254 Mr.Ponda on the injuries of the prosecutrix and the

medical evidence before the Court has submitted that as per

her case, which is brought out in the cross-examination, her

clothes were torn and she was dragged nearly for 30 feet by

the accused and thereafter, accused Nos.1, 2 and 3 raped

her one after the other. Mr. Ponda submitted that in such

case, large number of injuries would have been found on her

back but that is not so, which falsifies story given by the

prosecutrix. However, it is to be noted that if the medical

evidence given by PW 17 Dr.Rohini and DW 2 Dr.Pisagar is

considered, it shows that there were multiple abrasions on

her back which in fact corroborates the case of the

prosecutrix.

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255 Mr. Ponda submitted that though she had stated

that accused No.2 put foot with chappal on her neck, there

was no injury on neck which shows that her story cannot be

believed. As far as this aspect of no injury on neck is

concerned, in our opinion it does not necessarily follow that

because foot was kept on neck of the prosecutrix, there

should be an injury. Thereafter Mr. Ponda further submitted

that moreover, she was 5 months pregnant and if 3 persons

would have raped her one after the other, there would have

been injury to her so also the foetus would have been

harmed. He relied on the evidence of Dr.Rohini Katti, who

has stated that she might not have been raped by three

persons.

256 Mr. Ponda further pointed out that PW 9 Dr. Mahto

who examined the prosecutrix on 5th March, 2002 found only

swelling on the left hand of the prosecutrix. However,

Dr.Rohini who examined her on 7.3.2002 i.e. two days

thereafter found CLW injury on the left hand. Thus, there is a

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variance in the evidence of the two Doctors. He pointed out

DW 2 Dr. Geeta Pisagar was M.D. Gynaecologist and she was

superior to Rohini and she has opined that it was not a case

of rape, hence, it has to be believed.

257 On the other hand, Mr.Venegavkar has fully relied

on the evidence of PW 17 Dr. Rohini Katti and submitted that

the defence could not dislodge the evidence of Dr. Katti in

the cross-examination. He pointed out that Dr. Katti

examined the prosecutrix on 7.3.2002 at 6.45 p.m. which is

clear not only from the evidence of Dr. Katti but also from

case paper of the prosecutrix which is at Exh. 138. This case

paper is in the hand writing of Dr. Katti. He argued that Dr.

Katti has described the injuries on the back of the prosecutrix

which corroborate her evidence that she was dragged. Dr.

Katti has stated that she noticed multiple abrasions over back

of the prosecutrix with scab formation. She also noticed

abrasions on her right arm with scab formation. Dr. Katti also

noticed CLW admeasuring about 4 cm. x 2 cm. x 1 cm in the

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web between left thumb and index finger with diffused

swelling on left hand. So also, DW 3 Dr. Geeta Pisagar has

stated that on 7.3.2002, she examined the prosecutrix and

she has admitted her hand-writing on exhibit 138A. Mr.

Venegavkar submitted that the prosecutrix has given the

history to the Doctor and that is reproduced as narrated by

the prosecutrix in the history-sheet (Exh.138 and 138A). In

the said history, it is stated that the prosecutrix along with

her family members ran away from Randhikpur to Chundadi

village, then to Kuwajar and on the way to Panivela a mob

killed her relatives and she was raped by accused nos.1 to 3.

The next day police came and rescued her. He pointed out

that the names of all the 3 accused 1, 2 and 3 i.e., Jaswant

Nai, Govind Nai and Naresh Modhiya are mentioned and that

they raped her on the road leading to village Panivel. He

submitted that these medical papers (Exh. 138, 138A, 141,

143) dated 7.3.2002 corroborate the evidence of the

prosecutrix in respect of the incident and identification of the

persons, who raped her. Mr. Venegavkar drew our attention

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to Exh. 138A and other case papers more specifically to

page 1217 of the paper book and pointed out that the case

papers of the prosecutrix show that she had abrasions on the

back, right breast, gluteal region, left leg and right thigh. He

submitted that the evidence of DW 3 Dr.Geeta Pisagar could

not demolish the case of prosecution and the evidence of

Dr.Katti, who hails from Madhya Pradesh and has

corroborated the fact of recording of history as narrated by

the prosecutrix. DW3 Dr.Geeta Pisagar was from Godhra and

therefore she was won over by the investigating accused

who were investigating the case at the relevant time.

258 Mr.Venegavkar has submitted that prosecution

relies on evidence of PW-9 Dr. Mahto for three points - (i) the

prosecutrix was examined on 5th March, 2002 at Community

Health Centre Limkheda; (ii) Saddam and Hussein / Mohsin

were brought to Community Health Centre at 1.55 a.m. on

4th March, 2002; and (iii) there were injuries on the person of

the prosecutrix, Saddam and Hussein. It is the case of the

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defence that the prosecutrix did not narrate the incident of

rape to PW 9 Dr. Mahto, because no such incident occurred.

Mr. Venegavkar submitted that PW 9 Dr. Mahto did not say

that he examined the prosecutrix for rape. This is because

the prosecutrix was unable to communicate to him that she

was raped. This is because she is a rustic illiterate villager

from Gujarat, who knew only Gujarati hence, it was not

possible for her to communicate with PW 9 Dr. Mahto in

Hindi. Dr. Mahto only knew Hindi and a little English. He

joined Community Health Centre first time in Gujarat on 7th

January, 2002, I.e, 2 months prior to the examination of the

prosecutrix. Earlier, he was at Bihar where Hindi is the local

language. He could not read Gujarati and hence could not

read Yadi Exhibit 302 in which rape was mentioned. Mr.

Venegavkar submitted that there is no cross-examination of

CLW on forehead of Saddam and also the injury on the hand

of the prosecutrix. He submitted that PW 9 Dr. Mahto could

not write history of the patients because Saddam and

Hussein were crying and the prosecutrix spoke to him in

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Gujarati which he could not understand. He further

submitted that there was no nurse in the room, that has been

brought out in the cross-examination in paragraph 74 of PW 9

Dr. Mahto and therefore it was not possible for him to

conduct vaginal examination of the prosecutrix.

259 Mr. Venegavkar has submitted that PW 9 Dr.Mahto

was a Doctor. He fairly submitted that the prosecution is not

relying much on the evidence of Dr.Mahto. Mr.Venegavkar

argued that the OPD registers (article 37) and MLC case

register (article 38) were not actually maintained by this

witness. Many questions were put to him in respect of

maintaining these two registers but they were actually

maintained by the nurse or staff of CHC and not by this

Doctor and therefore, he cannot explain inconsistency in the

entries and dates made in these two registers. He further

submitted that the prosecutrix talked with him in Gujarati.

The witness has stated so and he has also stated that she

did not reply in Hindi. Thus, though the prosecutrix talked

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with him, he did not understand what the prosecutrix said

and he just said that the prosecutrix did not make statement

of any rape before him.

260 Mr. Venegavkar submitted that PW 17 Dr. Rohini

Katti examined the prosecutrix on 7th March, 2002 and he

has relied on Exhibits 138 and 138A, 141 and 143. These are

the case papers of the prosecutrix. He submitted that the

prosecutrix was admitted as indoor patient. He further

submitted that this witness had handed over medical case

papers and documents to CBI under seizure panchnama

dated 5th March, 2004 which is marked as Exhibit 142. This

panchnama is also signed by PW 17 Dr. Katti which is

admitted by her.

261 The learned counsel Mr. Venegavkar argued that

DW-3 Geeta Pisagar, is M.D. (Gynaecology)but the main

doctor who has examined the prosecutrix is PW-17 Dr. Katti.

He submitted that opinion given by DW 3 Dr. Geeta Pisagar

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on the point of rape is inconsistent with law. She said that

partial penetration with or without emission of semen would

not constitute the offence of rape. Mr. Venegavkar

submitted that even partial penetration would constitute the

offence of rape. Dr. Geeta Pisagar has given opinion that the

prosecutrix was not raped. However, it is the opinion of Dr.

Pisagar as expert in the medical field. We have to consider

the offence in legal terminology where the definition of rape

is different than sexual intercourse.

262 We have perused Article 37 OPD register and

Article 38 MLC register of CHC Limkheda. Entry of the

prosecutrix is found at sr. no. 3983 in OPD register and entry

of the prosecutrix is marked as Exhibit 95. The submissions

of Mr. Ponda on the point of MLC and OPD register that they

are not properly maintained at CHC Limkheda is accepted.

The entries which are pointed out by him clearly disclose that

the doctors or the staff had made the entries subsequently

and the names of the patients who were treated were not

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entered in the registers on the respective dates that they

were examined. There are blank pages in MLC register. OPD

and MLC registers are the important documents which could

place contemporaneous record before the Court. Thus, the

prosecution had an opportunity to place such

contemporaneous record, however, it is evident from the

record that PW 9 Dr. Mahto and other doctors and staff at

CHC Limkheda did not bother to maintain these registers

meticulously, though it is expected to maintain the registers

meticulously in the regular course of business. These being

the documents which are supposed to be maintained in the

regular course of business, the documents are rightly

admitted in the evidence as Articles 37 and 38 however they

are not maintained properly in relation to dates is a fact

which is believed by us.

263 However, as per the evidence of PW9 Dr.Mahto, he

had attended 3 patients, i.e., Saddam and Mohsin on the

night intervening 3rd March and 4th March, 2002 and

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thereafter the prosecutrix on 5th March, 2002 at Community

Health Centre. The witnesses i.e the prosecutrix and PW8

Saddam have stated that they were sent to Community

Health Centre on the relevant dates. In fact, defence has also

admitted that the prosecutrix was sent to Community Health

Centre on 5th March, 2002. On this point, defence has

examined DW6 Ushaben, the police constable, who has

stated that she took the prosecutrix to Community Health

Centre on 5th March, 2002.

264 The prosecutrix was subjected to medical

examination twice. First, on 5.3.2002 by PW 9 Dr.Mahto at

CHC Limkheda and thereafter on 7.3.2002 at Godhra civil

hospital, Godhra by PW 17 Dr.Rohini Katti and DW 3 Dr.Geeta

Pisagar. PW 17 Dr.Rohini Katti is a resident of Madhya

Pradesh and M.S. in Gynaecology. DW 3 Dr.Geeta Pisagar is

a resident of Gujarat. DW 3 Dr.Geeta Pisagar was M.D. in

Gynaecology. On 7.3.2002, the prosecutrix was brought to

Godhra civil hospital and PW 17 Dr.Rohini Katti was informed

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by persons who produced her that it was a case of rape.

Thereafter, she examined the prosecutrix along with DW3 Dr.

Geeta Pisagar, who was her senior. The case papers of the

prosecutrix were prepared (Exh. 138, 138A and 143). After

examination by the two Doctors, PW17 Dr. Rohini Katti sent a

written report to the police in writing. The said report dated

7.3.2002 is in her hand-writing (exhibit 137). Dr. Katti stated

that the prosecutrix disclosed to her that she along with her

relatives left Randhikpur due to riots and when she was on

road leading to Panivel along with her relations, a mob

attacked them and killed her relations and she was raped by

three persons. She disclosed the names of rapists that is

accused nos.1 to 3 which was mentioned in the medical

history. Her case paper with medical history as an indoor

patient No.15767 dated 7.3.2002 is produced which is

marked exhibit 138. PW 17 Dr.Rohini Katti stated that she

noticed one CLW about 4cm X 2cm X 1cm in the web

between left thumb and index finger as well as defused

tender swelling on the left hand. She noticed multiple

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abrasions over back and right arm with scab formation. She

has opined that those injuries were 4 to 5 days old. This fully

corroborates the evidence of the prosecutrix of being

assaulted by Accused No.1 with sword. The prosecutrix was

pregnant at that time. Dr. Katti noted down that the

prosecutrix was 20 weeks' pregnant. She sent vaginal swabs

and blood sample of the prosecutrix to forensic laboratory.

The prosecutrix was admitted as an indoor patient for one

day and discharged on 8.3.2002. Dr. Katti has stated that no

police yadi was sent along with the prosecutrix. Though she

had sent the report (Exhibit 137), no yadi was sent. She sent

reminder on 13.3.2002 and ultimately, the yadi was received

on 18.3.2002 (Exh. 140). The CBI seized the case papers

and relevant medical papers of the prosecutrix from PW 17

Dr. Rohini Katti under seizure memo on 5.2.2004, which is

marked exhibit 142. Dr. Katti identified her signature on it.

The medical certificate issued is marked exh. 143 wherein

she described the details. Dr. Katti stated that she had joined

her senior in the medical examination. She identified the two

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sheets of case papers on which DW 3 Dr.Geeta Pisagar has

signed and has recorded observations which is marked

exhibit 138A and certificate is marked exhibit 143.

265 No doubt, in her cross-examination Dr. Katti has

admitted that no spermatozoa were detected in the vaginal

swab sent to the pathological laboratory, Godhra and no

injuries were detected on external or internal genital organs

and no semen was found on the genital organs of the

prosecutrix. Dr. Katti gave admission in the cross-

examination that she was not in a position to say from these

aspects as to whether the prosecutrix was raped or not. In

this connection it may be stated that the incident occurred on

3.2.2002, it is not expected that on 7.2.2002 when the

prosecutrix was examined, traces of semen would be found.

As far as finding of injuries on genitals is concerned, the

prosecutrix was a married woman. Much prior to the incident

she had given birth to a child which is seen from case paper

of the prosecutrix Exh. 138A that previously she had a full

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term normal delivery of a female child who died in the riots.

In such case, it is not expected that there would be any

injuries on the genitals of the prosecutrix on account of rape.

As far as Dr. Katti not being able to state whether the

prosecutrix was raped or not, we would like to make a

reference to Exh. 137 which is a letter written by PW 17 Dr.

Rohini Katti to the police Inspector of Godhra town. It is

stated therein that one Bilkis Yakub Rasul Patel age 20 years

came to Civil Hospital Godhra from rescue camp at Godhra

on 7.3.2002 at 6.45 p.m. with history of rape five days ago.

266 PW 17 Dr.Rohini Katti and DW3 Dr.Geeta Pisagar

have admitted that the documents at exhibit 138 and 138A

are in their respective hand-writing. In Exh. 138, it is found

that the prosecutrix has mentioned the names of accused

Nos.1,2 and 3. The injuries are also mentioned. In Exh. 138A

which is in the hand-writing of DW 3 Dr.Geeta Pisagar, there

is a mention of history of rape. She found the injury on the

left hand of the prosecutrix. She has admitted in the cross-

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examination by the prosecution that she did not record her

opinion that there was no possibility of rape on the

prosecutrix. Though DW 3 Dr.Geeta Pisagar did not record a

positive finding of rape, she also did not record the opinion

about non-possibility of rape on the prosecutrix. The

prosecutrix was married. She had a daughter who was 3½

years old. She was pregnant second time. The most

important fact in respect of absence of spermatozoa

internal or external injuries on vagina is that when the

prosecutrix was examined almost 5 days had elapsed since

the incident. The prosecutrix was examined by these

Doctors almost 5 days after the incident and therefore, there

cannot be any possibility of finding of spermatozoa or semen

so many days after the incident. However, after 5 days,

formation of scab on the abrasions was seen on the back of

the prosecutrix which further supports her case.

267 In relation to the contention of Mr. Ponda that the

prosecutrix was dragged for 30 feet and absence of abrasion

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on her back disproves her theory, it is to be noted that the

prosecutrix did not state in the examination-in-chief that she

was dragged for 30 feet. She has stated that she was taken

away near the tree. However, in what manner, she was

dragged is not stated by her. In the cross-examination, the

defence has sought admission from her that she was dragged

for 30 feet. However, she has not stated that when she was

dragged, she was naked. She has admitted that her clothes

were torn. However, tearing of clothes does not mean that

the person was naked at the relevant time so also which

portion of the clothes was torn also matters. It is not

necessary that when the person is dragged, his or her back

should touch the ground. A person can be forcibly dragged

without the back touching the ground. Thus, it is not

necessary that when the prosecutrix was taken there forcibly

and her clothes were torn, there should be marks or

abrasions on her back or buttocks. It is to be noted that as

per the case of the prosecutrix, she was raped on the

morning of 3.2.2002. Thereafter, for one day, she hid on the

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hillock. Next day, she climbed down and then she was taken

to Limkheda police station on 4.2.2002. On 7th March she

was sent for medical examination, four days had already

gone by. However, it is pertinent to note that PW 17 Dr.

Rohini Katti found a number of abrasions on the back of the

prosecutrix which supports the case of the prosecutrix.

268 In relation to the contention of Mr. Ponda that it is

the case of the prosecutrix that accused No. 1 was going to

assault her with sword, hence, she held out her hand to ward

off the blow due to which she received injury on her left hand

and Dr. Mahto finding only swelling on her palm which

falsifies the case of the prosecutrix, we may state that Dr.

Mahto could not understand what the prosecutrix was saying.

He did not think it is a serious case and hence he examined

her cursorily. His evidence also shows that there was a huge

crowd at the hospital, he was the only doctor dealing with the

patients, hence, he did not examine the prosecutrix very

carefully. However, the evidence of Dr. Katti clearly shows

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that a CLW was found on the hand of the prosecutrix which

was 5 days old. The injury seen by Dr. Katti on the palm of

the prosecutrix is consistent with the case of the prosecutrix

of accused no.1 assaulting her with sword.

269 It appears from the evidence of PW 9 Dr. Mahto

that he did not understand what she was telling and

moreover, he was a male Doctor. From his side, he being a

Doctor, all patients irrespective of the gender, are same

before him. However, the prosecutrix would not have been

comfortable with a male doctor so also there was barrier of

language. She was also threatened by the police not to

disclose the names of the assailants and rapists otherwise

poisonous injection would be administered to her at hospital.

Though she has not stated specifically in the evidence but the

fact that she deposed that she told Dr. Mahto but she could

not explain it properly, appears true. She might have

attempted to disclose but as she could not succeed she left it.

On 7.3.2002 when she was taken to PW 17 Dr.Rohini and DW

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2 Dr.Pisagar, she told that she was raped. In fact earlier she

has disclosed this fact of rape to PW 18 District Magistrate

and Collector Jayanti Ravi and PW 23 Govindbhai Patel on

6.3.2002. She has also disclosed that her relatives were

killed. When she was sent for medical examination as a

victim of rape, that time, she was carrying a foetus of 5

months. It is not necessary that after three successive sexual

intercourse, the foetus must be affected as contended by Mr.

Ponda. DW 3 Dr.Geeta Pisagar has expressed her opinion

regarding rape on the prosecutrix and according to her, there

cannot be rape if there is partial penetration with or without

emission of semen. The Doctor has medical knowledge and

is not expected to be conversant with legal definition of

rape. Rape is a legal terminology and therefore, in medical

science, there is no such act of rape but it is always sexual

intercourse. Whatever opinion she has expressed is a

medical view and therefore, it cannot be given any weightage

so far as evidence in rape case is concerned. Under the law,

even in a case of partial penetration or no ejaculation, the

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offence of rape is complete. Therefore, the act fulfills the

definition of rape in law and not of sexual intercourse under

medical science.

270 On 5th March, 2002 when the prosecutrix was

examined by PW 9 Dr. Mahto, on paper there is nothing to

show that the prosecutrix has disclosed that she was raped

and yadi, which is marked as Exhibit 203 sent by Limkheda

Police Station to Medical Officer is also silent about whether

the prosecutrix was raped or not as yadi was prepared

consistent with FIR Exh. 56 which is a fabricated document. In

the medical examination conducted by PW-17 Dr. Katti and

DW-3 Dr. Pisagar on 7th March, 2002 her vaginal swab and

blood was taken and samples were sent to Forensic

Laboratory. However, the report of finding of semen or

spermatoza is negative. Such report is bound to be negative

because the vaginal fluid samples were taken 4 days after

the incident of rape.

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271 At this stage, we would like to highlight one point

that yadi was sent by Limkheda Police station on 5th March,

2002 to PW-9 Dr. Mahto Medical officer, Community Health

Centre Limkheda. In that yadi which is marked as Exhibit

203, the offence under section 376 was mentioned, however,

there is no mention of rape on the prosecutrix. In Exh. 203

there is specific mention that the palm of the prosecutrix

was injured so she was to be examined. Thus, as far as Dr.

Mahto was concerned, there was no clue whether the

prosecutrix was raped. There was no reason for PW-9 Mahto

to be aware of the contents in Exhibit 56 wherein there was

no mention that the prosecutrix was raped but the narration

of rape of other ladies was only mentioned. The said yadi

was in Gujarati and PW 9 Dr. Mahto could not read Gujarati.

According to the evidence of the prosecutrix, she told in

Gujarati that she was raped, however, Dr. Mahto did not

understand what the prosecutrix was saying. PW-17 Dr. Katti

has stated that the prosecutrix was brought to her by Dr.

Jamila of Godhra Hospital and she examined the prosecutrix

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as she gave history of rape. She immediately sent medical

report dated 7th March, 2002 which is marked Exhibit 137.

PW-17 Dr. Rohini Katti addressed that report to P.I. Godhra

specifically stating that it is a medico legal case of rape

during riots which has taken place 5 days back. Pursuant to

this note, PW-17 Dr. Rohini Katti was expecting yadi from

Limkheda Police Station, however, yadi was not sent

immediately. She waited for it. Again she sent a reminder on

13.3.2002 (Exh.139) and then yadi was sent which was

received on 18th March, 2002. The yadi is marked as Exhibit

140. Thus, 10 days after medical examination of the

prosecutrix by PW 17 Dr. Katti, the yadi was sent by

Limkheda Police Station. It is the same police station which

earlier sent the prosecutrix for medical examination to CHC

Limkheda along with first yadi dated 5th March, 2002 , which

is marked Exhibit 203.

272 We have perused both the yadis Exhs. 203 and

140 and compared them with each other. We found that in

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yadi Exhibit 203 though section 376 was written but it was

not in relation to the prosecutrix. However, in this yadi, there

was specific mention of injury to palm of the prosecutrix, so

it was suggested that she has to be treated for that injury.

However, in yadi Exhibit 140 though PW 17 Dr. Katti had

mentioned that the prosecutrix has come there with the

history of rape committed on her about 5 days back during

the riot and she requested for yadi, the police officer of

Limkheda did not mention that the prosecutrix is to be

examined medically for the offence under section 376 of

Indian Penal Code. It was necessary and obvious that any

police officer, while preparing yadi in relation to victim of

rape, would request doctor to examine victim medically for

sexual assault. However, yadi Exhibit 140 is vague and it

does not specifically mention that the prosecutrix has to be

medically examined in relation to rape. Thereafter it was

further necessary step for Limkheda Police to record

supplementary statement of the prosecutrix as soon as they

were informed about the rape. However, this was not done.

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Thus, we don't require any other proof to infer that police

from Limkheda Police Station wanted to suppress the fact of

rape committed on the prosecutrix. They wanted to screen

the perpetrators of the crime for the reasons best known to

the police. This is how they gagged mouth of the prosecutrix

so that her cry for justice would not be heard by anybody.

273 On going through the medical evidence, we are of

the opinion that the evidence of PW 17 Dr. Rohini Katti fully

corroborates the prosecutrix.

TAINTED INVESTIGATION

274 As per the case of the prosecution, 14 persons

were killed in the incident dated 3.3.2002. Out of these 7

bodies were found. The evidence of PW 34 Amrutsingh Khant

and PW 35 Ranjeetsingh Patel show that 7 corpses were

found i.e. of 4 females and 3 children. The evidence of panch

witness Baria also shows that 7 bodies were found. The

defence has not disputed this position. According to the

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prosecution, the bodies of 7 persons are as under:

      (1)              4 women i.e. Haleema, Ameena, Sugra

and Shamim;

(2) 2 boys - Irfan and Aslam;

(3) One girl Munni.

However, the body of 2 days old daughter of

Shamim and Saleha 3½ year old daughter of the prosecutrix

were not found but the photographs of dead body of Saleha

are on record.

275 On 4.3.2002, FIR of the prosecutrix was recorded

at Limkheda police station by accused No.17 Somabhai

Koyabhai Gori and DW1 Budhsingh who scribed the same.

DW 6 Chandubhai also scribed 1 copy of FIR. At that time,

PW 35 Ranjeetsingh the police constable, was present. He

has stated that a Yadi was prepared for sending the

prosecutrix for medical examination. A copy of the said yadi

dated 4.3.2002 was shown to PW 35 and he has identified the

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certified copy of the said yadi. Exhibit 203 is the yadi. Yadi

discloses that it was prepared on 4.3.2002 at Limkheda police

station. However, the prosecutrix was not sent for medical

examination on the same day. It has come in the evidence of

DW 7 Usha and PW 7 Madina that CHC Limkheda was very

close to Limkheda police station. We do not find any good

reason for not sending the prosecutrix for medical

examination on 4.3.2002. The prosecutrix had suffered

one injury to her hand and it was visible. It was noticed

by PW 19 Feroz Ghachi and the prosecutrix has also stated

about the injury in her examination in chief. The case

of the prosecutrix was that she had disclosed to the

Limkheda police that she was raped by three persons. If

there is a complaint of rape made by any woman to the

police, then it is the first and foremost duty of the police to

send that lady for medical examination to collect medical

evidence and also to ascertain the truthfulness. Instead, the

police i.e., accused No.16, who was in charge of investigation

did not send her for medical examination. This is a big flaw in

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the investigation of Limkheda police station which in fact

goes against the accused persons and this flaw is an

incriminating circumstance against the accused as not

sending the prosecutrix to CHC on the same day along with

the Yadi, though the same was issued, itself corroborates the

case of the prosecutrix that she disclosed that she was raped

and injured but with a view to suppress the fact, she was not

sent for medical examination on that day. She stayed

overnight in the police station and was sent on the next day

for medical examination. The evidence of PW 35

Ranjeetsingh Patel shows that the prosecutrix stayed

overnight at Limkheda Police Station.

276 We came across one letter which is marked exhibit

200 which was written in Gujarati to the medical officer CHC,

by Investigating Officer of the Limkheda police station in C.R.

No.59 of 2002. This letter is dated 4.3.2002 and it was

received by the medical officer on 5.3.2002 at 12.10pm. It is

surprising that when Limkheda police station and CHC are

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situated very close why it was not sent on the same day but it

was received in the afternoon on 5.3.2002. This shows the

nature of the investigation.

277 Another biggest manipulation by the Investigating

accused in the case is not to take the prosecutrix to the spot

on the same day i.e., on 4.3.2002 and to only visit the spot at

Kachha road at night on the same day ie., on 4.3.2002.

Though the police had visited it, they did not conduct either

inquest panchanama or spot panchanama. It was argued by

the learned defence counsel by way of explanation that the

police informed the Magistrate and they wanted permission

from the Court to carry out the inquest panchanama and after

getting such permission from the Court, they conducted

inquest and spot panchanamas on the next day i.e., on

5.3.2002. Another explanation which has come forward from

the defence is that the bodies were lying in the jungle and

therefore it was not possible to conduct the spot panchama

or inquest panchanama at night. Both the explanations are

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unsatisfactory.

278 The learned Counsel Mr.Venegavkar vehemently

argued on the point of taking of the photographs by the

witnesses and he has discussed and analysed their evidence

at length and pointed out that the photographers PW 10 Soni

and PW 28 Patel did not support the prosecution with an

object to defeat the prosecution case though they had gone

there. In fact, they had gone there and took photographs on

4.3.2002 and 5.3.2002. After unfolding of the entire

evidence, especially of the police officers from Limkheda

police station, the police persons who supported the

prosecution, the other police persons and the hostile

witnesses, we are unable to accept the explanations of the

defence that on that day i.e,. 4.3.2002, they could not carry

out the inquest and spot panchanamas. Though the police

witnesses like PW 34 Amrutsingh Khant and PW 35

Ranjeetsingh Patel remained silent about the visit of accused

persons along with the photographers on 4.3.2002 and

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5.3.2002 and they took the photographs, considering the

documentary evidence especially of PW 68 Tariyal and PW 72

K.N.Sinha and so also the cross examination of these hostile

witnesses, we are convinced that on 4.3.2002, the accused

and the police have visited the spot and took the

photographs of the dead bodies. The photographs of the

dead bodies themselves speak the truth.

279 Regarding burial of dead bodies and tainted

investigation, Mr.Venegavkar has submitted that the dead

bodies which were found on the spot were hurriedly buried

so that no other person or the relatives of the dead persons

was given any opportunity of identification of the deceased.

Panch PW 15 Baria Nayaka did state in his evidence that one

muslim person was present to identify the dead bodies and

he identified dead body of Haleema. He relied on the

evidence of PW 56 Dr. Rudra, who was a Professor in Forensic

Department. In his evidence, he has stated that the clothes

were found when the bodies were exhumed in January, 2004.

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Thus, those clothes could have been seized and preserved by

the police, who were investigating the offence for the purpose

of identification and also as evidence of murder. However,

the police i.e. previous investigating agency did not seize

most of the articles which were found on the person of the

dead bodies. For example, in exhibit 123, there is a

description of the articles on the body of Haleema that is one

nose ring, two plastic bangles, blouse and legwear were

found on the body of Haleema. However, those articles were

not seized and not preserved.

280 Mr.Venegavkar further submitted that missing of

dead body of Saleha is another circumstance in respect of

defective investigation. He submitted that photograph of

dead body of Saleha was taken on 4.3.2002. However, her

body was not found at the time of inquest panchanama at

Exhibit 123 and spot panchanama at exhibit 124 which were

drawn on 5.3.2002. Mr. Venegavkar submitted that the

bodies were left unguarded. According to Mr. Ponda, Saleha

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was not killed in the incident and totally false story is put

forward by the prosecutrix. In this connection, it may be

noted that the medical case papers Exh. 138A of the

prosecutrix were prepared by PW 17 Dr. Katti and in relation

to the prosecutrix it is mentioned in the case papers that one

full term normal delivery female died in the riots. This shows

that the prosecutrix lost her minor daughter in the riots. It is

also pertinent to note that it is not the case of the defence

that the prosecutrix had no 3½ year old daughter by the

name of Saleha or that Saleha is still alive. Accused nos. 1 to

12 were residents of Randhikpur, the prosecutrix was also

residing in Randhikpur, she knew accused nos. 1 to 12,

hence, these accused would be in a position to say that the

prosecutrix had no such daughter or that Saleha was still

alive, but they have not raised any such defence.

281 Mr.Venegavkar while commenting on investigation

relied on Exhibit 149 - a letter dated 8.7.2002 written by the

District Magistrate, Panch Mahal, Godhra i.e., PW18 Jayanti

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Ravi to Additional Chief Secretary, Home Department. He

pointed out that in this letter, PW 18 has informed in detail

about the case of the prosecutrix, however, no steps were

taken by investigating officers to investigate the matter

properly. He also drew our attention to the letter dated

7.3.2002 written by PW 18 to Superintendent of Police Dahod

regarding case of the prosecutrix as well as subsequent

letters and pointed out that no steps were taken by the police

to arrest the accused or investigate the matter.

282 On FIR Exh. 56, Mr.Venegavkar submitted that it is

not recorded on 4.3.2002 at 10.45 am but it was recorded

much later after some deliberation. In support of his

submission, he relied on station diary, which is article 69 and

entries i.e., 406A and 406B. He submitted that it is the

defence case that accused No.17, started recording the FIR

at 10.45 am. Mr. Venegavkar pointed out that in fact,

accused No.17 took charge at 11.35 am on that day i.e. on

4.3.2002. PW 72 has stated that page 34 of station Diary

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shows that charge was handed over to accused no. 17 at

11.35 a.m. The evidence of DW 5 Head Constable Jaisingh

Patel shows that he handed over the charge to accused no.

17 at 11.35 a.m. on 4.3.2002. This is stated in para 5 of his

evidence. DW 1 has also stated that Somabhai took charge

on 4.3.2002 at 11.35 a.m. He also relied on PW 72 Sinha

and DW 1 Budh Singh. He submitted that there is an

overwriting on exhibit 56C. So also, in exhibit 56, a different

ink was used in relation to timing. He further submitted that

copy of FIR was sent to the Magistrate late i.e., on 8.3.2002

and not forthwith as is the mandate under Section 157 Cr.P.C.

283 Mr.Venegavkar submitted that it is a tainted

investigation and it is the duty of the police to investigate

as prescribed under the law. He relied on Rule 64 of

Gujarat Police Act, where it is mentioned in Sub-rule (f)

that the police have to discharge such duties as are imposed

on him by any law for the time being in force. So, the

procedure for investigation laid down under Chapter XII of the

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Code of Criminal Procedure is to be followed. He also relied

on the definition of 'investigation' under section 2(h) of the

Code of Criminal Procedure which includes all proceedings

under the Code for collection of evidence conducted by a

police officer or by any person (other than the Magistrate)

who is authorised under the Act.

284 Mr.Venegavkar has submitted that the

investigation is tainted and, therefore, it is the duty of the

Court to uphold the fundamental right of free and fair trial

which is guaranteed under Article 21 of the Constitution of

India. He further submitted that when the investigation is

defective and bad, then, it is the duty of the Court to uphold

Article 21 of the Constitution which guarantees free and fair

trial. On this point, he relied on four judgments of the

Supreme Court in the case of Baladin Ors. vs. State of UP

reported in AIR 1956 SC 181, State of A.P. vs. Punati

Ramulu Ors. reported in AIR 1993 SC 2644, Babubhai

vs. State of Gujarat reported in (2010) 12 SCC 254 and

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Dayal Singh and ors. vs. State of Uttaranchal reported in

(2012) 8 SCC 263.

285 We have gone through the said judgments.

Baladin (supra) was relied on, on the point of honest,

efficient and fair investigation is a requirement of each and

every criminal trial. In the case of Baladin (supra), it was

observed as follows:

"11. On appeal by the convicted persons, the Division
Bench of the High Court wrote a very painstaking
judgment which runs into 83 printed pages. The
judgment tends to be discursive and could have been
more concise without affecting its quality. The High
Court went into meticulous details but, as will presently
appear, fell into a grievous error as a result of which it
acquitted 20 of the appellants, a number of whom had
been ascribed leading parts in the occurrence which
was the subject matter of the charge against them.

The High Court held that the Sub-Inspector, the
Circle Inspector and the Deputy Superintendent of
Police who were successively in charge of the police
investigation, to put it mildly, were not very circumspect
in conducting the investigation. The investigation

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suffered from lack of thoroughness and quickness, with
the result that statements of witnesses were recorded
by them in the "most haphazard manner" and many
matters of importance and significance to the case were
omitted. It also observed that:

"Sub-Inspector Raj Bahadur Singh for oblique
motives distorted their statements, ...... that his attempt
was to introduce such variations in the statements and
to leave such loopholes as to damage the ultimate
result of the case to as large a measure as possible".

The High Court in the main relied upon the
testimony of the four eye-witnesses, the ladies
belonging to the family of the victims, but with
reference to the testimony of Paiyyan Devi and Shanti
Devi further observed that their evidence should be
scrutinized and relied upon only when corroborated by
other evidence on the record. Hence in respect of those
two witnesses, the learned Judges were not as sure as in
respect of the others.

Having held that the four eye-witnesses were on
the whole reliable and that the record of their
statements made by the investigating Sub-Inspector
was not honest and faithful, the High Court fell into the
error of acquitting all those accused persons, appellants
before it, whose names did not find a place in the record
made by that police officer. In other words it rejected
reliable testimony with reference to that very record
which it had condemned as unreliable."

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Thus, both the parties before the Court should be

given a fair trial.

286 Punati Ramulu (supra) and Babubhai (supra) are

relied on by the learned Prosecutor on the point of tainted

investigation. In both the cases, the police have dishonestly

investigated the case. In the case of Punati Ramulu

(supra), the Investigating Officer did not record intentionally

the FIR on receipt of information of cognizable offence and

the Supreme Court held that such investigation is to be

discarded. In Babubhai (supra), the Supreme Court has

dealt with the law relating to manipulated investigation,

which is laid down in the earlier cases by the Supreme Court.

In the case of Babubhai (supra), there were two different

FIRs lodged by two different persons after dispute between

them. The High Court quashed the second FIR. Therefore,

appeal was made and while dealing with the said issue, the

Supreme Court held that in order to prevent miscarriage of

criminal justice, the Court is empowered to transfer the

investigation to an independent agency.

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287 In the case of Dayal Singh (supra), it was held

that when there are deliberate acts of omission and

commission, resulting in improper and defective investigation

and there is dereliction of duty then, it is obligatory upon the

Court to pass appropriate directions including

directions in regard to taking of penal or other civil

action against such officers. In the said judgment, the

Supreme Court has relied and referred to earlier judgments

wherein the Supreme Court held that if suspicious and illegal

investigation is not scrutinized independently, then, the

criminal trial plummets to the level of investigating officers

ruling the roost.

288 On the point of digging of dead bodies, the

prosecution has examined PW13 Mukeshbhai. He has stated

that he was taken to Kottar i.e., the ravine at around

12.30pm. There, he found two Doctors - one male and

another female and others. He found 7 bodies lying including

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4 female and three children. He went alongwith the police.

He dug a waist deep pit and all dead bodies were buried in

the pit. He and his three colleagues were paid Rs.200/- by

the police. The work was over by 5pm to 5.30 pm.

289 We have already observed that not a single skull

of the dead bodies was found at the time of exhumation. As

per PW56 Rudra, 109 bones were found from the grave and

they were of 5 different individuals. As per the evidence of

PW13 Mukeshbhai Kalubhai Harijan, all 7 bodies were put in

one pit and buried after piling them one on the other. It is

pertinent to note that there is no suggestion to this witness

that there were only five bodies or there were no bodies. This

position that there were 7 bodies appears to have been

accepted by the defence. Then where did the bones of two

bodies disappear remains unanswered.

290 When we perused the photographs, we found

exhibit 59/4, which is a photograph of a 3 to 4 years old small

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girl wearing green (pista) colour frock/top and legwear.

According to the prosecution, this photograph was taken on

4.3.2002 by PW 28. The evidence in respect of the

photographs is already discussed earlier in detail. However,

the body of Saleha was not found on 5.3.2002 i.e., on the

next day when accused Nos.13, 14 and 16 went to Kesharpur

jungle and drew scene of offence Panchanama and Inquest

panchnama. From the evidence of the prosecutrix

corroborated with photograph of Saleha and the other

circumstances cumulatively brought on record, it is evident

that Saleha was killed on 3.3.2002. It was the duty of the

police officer i.e., accused Nos.13, 14 16 to depute

somebody on 4.3.2002 itself to take care of the bodies which

were lying. This was not done. This shows another lapse in

investigation.

291 Another glaring lapse is that the prosecutrix was

not taken to the spot to identify the spot or the dead bodies.

We fail to understand why the prosecutrix was not taken to

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the spot for identification of the dead bodies or even to

identify the spot.

292 It is to be noted that police officers, who were part

of the investigating team are accused Nos.13 to 18. The FIR

Exhibit 56 was recorded by one of the accused, i.e., accused

No.17 Somabhai Koyabhai Gori and the statement of the

prosecutrix dated 7th March, 2002 was recorded by accused

No.16 Ramsingh Mitlibhai Bhabhor, Circle Inspector of

Limkheda. Thus the investigation was not only unsatisfactory

but it smacked of dishonest steps to screen the culprits. This

itself is the most incriminating circumstance against the

accused. Earlier investigation has played the role of villain in

this case. That the investigation was tainted can also be seen

from the fact that in paragraph 19 of the evidence of PW9

Dr.Mahato i.e the Doctor attached to Limkheda Community

Health Centre, he has stated that no postmortem of any body

was conducted on 4th March or 5th March, 2002 and there was

no request from the police to conduct any postmortem.

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Despite Dr. Mahto being available, the postmortem

was got conducted by accused Nos. 19 and 20 Dr.

Arunkumar Prasad and Dr. Sangeeta Arunkumar Prasad, a

husband and wife team who was attached to Dudhia and

Bandipur respectively.

293 On the point of quality of investigation, we

highlight two major aspects: (i) identification of the dead

bodies and (ii) keeping silence over the queries made by

PW18 District Magistrate Jayanti Ravi and suppression of

original statement Exh. 277 dated 6.3.2002 by the police at

Limkheda police station.

(i) Identification of dead bodies: Admittedly 7

dead bodies were found at the ravine i.e., Kottar. To

take the prosecutrix to the spot was an obvious part of

the investigation. However, the prosecutrix who is the

informant and who is a victim and relative of the

deceased was not taken to the spot for identification of

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the spot or dead bodies. No close relative of the

deceased was taken on 4.3.2002 or 5.3.2002 for

identification of the dead bodies. However, one Abdul

Sattar Ghanchi was taken to the spot to identify the

bodies. He was not a close relative of any of the

deceased. He identified only the body of Haleema i.e

mother of the prosecutrix. This circumstance has

created a big question mark before us and undoubtedly

it leads to the only inference that this was a deliberate

act on the part of the police. Identification of the dead

bodies is a first and the basic step in the investigation.

Without that, the police have conducted the post-

mortem with the help of accused Nos.19 and 20 and

hurriedly buried the dead bodies with sacks full of salt,

so that the bodies will decompose faster.

In the alleged FIR (Exh. 56), there was a

mention of rape on ladies. Even if it is taken as it

stands, then it was the duty of the police to ask the lady

Doctor i.e., accused No. 20 Dr. Sangeeta Arunkumar

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Prasad to conduct a proper examination of the private

parts of the dead bodies and give a finding accordingly.

However, in the inquest panchanama at exhibit 123 in

the description, there is a mention that marks of

cruelty / violence were found on the private parts of one

female dead body and some white fluid was seen

coming out of the private parts of two female dead

bodies. In such case, it was necessary for the medical

officer to give specific finding regarding violence and

marks of injuries on the private parts and to take the

cotton swab samples of the fluid coming out of the dead

bodies and send the same to the forensic laboratory.

However, nothing was done by the police or the Doctors

but they conducted haphazard post-mortems, dug a pit

with the help of labourers, put salt in it and buried 7

dead bodies one on top of the other in the same pit. In

the photographs, 7 bodies are each complete in one

piece, however, when the bodies were exhumed by the

FCSL and CBI on 28/30.1.2004, not a single skull was

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found which is extremely strange to say the least.

294 The second part of the investigation is the first

disclosure by the prosecutrix about the names of the accused

in exhibit 277 i.e., the statement dated 6.3.2002. This

statement was recorded by Executive Magistrate PW 23

Govindbhai pursuant to directions given by the Collector /

District Magistrate PW 18 Jayanti Ravi. This statement was

sent by PW 18 Jayanti Ravi to Mr. Jadeja. SP, Dahod

alongwith the letter dated 7.3.2002 Exh.147. She has

mentioned that the statement of Bilkis (prosecutrix) was sent

to take necessary steps. There is a chain of correspondence

from the side of PW 18 Jayanti Ravi, thereafter for two

months, whereby she asked about what happened to the

complaint of the prosecutrix. She has directed the officer to

take steps and arrest the accused persons. Exh. 148A is a

reminder sent by her on 11.3.2002. Thereafter, she sent a

letter on 18.3.2002 to Dy.SP, Dahod marked 148B demanding

report of progress in the case of the prosecutrix. However,

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there was no reply. She again sent letter dated 3.5.2002

marked Exh. 148C. By 27.6.2002, no report was sent by

Dy.SP. so, letter exh. 148D was sent. Another letter was sent

on 29.6.2002, which is marked Exh.148E. Through the

police witnesses PW 23, PW 48, PW 49, PW 50, PW 51 and

PW 52, the prosecution has successfully brought on record

the fact that the said letter dated 7.3.2002 sent by PW 18

District Magistrate Jayanti Ravi was suppressed by the police

at Limkheda. At that time, accused No. 16 and accused No.

18 were in charge of the investigation and holding key

positions in the investigation at Limkheda. There is no

answer why there was no immediate response to the letter of

the District Collector dated 7.3.2002 or reminder dated

11.3.2002. No reply was given to her till July 2002. Thus,

there was total silence on the part of the police from

Limkheda and the obvious reason is the names of 12 accused

persons were disclosed by the prosecutrix in the said

statement. This silence does not speak of negligence or

inertness but apparent dishonesty and callousness. Hence, all

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omissions, contradictions and discrepancies brought out in

the evidence of the prosecutrix have to be evaluated keeping

this in mind. As far as the statement Exh. 277 and

statements of the prosecutrix recorded by CBI are concerned,

there is no major omission or contradiction.

MR. VENEGAVKAR ON INQUEST PANCHNAMA ALONG WITH
FAULTY INVESTIGATION:

295 Mr. Venegavkar submitted that the entire

investigation is manipulated. He pointed out that as per the

inquest Panchnama exhibit 123 it was carried out on

5.3.2002 between 10 a.m. to 12 noon. Mr.Venegavkar

submitted that the inquest Panchnama at exhibit 123 is not

correctly recorded and it is a manipulated document. It has

not taken place between 10 am and 12 noon as mentioned in

the Panchnama. The timing is false. The persons, who are

stated to be present at the time of Panchnama i.e., Abdul

Sattar, who identified the body of Haleema is falsely stated to

be present on 5.3.2002 because the evidence of the

prosecutrix, PW 7 Madina and PW 19 Phiroz (son of Abdul

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Sattar) shows that Abdul Sattar was taken to the spot on

"4.3.2002" and he came back and informed that the relatives

of the prosecutrix were killed. He submitted that Ramtiben,

the woman panch to the inquest panchnama, was also not

present when the panchnama was carried out. Mr.

Venegavkar submitted that in fact such a person did not

exist. Learned Counsel Mr. Venegavkar submitted that

Ramtiben, a female panch, was never traced and therefore,

she could not be examined. However, the prosecution

examined other two panchas to the Inquest panchnama, i.e.,

PW 15 Ramsingh Bariya and second panch PW 73 Somabhai

Chavan. He submitted that there is an inter se contradiction

between the evidence of these two panchas. PW 73 has

stated that he was standing at the bus stop near Kesharpur to

go to Limkheda alongwith Ramsingh Bariya at noon and at

that time, the police came and took them to Kesharpur jungle

to act as panchas. However, PW 15 who is the second

panch has stated that at 10 am, the police approached them

at Limkheda bus stop. He further relied on the evidence of

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PW 34 police officer Amrutsingh Khant where he has stated

that at 9.45 am, he was present alongwith others at the

jungle for Panchnama. Mr. Venegavkar relied on exhibit 244

i.e., a letter sent by Limkheda police dated 4.3.2002 to

Magistrate at Limkheda seeking permission to conduct

inquest. Mr.Venegavkar pointed out that on this letter

(Exhibit 244), there is an endorsement that this letter was

received by the Magistrate on 5.3.2002 at 11.30 am and

thereafter the Magistrate gave permission immediately. He

submitted that if the permission was given by the Magistrate

after 11.30 am, for inquest panchnama then, how the timing

is mentioned in the inquest Panchnama of 10 am to 12 noon

remains an issue. He submitted that this shows that it is a

fabricated document created by Limkheda police.

296 Mr. Venegavkar pointed out one more document

i.e., the letter (Exh.233) written by Circle Police Inspector,

Limkheda dated 10.4.2002. It was addressed to Director of

Gujarat Forensic Science Laboratory (GFSL). By this letter

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signed by the accused No.16, Circle Police Inspector,

Limkheda, the samples of soil, property collected at the time

of the inquest Panchnama Exh. 123, the clothes of the

deceased and other samples including those of the

prosecutrix were sent to forensic laboratory for its opinion

and the report was sent by GFSL on 24.4.2002 to Limkheda

Police Station. Mr. Venegavkar argued that till today, a stand

is taken by Limkheda police that the only body identified by

Abdul Sattar at the time of inquest Panchnama Exhibit 123

was of Haleema. In the inquest Panchnama at Exhibit 123, no

other name is appearing as no other body was identified.

However, in the letter dated 10.4.2002 (Exh.233), the name

of Madina and Ameena is mentioned by the Limkheda police

as persons who were gang raped and murdered and the

complainant Bilkis was raped is also mentioned. Mr.

Venegavkar pointed out that in the report of the GFSL Exh.

238 dated 24.4.2002, the names of Akli, Irfan and Aslam are

mentioned as clothes of these three persons were found at

the time of inquest and were sent. It is further pertinent to

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note that Akli is mentioned in Exh. 238 as wife of Yusuf Musa

Patel. If only Haleema was identified by Abdul Sattar from

where the names of other deceased appeared in the

correspondence of Limkheda police station and GFSL. This

shows that the police of Limkheda Police Station including

accused no.16 who was the investigating officer were

suppressing the names of the deceased and wanted to show

them as unidentified bodies.

297 All these lapses which clearly appear to be

deliberate show that the investigation is not only faulty but it

is downright tainted.

SUBMISSION OF MR. PONDA UNDER SECTIONS 143, 147
148 OF IPC

298 Mr. Ponda submitted that there is a group of 9

witnesses who were examined by the prosecution regarding

the incident of 28th February, 2002 at Randhikpur. He gave

list of the witnesses that is PW 2 Pinjara, PW 4 Salim Ghachi,

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PW 19 Feroz Ghachi, PW 25 Siraj Ghachi, PW 26 Imitiaz

Ghachi, PW 31 Rasul Aziz Umer, PW 45 Sayad Abdul Salam,

PW 46 Salim Abdul Sattar Musa Ghanchi, PW 47 Sattar Majid

Ghanchi. These 9 witnesses were residents of Randhikpur.

299 This group of 9 witnesses was examined by the

prosecution on the incidents that took place on 28.2.2002 at

Randhikpur. On 27.2.2002, the incident of burning of train at

Godhra took place and on the next day, there were riots in

the Districts Godhra and Dahod. All these 9 witnesses were

the residents of Randhikpur, which is near Godhra. The riots

were the after-math of burning of train at Godhra in which

there were large number of Kar Sevaks. Overall, these

witnesses say about the mob of people shouting slogans

against Muslims that "Musalmano ko maro" was moving in

village Randhikpur after 10 am - 10.30 am on 28.2.2002.

Some of the witnesses have stated that it was a mob of 30 to

40 people. Some have stated that it was a mob of 100 to 150

people. Each of the 9 persons have identified some of the

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accused persons; one or two accused persons individually as

the members of the mob. They have identified and attributed

a particular role to these accused persons. Their

identification and the roles attributed to them respectively by

the witnesses are described in a tabular form as follows:

Witness Identification of Role attributed
accused
PW2 Pinjara
PW4 Salim Ghachi
PW19 Feroz Ghachi Identified accused Part of mob
no.8 Pradip
PW25 Siraj Gahchi Identified accused Carrying sword
No.4 Shailesh Bhatt
Identified accused Carrying axe
No.9 Bhikabai
PW26 Imtiyaz Identified accused Holding Rampuri knife
Gahchi No.3 Naresh
Modhiya

Identified accused
No.8 Pradip Modhiya
Pelting stones
PW31 Rasool Umer Identified accused
No.11 Mitesh As being part of mob
Identified accused
No.12 Ramesh
PW45 Sayed Salam Identified Accused Holding petrol can
No.7 Kesar
PW46 Salim Identified accused Shouting slogans kill
Ghanchi no.8 Pradip Modhiya muslims.

PW47                  Sattar Identified   accused Threw fire balls                                        on
Ghanchi nos. 1 2 Jaswant their houses
Govindbhai

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300 The counsel Mr. Ponda made submissions on the

point of conviction under section 143, 147 and 148. He

submitted that accused nos. 1 to 12 are punished under

section 143 of Indian Penal Code for being members of

unlawful assembly. Accused nos. 1 to 12 were also punished

under section 147 of IPC for rioting by forming unlawful

assembly and accused no. 1 only is punished under section

148 of IPC for rioting armed with deadly weapon. It is pointed

out by Mr. Ponda that name of accused nos. 5,6 and 10 were

not taken by any of the witnesses from the group of 9

witnesses in respect of incident dated 28th February, 2002. So

also as per the evidence of these 9 witnesses, accused no. 1

and accused no. 2 were having fire balls, accused no.3 was

holding knife, accused no.4 was carrying sword, accused no.

7 was holding petrol can, accused no. 8 was pelting stones

and shouting slogans, accused no. 9 was armed with axe and

accused nos. 11 and 12 were part of the mob on 28 th

February, 2002 when the witnesses noticed these accused.

All these 9 witnesses did not take the names of all the

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accused persons but each witness took the name of one or

two accused and attributed the role. Thus, it appears that

the conviction under section 143, 147 of accused nos. 1 to 12

and conviction under section 148 of accused no. 1 is given in

respect of not the acts committed on 28 th February, 2002 but

only on 3rd March, 2002. Therefore, none of them is

convicted for conspiracy under section 120B of IPC.

Therefore, the evidence of all these 9 witnesses attributing

particular role of any act on 28 th February, 2002 is in fact not

relevant. We find much merit in this submission and

therefore, we do not consider the conviction under these

sections in respect of their acts of 28th February, 2002.

POLICEMEN ARE ACCUSED, THEREFORE, POLICE
STATEMENTS OUGHT TO BE READ BY THE COURT :

301 Mr. Ponda submitted that some of the statements

of the prosecutrix were recorded by policemen who were

later made accused, hence, the omissions and contradictions

in these police statements could not be proved by the

defence. He pointed out that the statements dated

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13.3.2002 of the prosecutrix was recorded by accused No.

16 and therefore the omissions and contradictions in the said

statements could not be brought on record. Mr. Ponda

submitted that the Court can look into the police statements

of the prosecutrix though the omissions and contradictions

have not been proved. In support of his submissions, he

relied on paragraph 2 of the decision of the Supreme Court in

the case of Abdul Latif Ors. Vs. State of Uttar Pradesh

reported in 1978 Cri.L.J. 639 : AIR 1978 SC 472 . Mr. Ponda

also relied on two judgments of this Court in the case of Dilip

Kumar Tarachand Gandhi Anr. Vs. State of Maharashtra

in Criminal Appeal No. 51 of 1991 and Jalba Vs. State of

Maharashtra in Criminal Appeal No. 3 of 1991.

302 We have gone through the decision in the case of

Abdul Latif (supra) and other rulings of the Division Benches

of the Bombay High Court. In both the decisions of the

Bombay High Court, the Division Benches had relied on

the ratio laid down in the case of Abdul Latif and therefore,

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we consider the ratio laid down by the Supreme Court in

Abdul Latif. In Abdul Latif (supra), the defence preferred an

application for taking additional evidence and for

examining some witnesses who were not examined by the

prosecution. However, the High Court turned down the said

application and the order of the High Court was upheld by

the Supreme Court. While dealing with issue of the

application for taking additional evidence, the issue of

relevancy and the necessity of the recording of additional

evidence and examining additional witnesses which were not

examined by the prosecution, the Supreme Court took pains

to go through the statements of those witnesses. Obviously,

to decide such issue, it is necessary to go through the police

statements of those witnesses. Thus, it is seen that in the

peculiar facts and circumstances of that case, the police

statements were read by the Court and they were considered

to the limited extent of deciding whether the application for

additional evidence or for examining additional witnesses

who were not examined earlier is to be allowed.

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303 In reply, Mr. Venegavkar place reliance on the

decision of a bench of three Judges of the Supreme Court in

the case of V.K. Mishra Ors. Vs. State of Uttarakhand

Ors. reported in (2015) 9 SCC 588. Mr. Venegavkar pointed

out that the decision in the case of Abdul Latif is by a bench

of two Judges whereas the decision in the case of V.K. Mishra

is by a bench of three Judges, hence, he submitted that the

decision in the case of V.K. MIshra would prevail. The

Supreme Court in the case of V.K. Mishra has observed that the

purpose and the manner in which the police statements recorded

under Section 161 of the Code of Criminal Procedure can be

used are indicated in Section 162 of the Code of Criminal

Procedure. The paragraphs 16 and 17 of the decision in the

case of V.K. Mishra read thus:-

" 16. Section 162 Code of Criminal Procedure bars
use of statement of witnesses recorded by the police
except for the limited purpose of contradiction of
such witnesses as indicated there. The statement
made by a witness before the police under Section
161(1)
Code of Criminal Procedure can be used only
for the purpose of contradicting such witness on
what he has stated at the trial as laid down in the

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proviso to Section 162 (1) Code of Criminal
Procedure. The statements under Section 161 Code
of Criminal Procedure recorded during the
investigation are not substantive pieces of evidence
but can be used primarily for the limited purpose:- (i)
of contradicting such witness by an accused under
Section 145 of Evidence Act; (ii) the contradiction of
such witness also by the prosecution but with the
leave of the Court and (iii) the re-examination of the
witness if necessary.

17. Court cannot suo moto make use of statements
to police not proved and ask question with reference
to them which are inconsistent with the testimony of
the witness in the court. The words in Section 162
Code of Criminal Procedure "if duly proved" clearly
show that the record of the statement of witnesses
cannot be admitted in evidence straightway nor can
be looked into but they must be duly proved for the
purpose of contradiction by eliciting admission from
the witness during cross-examination and also during
the cross-examination of the investigating officer.
Statement before the investigating officer can be
used for contradiction but only after strict
compliance with Section 145 of Evidence Act that is
by drawing attention to the parts intended for
contradiction."

[ Emphasis Supplied ]

Mr. Venegavkar pointed out that throughout the

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trial, the accused and their Advocates were present. It

cannot be said that they are helpless just because some of

the policemen who recorded the statements of the

prosecutrix were made accused. The accused could very well

have examined themselves as envisaged under Section 315

of the Code of Criminal Procedure. Section 315 of the Code

of Criminal Procedure reads as under:-

      "315.          Accused persons                     to      be competent
witness:-

(1) Any person accused of an offence before a
Criminal Court shall be a competent witness for the
defence and may give evidence on oath in disproof
of the charges made against him or any person
charged together with him at the same trial;

Provided that -

(a) he shall not be called as a witness except on his
own request in writing;

(b) his failure to give evidence shall not be made the
subject of any comment by any of the parties or the
Court or give rise to any presumption against himself
or any person charged together with him at the
same trial.

(2) Any person against whom proceedings are
instituted in any Criminal Court under section 98, or

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section 107, or section 108, or section 109, or
Section 110, or under Chapter IX or under Part B,
Part C or Part D of Chapter X, may offer himself as a
witness in such proceedings:-

Provided that in proceedings under section
108
, section 109 or section 110, the failure of such
person to give evidence shall not be made the
subject of any comment by any of the parties or the
Court or give rise to any presumption against him or
any other person proceeded against together with
him at the same inquiry. "

Thus, it is seen that the accused were not totally

helpless and they could very well have examined themselves

as witnesses. In view of the decision in the case of V.K.

Mishra, it is clear that Section 162 of the Code of Criminal

Procedure bars use of statements of the witnesses recorded

by the police except for the limited purpose as set out in

Section 162 of the Code of Criminal Procedure. In this view of

the matter, it is not possible for us to look into the statements

of the prosecutrix which were recorded by some of the

accused persons.

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304 Moreover, we have already observed the

circumstances in which there are omissions and

contradictions in the evidence of the prosecutrix and

therefore, discrepancies in the various statements of the

prosecutrix. The accused persons who recorded her

statements were attached to Limkheda Police Station and

they tried to gag the mouth of the prosecutrix and the FIR

and the statements of the prosecutrix were mixed with truth

and falsehood. It was a big job for us to shift through that

evidence on the basis of other oral, documentary or

circumstantial evidence. Her evidence emerged before us

like a collage which we find completely trustworthy.

SECTION 313: vis-a-vis ACCUSED NOS. 13 17.

305 Mr. Ponda submitted that the prosecution has

highlighted the alleged lacunae in the investigation and tried

to make capital of the same. It was necessary for the learned

trial Judge to put questions to that effect to the accused

under Section 313 of the Code of Criminal Procedure. If it is

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the case of the prosecution that why the prosecutrix was not

sent on 4th March, immediately after the recording of the FIR

for medical examination, but was sent on 5th March, the said

question should have been put by the learned trial Judge to

the accused. A point was raised by the prosecution that the

spot panchnama was not conducted immediately i.e. on

4.3.2002 by Limkheda police i.e accused Nos. 13 to 18 and

this point was considered against the accused by the learned

judge in his judgment. So, the trial Judge ought to have

formulated this question as it is a circumstance against the

accused i.e the police who initially investigated the offence

and an opportunity should have been given to the accused to

explain the circumstance. The learned counsel argued that it

was submitted by the prosecution that hurriedly the bodies

were buried and the prosecutrix was not taken for

identification of the dead bodies. However, no question to

that effect was put to the accused persons under Section 313

of Cr.P.C. which ought to have been done. Mr. Ponda

submitted that if the questions are not put to the accused

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about the circumstances which are going against him in the

evidence, then, the accused is denied an opportunity to

explain the said circumstance.

306 Mr.Ponda has argued that it is necessary to put all

the evidence against the accused to him while recording his

statement under section 313 of the CRPC. He argued in the

present case, no proper question was put to the accused who

were policemen about not recording the names of the

perpetrators and the threats given by the police of

administering poisonous injection to the prosecutrix. He

submitted that a general question was put to the accused

about this evidence though it was necessary to put it to the

accused that "you have threatened the prosecutrix and you

have omitted the names of the perpetrators". In support of

his submissions, Mr.Ponda relied on the judgment of the

Supreme Court in the case of Sharad Birdhichand Sarda vs.

State of Maharashtra reported in (1984) 4 SCC 116. The

ratio spells out the object of section 313 of the Code.

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307 Mr.Venegavkar in reply submitted that in section

313, it is not necessary for the Court to put each and every

circumstance to the accused but only the circumstance going

against him in the evidence are to be put to him. He

submitted that even if a particular circumstance is not put to

the accused, then it won't vitiate the trial. This omission is to

be considered a curable irregularity. In support of his

submissions, he relied on the judgment of the Supreme Court

in the case of Paramjeet Singh @ Pamma vs. State of

Uttarakhand reported in AIR 2011 SC 200. In the said

decision, it is observed as under:-

23. An accused can be questioned under Section
313
Cr.P.C. only for the purpose of enabling him
personally to explain any circumstance appearing in
the evidence against him. No matter how weak or
scanty the prosecution evidence is in regard to
certain incriminating material, it is the duty of the
Court to examine the accused and seek his
explanation on incriminating material which has
surfaced against him........

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25. If any appellate Court or revisional court comes
across the fact that the trial Court had not put any
question to an accused, even if it is of a vital nature,
such an omission alone should not result in the
setting aside of the conviction and sentence as an
inevitable consequence. An inadequate examination
cannot be presumed to have caused prejudice. Every
error or omission in compliance of the provisions of
Section 313 Cr. P. C., does not necessarily vitiate trial.
Such errors fall within category of curable
irregularities and the question as to whether the trial
is vitiated, in each case depends upon the degree of
error and upon whether prejudice has been or is likely
to have been caused to accused...............

[Emphasis supplied]

308 We have gone through the statements of the

accused recorded under section 313 of the Code of Criminal

Procedure. The learned trial Judge has put all the

incriminating and relevant evidence appearing in the

evidence to the accused persons. He has put what the

prosecutrix has stated about the threats given to her by the

police i.e., accused No.17 or accused No.13, who were

present at the time of recording of FIR. It is true that they

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were not addressed as "you have stated so" but when the

Judge put the question that the prosecutrix has given

evidence that police (at Limkheda Police Station) have

threatened her and the police did not mention the names of

the perpetrators, it includes the accused persons who are the

police and were present at the time of recording of the FIR at

Limkheda Police Station. The purpose of section 313 is to

point out the incriminating and relevant evidence appearing

in the evidence against the accused with a view to provide

him sufficient opportunity to answer such evidence or to give

any explanation which may go in his favour. Taking into

account the object of section 313 of the Code of Criminal

Procedure, we are of the view that how the question is

worded is immaterial if evidence against the accused is

rightly conveyed to him and pointed out to him with an

opportunity to answer.

309 Section 313 of the Code of Criminal Procedure

pertains to the power of the Court to examine the accused

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though it is a power which is obligatory on the Court. It is a

power coupled with obligation to examine the accused by

putting to the accused the circumstances appearing in the

evidence against him, to enable him to explain the same.

Section 313 reads thus:

"313. Power to examine the accused.

(1) In every inquiry or trial, for the purpose of
enabling the accused personally to explain any
circumstances appearing in the evidence against him,
the Court-

(a) may at any stage, without previously warning the
accused, put such questions to him as the Court
considers necessary;

(b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his
defence, question him generally on the case: Provided
that in a summons- case, where the Court has
dispensed with the personal attendance of the
accused, it may also dispense with his examination
under clause (b).

(2) No oath shall be administered to the accused
when he is examined under sub- section (1).

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(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or
by giving false answers to them.

(4) The answers given by the accused may be taken
into consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into,
or trial for, any other offence which such answers may
tend to show he has committed."

[ Emphasis supplied ]

310 The word 'personally' used in the section shows

that there should be a direct dialogue between the Court and

the accused and the accused has opportunity to speak

directly to the Court and not through his advocate. In the old

Criminal Procedure Code of 1898, under section 342, a similar

provision was available. After recommendation of Law

Commission in its 41st Report, Section 313 was amended to

the present format. In order to appreciate the submissions of

Mr.Ponda, it is necessary to refer to section 342 (2) of old

Code (Act V of 1898) which is as follows:

"(2) The accused shall not render himself liable to

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punishment by refusing to answer such questions, or
by giving false answers to them; but the Court and
the jury (if any) may draw such inference from such
refusal or answers as it thinks just."

[Emphasis placed]

311 Thus, it can be seen that first half portion of old

section 342 (2) of the Code is ad verbatim adopted as

subsection (3) of section 313 of the Code. The portion

highlighted above was removed by the Law Commission in its

report. It was held that to enable the Court to draw such

inference is violative of Article 20 (3) of the Constitution of

India and thus, under the present section, the accused enjoys

full liberty of choice as to whether to answer or refuse to

answer and to keep mum. If he answers, then, that can be

used as evidence against him. However, his silence shall not

go against him. Thus, the section provides an opportunity to

the accused to explain the circumstances without running the

risk of facing cross-examination if he does not want to offer

himself as a witness. This is about the right of the accused.

Thus, there is an obligation on the part of the Court to put

him questions after the examination of the witnesses or the

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questions may be put at any stage also. The Section clearly

states before the accused enters upon his defence, the Court

has to question him "generally" on the case.

312 It is important to note that questions under section

313 are the questions put by the Judge immediately after the

evidence of the prosecution is concluded but before the

accused enters upon his defence. Thereafter, arguments of

both the prosecution and the defence are heard. Thus, the

Judge is not aware of the defence taken by the accused. So

also, the submissions which are going to be advanced by the

prosecution. After completion of the submissions of both the

sides, the Judge gets more clues and different insight. So

also the inputs disclosing certain facts and leading to a

particular direction to his thought in respect of appreciation

of evidence and on the basis of that, he arrives at a

conclusion. Thus, the reasoning, inference and conclusion

which manifest in the judgment is never restricted to only

circumstances appearing in the evidence against the accused

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but it necessarily includes points raised by both the parties in

arguments. While putting questions under section 313, the

Judge has to consider a circumstance against the accused

which manifests in the evidence before him and it is not at all

contemplated by the Section that any inference, perception

or conclusion appearing from the evidence has also to be put

to the accused. This is an answer to the submissions of Mr.

Ponda.

313 According to Mr. Ponda, not sending the

prosecutrix immediately for medical examination, not taking

her to the spot and asking her to identify the dead bodies, so

also hurriedly burying the dead bodies are the circumstances

taken into account by the learned trial Judge and also argued

by the prosecution before us. However, the questions were

not put to the accused persons to that effect. We do agree

partially with Mr.Ponda that these are the circumstances

going against the accused. However, these are not the

circumstances "appearing in the evidence" and hence, as

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per the Section, as they do not appear in the evidence, it

need not be put to the accused under Section 313 Cr. P. C.

Section 3 of the Evidence Act reads thus:....

"3. ...

"Evidence" .-- " Evidence" means and includes--
(1) all statements which the Court permits or requires
to be made before it by witnesses, in relation to
matters of fact under inquiry, such statements are
called oral evidence;

(2) all documents including electronic records
produced for the inspection of the Court, such
documents are called documentary evidence."

314 Under 313, it is obligatory on the part of the Court

to put those circumstances against the accused which are

appearing in the evidence and which are positively stated in

the oral evidence and brought by way of documentary

evidence on record. The circumstances which Mr.Ponda has

pointed out are not appearing in evidence as such but they

are the inferences drawn by the learned Judge after

considering the entire evidence, defence and the arguments.

The Legislature has used the words "appearing in the

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evidence". The meaning of the word "appear" is as under:

"to appear"

As per Black's Law Dictionary, 'appearing' means
prima facie material before the Court. The word
appearing is commonly used in two senses. In one
sense, it means manifest, obvious or proved and in
other, it means seems or to come into view or
become visible.

Oxford dictionary meaning of the word 'seem' is 'to
give an impression of being'.

The Legislature in its wisdom has not used the

terminology to enable the accused to explain "every

circumstance in the evidence against him" and therefore, the

words "appearing in evidence" are to be given due

weightage. The words used are question him "generally" on

the case which has been done in the present case.

315 Thus, the word 'appearance' cannot be attributed

meaning "to analyze or scrutinize the matter". It carries a

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flavour of 'prima facie'. It is made clear in the 41 st report of

the Law Commission while amending section 342 of the old

Code of Criminal Procedure that the section is not to be read

as authorizing an inquisitorial interrogation of the accused

which is not its object at all. Putting questions which are

outcome of scrutiny and inferences is likely to overstep into

enquiry by the Court and, therefore, the Court has to be

careful while putting the questions to the accused restricting

itself to the circumstances "appearing in the evidence" which

are against him. As stated earlier, the words used in Section

313 of the Code of Criminal Procedure are that the accused

should be questioned "generally" on the case, which has

been done in the present case. Hence, we find no merit in

this submission.

ENHANCEMENT OF SENTENCE

316 While deciding the appeal by the State for

enhancement of sentence, we have to consider the

sentencing policy of capital punishment.

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317 The State has preferred Criminal Appeal No.271 of

2011 praying that the sentence of life imprisonment imposed

on accused Nos. 1, 2 and 4 be enhanced to death. It is to be

noted that appeal for enhancement of sentence has not been

made in relation to any of the other accused. As far as

accused Nos. 1, 2 and 4 are concerned, both the learned

Prosecutors have vehemently argued that this is not a case

where leniency can be shown but it is a rarest of the rare

case. As far as the offence under Section 302 is concerned,

total 14 persons were killed. They argued that at one time,

14 helpless persons including children and women were

brutally murdered by these accused. While committing this

inhuman act, three women were raped i.e Halima, Shamim

and the prosecutrix. This shows that the accused had no

regard for law and order and were perverse. These murders

have shocked the conscience of the society and is a

gruesome offence which is to be dealt with capital

punishment. In order to substantiate its appeal for

enhancement of the sentence, the learned Counsel relied on

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the judgments in Sevaka Perumal anr. vs. State of Tamil

Nadu reported in (1991) 3 SCC 471; Dhananjoy Chatterjee

alias Dhana vs. State of West Bengal reported in (1994) 2

SCC 220 and Ramnaresh Ors. vs. State of Chhattisgarh

reported in (2012) 4 SCC 257.

318 Mr.Ponda in answer to the submissions made by

the State, has argued that this does not fit in the category of

rarest of rare case. There is no direct evidence against

accused persons Nos. 1 and 2 of either having murdered any

of these 14 persons or having raped Halima or Shamim. As

far as accused No. 4 is concerned, there is no evidence to

show he raped any of ladies including the prosecutrix. He

argued that it was not a pre-meditated murder or rape and it

is not an offence against public morality and hence, he

submitted that this is not a fit case to enhance the sentence.

319 14 persons were killed amongst them some were

small children and some were women. We do agree that it is

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a rare massacre manifesting ugly animosity and hostility.

Before commenting on the enhancement of sentence in the

present case, let us advert to the cases relied on by the

prosecutors.

320 In the case of Sevaka Perumal (supra), the

accused were involved in the purchase and sale of ganja.

They induced and enticed innocent boys from affluent

families and took them to distant places. The boys were

made to bring jewellery and valuables. After taking the

money and the valuables, they killed the boys. They

committed four murders in the same manner. The Sessions

Court convicted the accused persons and sentenced them to

death. The High Court confirmed the sentence and therefore,

the appeals were preferred before the Supreme Court. The

Supreme Court in the said judgment, referred the case of

Mahesh vs. State of M.P. and reproduced the ratio laid down

in Mahesh vs. State of M.P. (supra) as follows:

"It will be a mockery of justice to permit the accused to

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escape the extreme penalty of law when faced with
such evidence and such cruel acts. To give the lesser
punishment for the accused would be to render the
justicing system of the country suspect. The common
man will lose faith in courts. In such cases, he
understands and appreciates the language of
deterrence more than the reformative jargon."

321 In the case of Dhananjoy Chatterjee (supra), an

18 year old girl was brutally raped and killed by a guard of

the society. Two days prior to the incident, she had

complained to her mother against the guard that he had

been teasing her on her way to and fro from school and also

asked her to accompany him to a cinema hall to watch a

movie. After her complaint, action was taken by the

supervisor of the accused and he was transferred to some

other apartment as a security guard. However, on that day,

the accused did not attend his new duty but came to the

society of the deceased and did the duty at the society of the

deceased and at around 5.20pm, when her mother went to

the temple, he entered the flat on some pretext, raped and

murdered her. His movements in and out of the flat were

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witnessed by the other guard and the supervisor and

thereafter he was caught. In the said case, the Supreme

Court has held thus:

"... If the security guards behave in this manner,
who will guard the guards? The faith of the society
by such a barbaric act of the guard, gets totally
shaken and its cry for justice becomes loud and
clear."

322 In the case of Ramnaresh Ors. vs. State of

Chhatisgarh (supra), four persons who were guests of the

neighbour, raped the deceased in her house and she was

killed. In the said case, the Supreme Court has elaborately

discussed the mitigating and aggravating circumstances

which are to be taken into account by the Judge while

imposing the capital punishment to the accused. It also laid

down the principles for consideration of the Judges while

granting capital sentence. It held that "it is unfortunate but a

hard fact that all these accused have committed a heinous

and inhumane crime for satisfaction of their lust but it cannot

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be held with certainty that this case falls in the rarest of rare

cases" and the Supreme court commuted the sentence of

death to that of life imprisonment i.e., 21 years and partially

allowed the appeals.

323 The submission of the prosecution is that it is not

only one or two murders but it is a case of mass murders

where the women were ravished and raped and it has

shocked the social conscience. In the case of Dhananjoy

Chatterjee (supra), the culprit was a security guard and he

had a history of making sexually coloured remarks towards

the victim girl. Thus, he had lust for the victim from the

beginning and though he was removed and given the duty of

guard in another building, he disobeyed his superintendent

and stayed there which shows that he had planned to rape

the girl and it was a cold blooded murder. In the case of

Sevaka Perumal (supra), there was extortion and the

accused had murdered four boys in a period of 5 years by

using the same modus operandi. This shows that they were

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hardened criminals who repeated the act.

In the case of Ramnaresh Ors. (supra), four

persons who were drunk entered the house of the deceased

at night and they raped her one by one, which resulted in her

death, however, it is to be noted that the Supreme Court in

this case held that it did not fall in category of rarest of rare,

so as to award the death sentence.

324 On comparing the present case with the facts of

the case of Sevaka Perumal (supra) and Dhananjoy

Chatterjee (supra), it can be safely said that there is no

repetition of crime in the present case so also the accused

before this Court are not history-sheeters or hard-core

criminals. From the clinching evidence placed before us and

discussed earlier, we are convinced that all these accused

persons in a mob on account of the Godhra incident were

moving in search of muslims. They were boiling with revenge.

It was an unlawful assembly of the 12 accused and some

more unidentified persons. As soon as they saw the muslims,

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they pounced upon them, assaulted them and also raped

some women.

325 We have carefully gone through the elaborate

discussion of aggravated and mitigating circumstances and

the principles laid down by the Supreme Court in Ramnaresh

Ors. (supra). We do agree that the crime is uncommon

and a large number of persons from the muslim community

were murdered, however, the sentencing policy is also

required to be balanced on the scale of proportionality.

326 Thus, considering the facts of this case, though

such crime is not justifiable and is shunned, we are of the

view that it is not a case wherein the sentence imposed

would be completely inadequate and would not meet the

ends of justice especially looking to the fact that though the

prosecutrix was present at the scene of the incident, she

does not state that accused Nos. 1 and 2 murdered any of

the persons in her group, nor does she say that accused Nos.

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1 and 2 raped Halima or Shamim. As far as accused No. 4 is

concerned, except for attributing role of murder of Saleha to

him, no other role is attributed to him either of rape on

anyone or murder of anyone. We also cannot be unmindful of

the fact that the incident occurred in 2002, fifteen years have

elapsed since then. These accused have been in custody all

this while. Looking to this fact, after a gap of 15 years, we

are not inclined to enhance the sentence.

327 The Appeal for enhancement of sentence is thus

dismissed.

APPEAL AGAINST ACQUITTAL

328 Accused Nos.1 to 12 were prosecuted for the

offences punishable under sections 120B, 143, 147, 148, 302

read with 149 /34, 376(2)(e) (g) 376(2)(g) of the Indian

Penal Code. Accused Nos. 13 to 20 were prosecuted for the

offences under Sections 120B, 201 r/w 34 of IPC and 217

218 r/w 34 of IPC. The trial Court by its judgment and order

dated 21.1.2008 convicted accused Nos.1 to 12 and 17 under

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various sections as under:

(i) accused Nos.1 to 12 are convicted for the offence

punishable under sections 302 r/w 149 and sentenced

to suffer R.I. for life and fine.

(ii) accused Nos.1 to 12 are convicted for offence of

committing rape under Sections 376 (2)(e) (g) and

sentenced to life and fine;

(iii) accused Nos.1 to 12 are also convicted under

section 376(2)(g) and sentenced to 10 years

imprisonment and fine.

(iv) accused Nos.1 to 12 are also held guilty under

section 147 IPC and also under section 143 of Indian

Penal Code and they are sentenced to suffer R.I. for 2

years and six months respectively.

(v) accused No.1 is held guilty under section 148 of

the IPC and sentenced to suffer R.I. for 3 years.

(vi) accused 17 who is dead was held guilty under

section 217 and 218 and sentenced to suffer R.I for two

years.

329 Mr. Venegavkar submitted that accused Nos.13 to

18 are the police officers from Limkheda police station, who

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have played different roles in the initial investigation. The

investigation was found defective and therefore, the Supreme

Court by its order dated 16.12.2003 in Miscellaneous

Criminal Application No.8850 of 2003 in W.P. No. 118 of 2003

(Exh. 61) transferred the investigation to the CBI. The CBI

took over the investigation on 1.1.2004 and after completion

of the investigation, filed chargesheet on 19.4.2004 before

CJM Ahmedabad. At the time of investigation, the CBI found

that the concerned police personnel of Limkheda police

station who were involved in the initial investigation were not

only negligent, but deliberately tried to screen the offenders

and have also caused disappearance of the evidence of the

offence and gave false information to screen the offenders.

Therefore, accused Nos.13 to 18 were prosecuted. Accused

Nos.19 and 20 are the Doctors, who admittedly carried out

the post-mortem on 7 dead bodies at the time of inquest

panchanama on 5.3.2002. Accused Nos. 19 20 came

across the 7 bodies. Though, it was apparent that the dead

bodies were victims of assault and violence, and whitish

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liquid was seen coming out of the private parts of some of the

female dead bodies, accused Nos. 19 20 did not collect the

necessary samples; did not conduct the post-mortem as

required under law and have therefore committed the offence

under sections 201, 217 and 218 of the Indian Penal Code.

Hence, these appeals.

330 Mr. Venegavkar has submitted that the learned

Judge has erred in acquitting all these accused. He argued

that the Trial Court has discussed the evidence against the

accused Nos.13 to 16 and accused Nos.18 to 20 only in

paragraphs 434, 435 and 436 of the judgment. The reasons

given for acquittal are erroneous in view of the fact that

there is sufficient evidence against all the accused to convict

them under sections 217, 218, 120B and 201 of the Indian

Penal Code. He further submitted that when the role of each

accused is specifically brought on record by the prosecution,

the Trial Court ought to have considered it and should have

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convicted all the accused.

331 The main emphasis is on acquittal of accused

nos.13 to 20. The accused Nos.13 to 20 were all acquitted

under Section 120B of IPC. They were also acquitted under

Section 201 of the Indian Penal Code i.e., causing

disappearance of evidence of offence or giving false

information to screen the offenders; accused Nos.13 to 16

and accused Nos.18 to 20 are also acquitted from the

offences under sections 217 218 r/w 34 of the Indian Penal

Code. In respect of accused No.17, appeal against acquittal

is filed as he is acquitted under section 201 of the Indian

Penal Code though he is convicted under sections 217 and

218 of the Indian Penal Code. However, accused No.17 has

expired pending appeal, so, the said appeal abates against

him.

332 As far as acquittal under section 120-B of IPC is

concerned, PW 2 Panjara is examined by the prosecution on

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the point of conspiracy and he has stated that on 28 th

February, 2002 he heard shouts from the mob against

muslims. He remained in the house on the loft for few hours

and thereafter he came out of the house at around 1 p.m.

and saw people assembled at the shop of accused no. 10

Soni. There he noticed two police, i.e., accused no. 13

Narpatsingh Patel and accused no.14 Idris Saiyed. So he

went towards them for help. However, they told him to run

away. So he went away. At that time he noticed all the

accused persons who had assembled in the shop were saying

that muslims were to be finished. Mr. Ponda has submitted

that his evidence is not reliable. The learned trial Judge has

not believed the evidence of PW 2 Pinjara on the point of he

meeting accused no.14 Saiyed. The learned counsel Mr.

Ponda relied on the evidence of DW 4 Mansinghbhai Kishori

who is a police officer from Fatehpura police station where

accused no.14 Idris Saiyed was on duty on 28 th February,

2002. He relied on Exhibit 76 the station diary entry which is

proved through DW 4 Mansinghbhai Kishori wherein it is

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mentioned that accused no. 14 was directed to go to

Limkheda for duty and so in a jeep he left Fatehpura police

station at 1.30 p.m. The learned counsel pointed out that in

his evidence DW 4 Mansinghbhai Kishori has stated that the

distance between Fatehpura police station and Limkheda

Police Station was nearly 80 kms. Thus, it was not possible

for him to reach Limkheda at 1 p.m. as deposed by PW 2

Pinjara that he had seen accused no. 14 at Limkheda at 1.00

p.m.. We find some merit in this submission.

333 We have considered the evidence of PW 2 Pinjara.

PW 2 is examined by the prosecution only on the point of

conspiracy. Besides PW 2 no other witness is examined on

the point of conspiracy. Our attention is drawn to the

judgment of the trial Court wherein accused nos. 1 to 18 are

not convicted for the offence of conspiracy under section

120B of Indian Penal Code. There is no appeal by the State

challenging this acquittal of the accused from the offence of

conspiracy under section 120B of the Indian Penal Code.

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Considering this position, we do not take into account the

evidence of PW 2 who is a witness against accused no. 14 on

the point of conspiracy as well as against all the accused.

334 In any event everything appears to have taken

place on the spur of the moment. There is no reliable

evidence that on 28.2.2002, there was any conspiracy to

murder or rape muslims which can also be seen from the fact

that on 28.2.2002 no physical harm was caused to any

muslim in Randhikpur.

335 Mr. Venegavkar submitted that accused No.13

Narpatsingh Patel took Hussain and PW8 Saddam, without

yadi, to Limkheda Community Health Centre. He abandoned

Saddam and Hussain at the hospital. PW 9 Dr. Mahto has

specifically stated that Narpatsingh was supposed to come

there to take back the children and he had dropped them

without yadi. This showed that accused No. 13 wanted the

evidence to disappear that Saddam was victim of assault. Mr.

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Venegavkar further argued that accused No. 13 Narpatsingh

was present on 5.3.2002 alongwith accused No.14 Saiyed

when the inquest panchnama Exh. 123 and spot panchnama

Exh. 124 were drawn. They purposely did not protect the

dead bodies due to which some of the bodies went missing

and Saleha's body and body of Shamim's new born baby

were lost. Further, he submitted that accused Nos.13, 14

and 16 were present at the time of drawing the inquest

panchanama Exh. 123. Mr. Venegavkar relied on the

evidence of PW 34 Amrutsingh Khant, who has stated in

paragraph 4 of his evidence that accused Nos.13 and 14

dictated the inquest panchanama i.e., exhibit 123 which Mr.

Venegavkar submitted is a defective and a manipulated

document. Mr. Venegavkar further drew our attention to

paragraph 4 of the evidence of PW 34 Amrutsingh, wherein,

he has stated that he wrote the inquest panchnama at the

instance of accused Nos. 13, 14 and 16 i.e Narpatsingh, Idris

Abdul Saiyed and Ramsingh Bhabor.

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336 Mr. Venegavkar further pointed out that accused

No. 15 Bhikabhai Patel was the PSI in charge of the

Limkheda police station when the FIR (Exh. 56) was prepared

which is stated by DW 5 Jaisingh in paragraph 3 of his

evidence. Mr. Venegavkar pointed out that DW5 Jaisinghbhai

Patel in the crossexamination has deposed that he at the

instance of accused No.15, tore off the blank pages from the

FIR book i.e., article 74. Mr. Venegavkar submitted that

accused No.16 Bhabhor was present during the inquest

panchanama exhibit 123. He was in charge of the

investigation. He did not investigate as per the contents of

the statement of the prosecutrix dated 6.3.2002 (Exhibit 277)

which was sent by PW 18 District Magistrate Jayanti Ravi to

the police station. He did not seize the photographs and the

negatives of the dead bodies (Exh.59/1 to 59/17) under

seizure panchanama. He further submitted that the closure

report of A summary was manipulated. This was done at the

instance of accused No. 18 R.S. Bhagore Accused No.18,

Dy.S.P., Limkheda, was supposed to supervise investigation

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after accused No.16 Ramsingh Bhabor did not perform his

duty but he purposely filed 'A' summary. He submitted it was

totally faulty investigation. Thus, the role of all these police

personnel was not properly considered by the Trial Court

though the offence under sections 201, 217 and 218 was

made out.

337 Mr.Ponda, the learned Counsel has submitted that

there is no evidence against the accused, who are acquitted

from the charges by the trial Court. He submitted that the

visit of the police of Limkheda police station to the spot on

4.3.2002 is not proved; so also Saleha's body is not found

and her death is not established by the prosecution. The

effect of delay in drawing the inquest panchanama exhibit

123 is discussed by the learned Judge. However, no specific

question was put by the learned Judge under Section 313 of

Cr.P.C. asking explanation on delay. The learned Counsel

argued that it is necessary for the Court to put specific

questions u/s 313 on each and every circumstance which is

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against the accused and in the event of failure to put such

questions, the benefit is to be given to the accused as the

circumstance remains unexplained. As far as this

submission regarding not putting questions under Section

313 of Cr.P.C. Is concerned, we have already dealt with the

same in detail in earlier paras of this judgment and found no

merit in this contention.

338 Mr. Ponda further pointed out that the learned

trial Court has disbelieved the evidence of PW 2 Pinjara, who

has deposed against accused No.13 accused No.14. There

is no evidence against accused Nos.13 and 14 and other

accused and therefore, their acquittal from the respective

charges is justified. He argued that the ingredients of

sections 217 and 218 so also section 201 are not proved by

the prosecution and so the requirement of law is not fulfilled.

339 Mr. Ponda submitted that it was argued by the

prosecution that PW 8 Saddam was taken to Limkheda CHC

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by accused No.13 Narpatsingh without yadi and he did not

bring him back. The learned Counsel after referring to para

21 of the examination in chief of PW9 Dr.Mahato submitted

that he did not identify Narpatsingh. He further argued that

there is no charge of looting or rioting, so evidence to that

effect is irrelevant. Admittedly accused no.13 Narpatsingh

was attached to Limkheda Police Station. It was not his case

that there was any other policeman in that police station of

the same name, hence, it has to be assumed that he took

Saddam to CHC Limkheda.

340 Admittedly accused no. 13 Narpatsingh Patel,

accused no. 14-Saiyed, accused no. 15- Bhikabhai Patel,

accused no. 16-Ramsingh Bhabhor, accused no. 17-

Somabhai, accused no. 18-Ramabhai Bhagora were the police

personnel attached to Limkheda Police Station at the time of

the incident, i.e., on 3rd March, 2002 and thereafter when the

investigation was conducted by Limkheda Police Station, PW-

19 Arun Kumar Prasad and PW-20 Sangeeta Prasad were the

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doctors who performed postmortem on 7 dead bodies of the

victims on 5th March, 2002 near Kesharpur jungle at ravine

namely "Shiv Kottar". Their respective roles in the

investigation has come on record and cannot be disowned by

the defence. Thus, from the documentary evidence as well

as oral evidence of the witnesses, whether the duties

performed or not performed by these accused persons

resulted in illegality fulfilling the ingredients of the offence for

which they were charged respectively and whether the

commission or omission amounts to an offence especially

under Sections 201, 217 and 218 of IPC is required to be

scrutinized.

341 Section 217 and 218 of IPC read as under:-

217. Public servant disobeying direction of law
with intent to save person from punishment or
property from forfeiture.--Whoever, being a
public servant, knowingly disobeys any direction of
the law as to the way in which he is to conduct
himself as such public servant, intending thereby to
save, or knowing it to be likely that he will thereby
save, any person from legal punishment, or subject
him to a less punishment than that to which he is

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liable, or with intent to save, or knowing that he is
likely thereby to save, any property from forfeiture or
any charge to which it is liable by law, shall be
punished with imprisonment of either description for
a term which may extend to two years, or with fine,
or with both.

218. Public servant framing incorrect record or
writing with intent to save person from
punishment or property from forfeiture.--
Whoever, being a public servant, and being as such
public servant, charged with the preparation of any
record or other writing, frames that record or writing
in a manner which he knows to be incorrect, with
intent to cause, or knowing it to be likely that he will
thereby cause, loss or injury to the public or to any
person, or with intent thereby to save, or knowing it
to be likely that he will thereby save, any person
from legal punishment, or with intent to save, or
knowing that he is likely thereby to save, any
property from forfeiture or other charge to which it is
liable by law, shall be punished with imprisonment of
either description for a term which may extend to
three years, or with fine, or with both.

342 The recording of the FIR - Exh. 56 is the starting

point of this investigation. The prosecutrix PW-1 was taken to

Limkheda police station on 4th March, 2002 and there she told

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about the incident of murder and rape. Her evidence along

with the evidence of other witnesses is discussed extensively

earlier. There are manipulations. Briefly stated her evidence

shows that though she disclosed the names of the offenders,

the police of Limkheda Police Station asked her why she

disclosed the names of the offenders and the facts

concerning rape on her and if she would be taken to hospital

for examination in that regard, she would be given poisonous

injection at the hospital, so she was frightened. She has

stated in her evidence that whatever was recorded by the

police was not read over to her. She did not know what

record was made and the police forcibly obtained her thumb

impression on the record maintained by them. This evidence

can be assessed on the basis of other circumstantial

evidence. FIR Exhibit 56 is to be looked into. The names of

the persons who moved with the prosecutrix were taken,

however, name of father Abdul Sattar was wrongly mentioned

but other names were rightly mentioned. It is further

mentioned that mob of 500 persons carrying sticks came

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abusing. They tore the clothes of the ladies Mumtaz and

Shamim and committed rape on them. However, she was left

out because she informed that she was pregnant and when

she regained consciousness, she saw the dead bodies of her

relatives and she was frightened, so she went up the hill and

hid there. She stayed there for entire day and night and then

she came down. She drank water at hand pump. She saw

one jeep on the road and went to the jeep where she met an

officer (DW 3) and told the incident to him. The officer took

her to Limkheda Police Station.

343 Her statements which she gave before CBI and her

statement Exhibit 277 dated 6th March, 2002, disclosed a

different story. The contradictions and omissions which are

brought on record from her statements dated 9 th January,

2004, 13th February, 2004, 27th March, 2004 recorded by CBI

which are respectively at Exhibit 434(Colly.), 439 (Colly.) and

Exhibit 393 (colly.) are considered. These omissions and

contradictions are insignificant when examined at the time of

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submissions of learned defence counsel and learned

Prosecutor. Thus, her substantive evidence is more or less

consistent in all the material particulars with her previous

statements recorded by CBI and her statement Exhibit 277

recorded on 6.3.2002 which can be used for the purpose of

corroboration as it is at or about the time of the incident.

344 The lapses in the investigation are as follows:

(i) Accused No. 17, who attended the

prosecutrix, while recording the FIR did not mention the

names of accused persons disclosed by her, which she

disclosed subsequently in her statement Exhibit 277

and the statements before CBI. At that time, PW 15

Bhikabhai Patel was in charge of the police station.

(ii) Though according to PW 35, Yadi (Exh. 203) was

prepared on 4.3.2002 by Limkheda Police Station for

sending the prosecutrix for medical examination, she

was not sent on 4th but she was sent on 5.3.2002 for

medical examination so as to cause disappearance of

evidence.

(iii) When the prosecutrix was sent for medical

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examination on 7th March, 2002, after recording of her

statement Exh. 277 by PW-23 Executive Magistrate

Govindbhai, yadi was not sent. Yadi was sent after

about 10 days though PW-17 Dr. Rohini Katti has asked

for yadi on the same day i.e. 7th March.

(iv) FIR was recorded on 4.3.2002 at 10.45 a.m. which

disclosed cognizable offence of rape and murder and

therefore it was registered under sections 376 and 302

of Indian Penal Code. So, immediate drawing of spot

and inquest panchanamas was necessary. The police

visited the spot on 4th March, 2002 in the evening,

however, on that day, they did not draw spot or inquest

panchanama though they found dead bodies.

(v) The prosecutrix was not taken to show the spot or

to identify the bodies.

(vi) Incorrect inquest panchnama was drawn. The

evidence of PW 34 shows that he drew the panchnama

at the instance of accused No. 16 and accused No. 13

and 14 dictated the inquest panchnama Exh. 123.

(vii) It was the duty of the investigating officer and

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police personnel to take care by appointing some

person or constable by way of keeping guard or for

security to protect the dead bodies which were lying on

the spot which was open and unprotected place,

however, it was not done.

(viii) Photograph of body of Saleha was taken on 4 th

March, 2002 , however, her body was missing on 5 th

March, 2002.

(ix) Postmortem was conducted in deliberate haste

without examining and noting the necessary facts with a

view to suppress the material evidence on the point of

Sections 376 and 302 and the bodies were hurriedly

buried with sacks full of salt so that they would

decompose faster and the evidence would disappear.

(x) No blood samples, nail clippings, hair sample etc

and especially vaginal swabs were collected by accused

Nos. 19 and 20 during postmortem though the FIR

showed that it was a case of rape.

(xi) Why bodies were not handed over to the relatives

when Abdul Sattar had admittedly identified body of

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Haleema as mother of the prosecutrix.

(xii) Letter Exh. 233 dated 10.4.2002 by accused No.

16 Circle Police Inspector Limkheda to Forensic Science

Laboratory shows that the accused gangraped

Madinaben and Aminben and killed them. From where

these names surfaced when according to the defence by

then only one body was identified i.e of Halima. This

shows the accused Nos. 13 to 18 were trying to

suppress facts, however, truth has this uncanny way of

surfacing.

(xiii) GFSL report Exhibit 238 dated 24.4.2002

addressed by Forensic Science Laboratory to Circle

Inspector Limkheda (accused No. 16) shows the names

of identification of three dead bodies i.e Akliben w/o.

Yusuf Musa Patel, Aslam Abdul aged 13 years and Irfan

Abdul, when as per the police, the dead bodies were not

identified at all except that of Haleema. This also

shows police were suppressing facts.

(xiv) Police did not seize and preserve all the articles of

the deceased to facilitate their identification later on to

purposely weaken the case.

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(xv) FIR was ante-timed.

(xvi) Police did not arrest accused though it was a

cognizable offence.

(xvii) Suppression of material facts by police accused

and accused nos. 19 and 20 to screen the offenders.

345 We now proceed to chronologically assess the role

played by the accused and the investigation:

346 Exhibit 56: Evidence of PW 35 Ranjeetsingh Patel

police constable, DW1 Budhsingh Patel Writer Constable, DW

5 Jaisinghbhai Patel head constable and DW 6 Chandubhai

Tariyad police constable, is to be looked into alongwith the

evidence of the prosecutrix. She has stated that all the

contents in Exhibit 56 are not true and there is a suppression

of material facts. The names of the assailants were disclosed

by her. However, they were not mentioned in the FIR

deliberately by the persons, who recorded the FIR and her

thumb impression was obtained forcibly. Not only that but

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she was threatened that if she disclosed the names of the

culprits, then she would be taken to hospital and would be

given a poisonous injection.

347 Thus, there is no mention in the FIR that the

prosecutrix was raped. There is no mention of a single name

of any of the assailants in the FIR. False fabricated facts are

stated that a mob of 500 persons attacked the prosecutrix

and her group. PW 35 Ranjeetsingh Patel, DW 1 Budhsingh,

DW 5 Jaisinghbhai Patel DW 6 Chandubhai Tariyad have all

stated confirmed that a lady by name Bilkis Banoo arrived

at the Limkheda police station on 4.3.2002 to give complaint

and her complaint was recorded i.e., Exhibit 56 which was

recorded by accused No.17 Somabhai Koyabhai Gori.

348 PW 35 Ranjeetsingh Patel in brief has stated that

the contents of the FIR were stated to accused No. 17

Somabhai by the prosecutrix that a mob of 500 people

attacked them and raped her relatives and killed them. He

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said that he was present at the time of recording of the FIR.

He identified the complaint Exh. 56. He also identified the

signature of accused No.17 Somabhai on Exh. 56. He has

stated that the handwriting is of one Budhsingh (DW 1). He

further submitted that the yadi of the prosecutrix for medical

examination was prepared and he identified the said yadi at

Exhibit 203 dated 4.3.2002 bearing handwriting and

signature of accused No.17 Somabhai Gori. Further, he has

stated that on 5.3.2002, he alongwith accused No.13

Narpatsingh, accused No.14 Idris Saiyed and accused No.16

Ramsingh Bhabhor alongwith PW 34 Amrutsingh Khant and

one Police Head Constable Mangalsingh left for Kesharpur

jungle. Seven corpses were found in the jungle. As per his

evidence, accused No.13 Narpatsingh dictated the inquest

panchanama which was scribed by PW 34 Amrutsingh. He

further stated that accused No.19 Dr.Arunkumar Ramkishan

Prasad and accused No.20 Dr.Sangeeta Arunkumar Prasad

conducted the post-mortem on the spot. He has further

stated that a pit was dug by labourers and all the corpses

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were buried therein. He prepared the case diary entry at the

instance of accused No.13 Narpatsingh which bears the

signature of accused No.13 Narpatsingh at the end which is

marked Exhibit 204. He has further submitted that in all six

garments were collected from the seven corpses. So he

collected those clothes and came to Limkheda police station

and handed over the same to one PSO Jaisingh at Limkheda

police station, who under panchanama, seized those clothes.

The said panchanama dated 5.3.2002 is marked at exhibit

205 and the said entry in the muddemal register is marked at

exhibit 206. He identified the clothes, i.e., sky blue colour

saree with label and seal marked Article 25 collectively,

maroon brown colour petticoat with seal marked Article 26

collectively, olive green trousers with seal and wrapper and

envelope marked Exhibit 27; one piece of bush shirt with

label, envelope marked Exhibit 28; frock with floral design

with label, envelope, seal marked Article 29; a piece of

striped bush shirt with envelope, seal, wrapper marked at

article 30 collectively.

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349 PW 35 Ranjeetsingh Patel was contradicted by the

learned Prosecutor on the basis of the statement dated

6.2.2004 recorded by CBI. These omissions are in relation to

what was stated by the prosecutrix. These omissions are

portion marked A and omission about taking photographs of

7 dead bodies by PW 10 Soni on 5.3.2002 is marked B in the

said statement. These omissions have been proved. Though

these omissions cannot be considered in the evidence of the

witnesses, they are useful to assess the credit of the witness.

350 PW 34 Amruthsingh Khant was a police constable

and was on patrol duty at Randhikpur on 4.3.2002 alongwith

CPI Bhabhor accused No.16 and other police officers i.e.,

including accused No.13 Narpatsingh and accused No.14 Idris

Abdul Saiyed. They all went to Panivela Kesharpur area. PW

34 has stated that the inquest was conducted on 5.3.2002 in

the Kesharpur jungle. Accused No.14 drew inquest

panchanama at exhibit 123 and accused No.19 Dr.Arunkumar

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Ramkishan Prasad and accused No.20 Dr.Sangeeta

Arunkumar Prasad conducted the post-mortem at the site.

He wrote the inquest panchanama at the instance of accused

No.16 Bhabhor, CPI and accused No.14 Saiyed PSI and also

accused No.13 Narpatsingh. According to his evidence,

accused No.14 Saiyed and accused No.13 Narpatsingh

dictated the inquest panchanama at exhibit 123.

351 Regarding corpses, Amrutsingh stated that there

were 7 corpses i.e of 4 ladies, 2 boys and 1 girl. On

identification of corpses, PW 34 Amrutsingh Khant has stated

that one Abdul Sattar had come to the spot, identified one

corpse i.e., of Aminaben and after conducting the post-

mortem by accused No.19 and 20, the corpses were buried at

the site. He has stated that he got the labourers at the

instance of accused No.13 Narpatsing. What is most

important to note is that he stated that nothing from the

corpses was preserved for the purpose of establishing their

identity. This shows they did not want the bodies to be

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identified. This shows that accused Nos. 13, 14 and 16 who

were present at the spot were trying to cause disappearance

of evidence of offences and had prepared incorrect record

and did not conduct themselves properly as public servant

with intent to save accused Nos. 1 to 12.

352 It has also come on record in the evidence of PW

35 Ranjitsingh Patel that Yadi (Exhibit 203) dated 4.3.2002

was prepared regarding sending the prosecutrix for medical

examination. Though the Yadi is dated 4.3.2002 the

prosecutrix was sent for medical examination to CHC

Limkheda on 5.3.2002. It is clear from the evidence of PW 9

Dr. Mahto that the prosecutrix was brought on 5.3.2002 for

examination. It may be noted that CHC Limkheda was

situated just few yards away from Limkheda police station.

The prosecutrix was purposely sent late for examination to

cause disappearance of evidence.

353 DW 1 Budh Singh is a defence witness who was

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attached to the Limkheda police station at the relevant time.

He admitted that he was a writer constable. He admitted his

hand-writing in Exhibit 56. Accused No.17 Somabhai Gori was

PSO at the time when the FIR was recorded and the original

of the FIR was scribed by accused No.17 Somabhai Gori.

Somabhai, accused No.17 questioned the prosecutrix and he

(DW 1) simultaneously recorded the replies given by the

prosecutrix. He has stated that Somabai took charge on

4.3.2002 at 11.35 am till 11.35 am on 5.3.2002. Head

constable Jaisingh (DW 5) has stated that he handed over

charge to accused no. 17 Somabhai on 4.3.2002 at 11.35

a.m.

354 DW 5 Jaisingh Patel was working as a head

constable at Limkheda police station at the relevant time. He

made the FIR entry Exhibit 485-A in FIR register (Article 74)

as 10.15 am. He has stated that at that time the prosecutrix

had approached accused No.15 Bhimabhai Patel, who

directed her to accused No.17 Somabhai Gori, who recorded

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the statement of the prosecutrix i.e. FIR Exh.56. Accused No.

15 was heading Limkheda Police Station at that time.

Mr.Patel made station diary entry about the incident.

Accused No.15 had made note in the station diary entry

regarding riots at Sanjeli which is marked exhibits 503, 503A

and while leaving police station, accused No.15 told DW 5 to

leave two pages of FIR book for recording the complaint from

Sanjeli and accordingly, he left two pages Nos.83, 84 and

those two sheets were torn off by him. However, he kept the

said sheets in the book itself on page Nos.85 and 86. DW 5

Jaisingh has stated that he handed over charge to accused

No.17 Somabhai Gori on 4.3.2002 at 11.35 a.m. DW 1 has

also stated that Somabhai Gori took charge on 4.3.2002 at

11.35 a.m. This also shows that FIR was ante-timed because

if accused No. 17 Somabhai took charge at 11.35 a.m. on

4.3.2002, he could not have recorded the FIR Exh. 56 at

10.45 a.m. on 4.3.2002. This further shows the mischief

played by the police. The police have prepared the FIR later

to suit them and then antetimed it.

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355 DW 6 Chandubai Tariyad has stated that he was a

police constable at Limkheda police station at the relevant

time. He stated that the prosecutrix was present when

accused No.17 Somabhai Gori told him to record the

statement. He prepared two copies of the FIR with carbon

paper.

356 We have already discussed the evidence of PW 10

Mr.R.K. Soni, PW 28 Bhavinkumar Patel, PW 30 Vasudev

Pandit and PW 32 Vinodbhai Prajapati at length while

scrutinizing the evidence relating to photographs. We have

already held that though these four witnesses did not support

the prosecution, there is sufficient reliable evidence to hold

that PW 10 and PW 28 went to spot on 4.3.2002 and

5.3.2002; took photographs and PW 30 Pandit was having

Scanner Colour Lab at Godhra and negatives (Exh. 59/1 to

5/17) were developed in his Lab. The bill of PW 10 Soni for

the photographs was raised, demand made and the payment

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of photographs was also made to PW 10 Soni. Thus, the

prosecution has proved its case that accused no. 17 had

recorded the FIR and accused nos. 13 to 16 have visited the

spot on 4.3.2002 and 5.3.2002 and there are many lapses in

the investigation.

357 We have mentioned earlier that none of the police

personnel from Limkheda police station, who were on duty at

Limkheda police station on 4.3.2002 and 5.3.2002 supported

the prosecution when they were called as witness for

prosecution. However, conspicuously, the police personnel

appeared as witnesses for the defence and tried to destroy

the case of the prosecution at its root. However their

attempts were an abortive attempt. The circumstances and

the documentary evidence like yadi Exh.200; absence of

material facts in the FIR; not mentioning the true facts in the

yadi, not sending the prosecutrix immediately for medical

examination, but sending her on the next day, so also not

taking the prosecutrix to spot; not taking the prosecutrix to

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identify the dead bodies; not protecting the dead bodies;

disappearance of body of Saleha, etc. form concrete

evidence to lead us to the only inference that the police

working at Limkheda police station prepared incorrect record

as they wanted to protect the interest of persons of their

department i.e., accused Nos.13 to 18 as well as persons

from Randikpur i.e accused Nos 1 to 12. Thus, we find that

the witnesses who did not support the prosecution and who

stepped in as defence witnesses, did not create any

confidence in our mind that they were telling the truth but we

found that they were interested only in presenting a

manipulated version to mislead the Court.

EXHIBITS 147 TO 150

358 As far as accused who are policemen are

concerned, Mr.Ponda argued that the letters at exhibits 147

to 150 collectively, i.e., the correspondence between PW 18

Jayanti Ravi, District Magistrate and Collector, Godhra and

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Shri Jadeja, SP, Dahod, disclose that the progress in the

investigation was communicated by the police officers of

Limkheda police station to the higher authority and Mr.Jadeja

was personally supervising the entire investigation. Thus,

when Superintendent of Police of Dahod was supervising the

investigation, then how the police of Limkheda police station

i.e., accused Nos. 13 to 18 can be held responsible for any

omission or under sections 217, 218 and 201 of the Indian

Penal Code.

359 In order to examine the substance in the

submissions of Mr.Ponda, we carefully went through the

correspondence between PW 18 Jayanti Ravi District

Magistrate Collector, District Panch Mahal Godhra and

District Superintendent of Police, Dahod and the Additional

Chief Secretary, Home Department, New Sachivalaya,

Gandhinagar:

(i) Exhibit 147 is a letter dated 7.3.2002 written by

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PW 18 Collector and District Magistrate, Panch Mahal Godhra

to the District Superintendent of Police, Dahod. She has

referred to her visit to the relief camp and recording of the

statement of the prosecutrix by the Executive Magistrate. In

the said letter, she has requested the District Superintendent

of Police, Dahod to arrest the persons named in the

statement (Exh. 277) recorded by the Executive Magistrate

PW 23 Govindbhai Patel.

(ii) In Exh. 148A collectively, there is another letter

written by PW 18 District Magistrate, Panch Mahal Godhra to

the District Superintendent of Police, Dahod dated 11.3.2002

in which she has requested to inform progress in the case;

(iii) There is another letter by PW 18 District

Magistrate, Godhra to District Superintendent of Police,

Dahod dated 18.3.2002 which is marked exhibit 148B. This

was a reminder whereby the same request was repeated.

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(iv) Exh. 148C is another letter dated 3.5.2002 written

by PW 18 Jayanti Ravi to Mr.A.K. Jadeja, the Superintendent

of Police, Dahod, where she has referred to his report dated

11.4.2002 which showed that nobody was arrested from the

persons named in the complaint and she requested that

matter be taken seriously and the report of action taken by

him to be sent to her and National Commission for Women,

Delhi.

(v) Exh. 148D is a letter dated 27.6.2002 written by

PW18 Jayanti Ravi to the District Superintendent of Police,

Dahod. She informed that immediate legal action be taken

against offenders as report of the proceedings is to be sent

to the Government and she sent the copy of the same to the

Additional Chief Secretary, Home Department. In this letter,

she specifically stated "Till today no report of proceeding is

received from you".

(vi) Exhibit 148E dated 29.6.2002 is a letter by PW18

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Jayanti Ravi to the Superintendent of Police, Dahod, wherein

she has informed that a team of 26 Members of Parliament is

arriving on 2.7.2002 in connection with the incident of

communal riots and hence, she asked for detailed report.

(vii) Exhibit 149 is a letter dated 8.7.2002 written by

PW 18 District Magistrate, Panch Mahal, Godhra to the

Additional Chief Secretary, Home Department, Sachivalaya,

Gandhinagar. In the said letter, she has incorporated a report

of the Superintendent of Police, Dahod dated 30.6.2002.

(viii) In the said report dated 30.6.2002, Mr.Jadeja had

given a gist of the FIR and also mentioned about the

complaint given by the prosecutrix dated 6.3.2002 recorded

by the Tehsildar where the names of the accused i.e.,

accused Nos. 1 to 12 were mentioned and it was mentioned

that they were from Randhikpur. In the said letter, he had

forwarded the progress report of the Circle Police Inspector,

i.e., the investigating police officer of this case i.e., accused

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No.16 Ramsingh Bhabor. In the said report, he has informed

that the complainant Bilkis has not stated in her FIR the

names of the accused and that she was raped and it was

mentioned by accused No. 16 i.e., the Circle Inspector that

when she disclosed these three names, she knew these

persons, then why she did not disclose these names when

she gave FIR at the Limkheda police station? He has further

reported that the complainant has stated contradictory facts

and the medical officer has given NIL report and no

independent evidence against the accused is available till

then and therefore, it was communicated that the alleged

accused were not arrested.

(ix) Exhibit 150 dated 20.3.2002 is a letter written by

Mr.Jadeja, Superintendent of Police, Dahod to PW 18 District

Magistrate, Panch Mahal, Godhra. (This letter was written

after receipt of letter Exh 148B which was sent on 18.3.2002

by District Magistrate Godhra PW 18 Jayanti Ravi). He has

informed that a violent mob of 500 attacked the prosecutrix

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and her cousins and raped and killed them. However, she

has stated in another statement that 25 to 30 persons

attacked and assaulted the prosecutrix and her cousins.

However, there are contradictions in both her statements

about the number of persons and the rapists and therefore,

totally neutral and judicious investigation is done and

accordingly, he has instructed orally and in writing to the

Circle Inspector, Limkheda police station i.e., accused No.16

to investigate meticulously and to take over investigation and

he also instructed PW16 and his PSI to conduct the

investigation under his guidance so that it is independent and

without defect. He has also communicated that the process

of daily investigation should be under his guidance and he

informed that efforts are being made to arrest the accused.

360 We do agree with Mr.Ponda that in the letter i.e.,

Exh 150, the Dist. Supdt. of Police, Dahod has informed Dist.

Magistrate PW 18 Jayanti Ravi, Panch Mahal, Godhra that he

has complete supervision over the day to day investigation of

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the case. Obviously, one may get the impression that

Mr.Jadeja is responsible for all the loopholes and lacunae

which are found in the investigation. However, we make it

clear that before Mr.Jadeja has written this letter on

20.3.2002 the Limkheda police had already hushed up all the

material facts and they had manipulated the FIR, spot of

offence, inquest and other documents. They have taken the

investigation in a wrong direction from the beginning i.e.,

from the day of the FIR i.e., 4.3.2002. The police i.e., accused

Nos.13, 14, 15, 16 17 have at the initial stage deleted the

names of the accused. They did not record the names of the

accused and the material information furnished by the

prosecutrix at the time of recording of the complaint.

Accused Nos.13, 14 and 16 one after the other were in

charge of the investigation or it appears they worked as a

team on the initial 2 to 3 days. The case was deliberately

damaged at its initial stage and therefore, though the police

visited the spot on the very day of the FIR i.e., on 4.3.2002,

the defence tried their level best to suppress this fact from

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the Court and witnesses like PW10, PW28, PW30, and PW32

were won over by them on the point of visiting site on

4.3.2002 and taking photographs of the dead bodies on

4.3.2002 5.3.2002.

361 We rely on the judgment of the Supreme Court in

the case of Ramesh and others vs. State of Haryana

(Criminal Appeal No. 2526 of 2014 decided on

22.11.2016). The Supreme Court has discussed in this case

about the damage done by hostile witnesses to the law and

order and judicial institution. It held thus:

"99. Witness turning hostile is a major disturbing

factor faced by the criminal courts in India. Reasons

are many for the witnesses turning hostile, but of

late, we see, especially in high profile cases, there is

a regularity in the witnesses turning hostile, either

due to monetary consideration or by other tempting

offers which undermine the entire criminal justice

system and people carry the impression that the

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mighty and powerful can always get away from the

clutches of law thereby, eroding people's faith in the

system.

....If a witness becomes hostile to subvert the judicial

process, the Courts shall not stand as a mute

spectator and every effort should be made to bring

home the truth. Criminal judicial system cannot be

overturned by those gullible witnesses who act under

pressure, inducement or intimidation.

....When the witnesses are not able to depose

correctly in the court of law, it results in low rate of

conviction and many times even hardened criminals

escape the conviction. It shakes public confidence in

the criminal justice delivery system. It is for this

reason there has been a lot of discussion on witness

protection and from various quarters demand is

made for the State to play a definite role in coming

out with witness protection programme, at least in

sensitive cases involving those in power, who have

political patronage and could wield muscle and

money power, to avert trial getting tainted and

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derailed and truth becoming a casualty. A stern and

emphatic message to this effect was given in Zahira

Habibullah's case as well.

362 No statements of PW 10, PW 28, PW 30, and PW

32 were recorded by the accused police. Mr.Jadeja came in

picture after 8.3.2002 i.e., after PW 18 Jayanti Ravi, the Dist.

Magistrate, Godhra had written a letter dated 7.3.2002 (exh.

147) to him and requested him to arrest the accused persons.

However, thereafter, she wrote two reminders asking for the

report of arrest. However, reply to her letter dated 7.3.2002

was given by Mr.Jadeja, Superintendent of Police,Dahod on

20.3.2002 after collecting information from the Circle Police

Inspector (accused No.16) and others, thereby he has

informed that the entire investigation is under his control.

However, there is no evidence to show that Mr.Jadeja had

been to the spot at any point of time. He has obviously taken

all the information and instructions from the accused police

persons and Mr.Jadeja has completely relied on the police

officers at the Limkheda police station i.e., accused Nos.13,

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14, 15, 16, 17 18 and mainly on accused No.16. So also,

the said accused have completely misled him. Mr.Jadeja was

not called as a witness either by the prosecution or by the

defence. It is to be noted that the defence has examined

nearly 10 witnesses. The defence relied on the

correspondence between PW18 Jayanti Ravi and Mr.Jadeja

and thus, Mr.Jadeja is not before the Court to explain his

statement in his report that he is going to supervise daily

investigation. After considering the evidence before us and

the suppression of facts to a great extent by the police, we

are constrained to infer that Mr.Jadeja did not personally look

into the matter but has completely relied on the investigation

carried out and the report made by the Circle Police

Inspector, Limkheda police station i.e., accused No.16. Thus,

this correspondence of Mr.Jadeja does not absolve accused

Nos.13 to 18 of their legal liability and their duty to

investigate the matter properly. On the contrary, it highlights

that though PW 18 Jayanti Ravi was pursuing the matter and

has demanded the arrest of the accused, the accused i.e., the

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police of Limkheda police station have deliberately avoided to

arrest the accused. It was a case of section 302 and section

376 of the Indian Penal Code which are grave and serious as

also cognisable offences. It is not necessary for the police to

go into detail and verify whether the accused are innocent or

not which is the function of the Court. The police were

supposed to take action when the cognisable offence is

reported to them and the names of the accused are informed

to them. After arrest of the accused, if the police would have

come to the conclusion that there is no evidence against

them, then, they could have filed report under section 169 of

the Code of Criminal Procedure. However, the omissions on

the part of the police accused are so grave and so obvious

that their malafides and intentions are very apparent.

363 The accused who were police personnel were

aware of the role played by the other accused in this offence,

yet, they incorrectly prepared the record of FIR,

panchanamas and suppressed the fact of their visit to the

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spot on 4.3.2002 and about taking photographs of the bodies.

The bodies were left at the spot till the next day lying there

unprotected with knowledge that this would damage the case

and thereby intentionally tried to save the accused from legal

punishment. Similarly, the police officers i.e., the accused

Nos.13 , 14 and 16 who were in charge of the investigation at

that time and had visited the spot did not protect the dead

bodies. Even if the case of the defence is accepted that there

were no bodies of 14 dead persons, however, the body of

Saleha was there but they did not protect this body and the

bodies were shifted from the place of the actual incident. Not

writing the names of the accused and the material portion of

the offence in the FIR as also causing disappearance of the

evidence was clearly done with intention to screen the

accused from legal punishment. Moreover, accused Nos.13

to 18 created such an information in respect of the offence

which they knew was false. This shows that the police

accused have committed offences under Sections 201 218

of IPC.

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364 Accused Nos.19 and 20 are the medical officers.

Prima facie, one may feel that they are not concerned with

the investigation and therefore, they are innocent. However,

in our considered opinion and after close scrutiny of the

evidence, we could read between the lines which show that

the medical officers have completely failed to perform the

postmortem of all the bodies as is expected under the law.

The medical officer, who is entrusted to perform the

postmortem of the dead bodies, is duty bound to give all

details of the injuries and the cause of death. In cases where

rape is committed, then, the medical officer is required to

examine the private parts of the victim carefully so also the

injury marks on her body and private part carefully keeping in

view history of rape and make an objective note of the

observations. It is also a must for the medical officer in the

case of rape to collect vaginal swab and smear or any other

liquid or dried liquid which could have been a remnant of

seminal discharge and thus, give a correct direction to the

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investigation. The finding may be negative or positive,

however, such examination is required to be done in the case

of rape. In the present case, in the inquest panchanama, the

Doctors have only mentioned injury to private part of one

deceased. On perusal of the photographs, one can easily

make out that the females were sexually abused when they

were put to death. It was not one incident of rape but as per

the case of prosecution, nearly 3 to 4 females were raped. 4

bodies of females were found. The incident has taken place

in the afternoon of 3.3.2002 and the Doctors visited the spot

two days thereafter i.e., on 5.3.2002. The postmortem

reports are produced which are marked at exhibit 282A to

282G.

365 In Inquest Panchnama Exhibit 123, it is mentioned

as under:

       (i)              the body of Haleema was lying with a big

stone on her chest. It was mentioned that her chest

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portion was pressed and on examination of the private

part, a white liquid was flowing and it is mentioned that

no clothes were found on the body except a red colour

leg wear and the remaining portion is bare.

(ii) Another female corpse was found. She was

wearing a red colour blouse, cream colour red design

saree and a petticoat. However, her petticoat is over

the waist portion. The lower portion is naked. The

corpse was lying naked on its stomach. It was the body

of a young lady and blood was flowing from the mouth

and no marks of cruelty were found.

(iii) One more body was found of 35 years old female.

Her face was crushed and bleeding. Her abdomen was

swollen and white liquid was flowing through the private

part.

(iv) Then another i.e. 4th corpse which was of a 22

year old female was found. There was bleeding from her

mouth and eyes. The face was swollen, the body was

lying bare. However, no visible marks of injury were

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found on the body. However, on examination of the

private parts, marks of cruelty were seen.

366 Thus, we are convinced that the defence cannot

be taken by the medical officers that they were directed by

the police to conduct postmortem in such a manner. The

medical officers are independent persons; they have to carry

out postmortem independently as they are experts and write

true and correct facts in respect of injuries and the cause of

death.

367 The postmortem reports are at Exhibits 282A,

282B, 282C, 282D, 282E, 282F and 282G. The brief details

of the post mortem reports are as under:

Exhibit      Relevant                           Particulars                                      Answer
Clause
No
282A Is of Haleema, the wife of Abdul Ghanchi. The

postmortem was conducted on 5.3.2002 from 5.10pm to
6.20pm.

3.            4.      5       5.    It is in respect of substance of                             NAD
accompanying report from police (No
officer or Magistrate together with Abnormality

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the date of death, if known. Detected)
Supposed cause of death or reason,
for examination.
15 Pertains to external genitals. Swollen
Indication of purging external
genitalia
19 (1) Injuries under the scalp, their Posterior
nature occipital region
fracture
19(3) Brain Bleeding
present.
20 Thorax Multiple ribs
fracture on
both sides,
lungs ruptured.
Viscera
ruptured,
putrefaction
began.

Cause of death Cardio
Respiratory
Arrest due to
Haemmorhagic
shock due to
blunt injury

282B Of an unknown female of 13 years. Postmortem
conducted between 12.10pm to 1.10pm.
Cause of Cardio respiratory arrest due to shock due to
death haemorrhagic shock (head injury)

282C Of an unknown male. Postmortem conducted between
1.15 pm to 2.05pm.
Cause of Cardio respiratory arrest due to head injury
Death

282D Of an unknown male person. Post-mortem conducted

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between 2.12 p.m. 3.00 p.m.
Cause of Due to shock due to internal brain haemmorhage
Death (head injury)

282E Of an unknown 20 year old female with red blouse, green
petticoat and green saree. Post-mortem conducted
between 3.10 p.m. 3.45 p.m.
Clause 15 Condition of private parts Female
Clauses 17 As per inquest
18 panchanama
Clause 19 Head injury
fracture in
posterior region
Cause of Due to Cardio Respiratory Arrest due to Internal
death Head injury (blunt injury)

282F Of a 35 year old female wearing yellow blouse, pink

pyjama. Post-mortem conducted between 3.52 p.m.
4.30 p.m.
Clause 15 Odematous
Cause of Sudden Cardio Pulmonary Arrest due to shock due
Death to blunt injury

282G Of a 22 year old female, wearing yellow petticoat, multi
colour saree. Postmortem started at 4.32 pm to 5.05pm.

         Clause 15                                                                        Odematous
thigh region.
Multiple injury
with stains.
Cause of Cardio Respiratory Arrest due to shock due to
Death internal haemorrhage due to injury.

368 The reports at Exhibit D105 - (1) to D105 (7) sent

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by the police to the medical officers for conducting

postmortem and postmortem notes of all the bodies are all

important documents which are required to be looked into to

decide how the investigation by the police and the

postmortem conducted by the Doctors were perfunctory and

manipulated and done in order to cause disappearance of

evidence and to screen the offenders i.e. accused nos.1 to

12.

369 The police officer is supposed to send a report (as

per the procedure in Gujarat) to the Doctor to conduct

postmortem. As per the case of the police, they went

alongwith Doctors for the first time on 5.3.2002 on the spot

where 7 bodies were lying and the postmortem was

conducted on the spot on the same day. Thus, the first

inquest was conducted at 10 am to 12 noon on 5.3.2002. On

5.3.2002, all the medical reports were written there at 10.10

am. In all the medical reports, the clauses are filled in.

Clause Nos.9, 10, 15, 16 are mentioned as per the inquest.

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However, the inquest was conducted between 10 am to 12

noon. That means the reports Exh. D105(1) to D105(7) were

prepared prior to inquest.

370 The inquest started at 10 am, finished at 12 noon.

The report also started at 10.10 am and in all these reports,

the words "as per inquest" were mentioned before inquest

was completed. Thus, it was hurriedly given to the medical

officers and thereafter, these medical officers conducted

postmortem. In the proforma of the postmortem, specific

information is required to be filled in about the injuries and

the private parts especially where rape is alleged. Nowhere,

in any of the postmortem reports, the Doctors have

mentioned that white fluid flowing from private parts of the

two bodies was noticed though it is mentioned in the inquest.

Similarly, there is a clause in which the Doctor has to state

about collection of any substance found on the body and

nothing was mentioned by the doctors. Thus, it is evident

that they were not only casual in conducting the postmortem

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but suppressed the material information by way of omission.

All the acts of commission and omission of the police and the

medical officers cannot be examined in isolation but they are

well connected with each other in a chain of suppression of

facts causing disappearance of the evidence with intent to

screen the offenders and save them from punishment.

Hence, their acquittal deserves to be set aside. We therefore

call upon Mr.Ponda to make submissions on the point of

quantum of sentence. He has submitted that minimum

sentence be imposed.

371 In view of the above, we set aside acquittal of

accused Nos.13, 14, 15, 16, 18, 19 and 20 under Sections

201 and 218 of IPC and we hold them guilty of the offences

punishable under sections 201 and 218 of the Indian Penal

Code. For the offence under Section 201 of IPC, each of the

accused nos. 13, 14, 15, 16, 18, 19 20 is sentenced to the

period of imprisonment undergone by them and fine of

Rs.5,000/- (Rs. Five thousand only) each i/d S.I. for two

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months. For the offence under Section 218 of IPC, each of

these accused is sentenced to fine of Rs.15,000/- (Rs. Fifteen

thousand only) each i/d S.I. for two months. The accused nos.

13, 14, 15, 16, 18, 19 20 are granted time of eight weeks

to deposit the fine amount. However, the ingredients u/s 217

are not established. So, we maintain the verdict of the trial

Court in respect of offence u/s 217 of IPC.

372 We hereby confirm the conviction and sentence

imposed on accused nos. 1, 2 4 to 12 as imposed by the

trial Court. All the Appeals filed by accused nos. 1, 2 and 4 to

12 against their conviction and sentence i.e. Cri. Appeal Nos.

1020 of 2009 to 1023 of 2009 and 487 of 2010, are

dismissed, hence, they would have to undergo the conviction

and sentence as imposed by the trial Court.

373 Appeal for enhancement of sentence i.e. Cri.

Appeal No. 271 of 2011 filed by the C.B.I., is dismissed.

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374 Appeal against acquittal i.e Cri. Appeal No. 194 of

2011 filed by the C.B.I., is partly allowed.

375 All fine amounts deposited be paid to the

prosecutrix by way of compensation.

376 Learned counsel for the accused nos.1 to 20,

learned Special Public Prosecutor and A.P.P. are furnished

copies of judgment free of costs.

[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J.]
kandarkar / Amberkar

::: Uploaded on - 04/05/2017 07/05/2017 00:29:16 :::

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