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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46 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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47 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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48 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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49 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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50 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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51 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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52 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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55 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docconduct 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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57 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docRajasthan : 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
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58 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbound 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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60 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccase, 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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61 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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62 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshall 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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63 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctrue 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::: Uploaded on – 04/05/2017 07/05/2017 00:28:38 :::
64 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbefore 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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65 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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66 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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67 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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68 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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69 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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.
(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
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130 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc1 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
Saleha93 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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131 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docIndian 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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132 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc95 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,
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133 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccorrespondence, 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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134 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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136 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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 andsatisfactory 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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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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139 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctest 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 arephotographs. 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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141 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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142 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccome 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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143 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docare 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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144 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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145 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc4.3.2002, 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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146 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docVohaniya 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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147 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto 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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148 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc(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::: Uploaded on - 04/05/2017 07/05/2017 00:28:47 :::
149 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccase......."
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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150 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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151 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdeveloped 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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152 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc32) 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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153 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsubmitted 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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154 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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155 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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156 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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157 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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158 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docInvestigating 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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159 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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160 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbody 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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161 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdelivery 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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162 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docBrijesh 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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163 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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164 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docedged 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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165 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc(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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166 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docentire 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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167 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docevidence 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
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168 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doci) DW1 Budhsingh
Mathurbhai Patelii) DW5 Jaisinghbhai
Hirabhai Patel,iii) DW6 Chandubhai
Tariyadiv) PW7 Madina Siraj
Patelv) 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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169 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docplace 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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170 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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171 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstayed 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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172 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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173 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmembers 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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174 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docvillage 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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175 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnone 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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176 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docclose 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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177 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdestroyed 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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178 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbeing 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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179 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix 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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180 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doci.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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181 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsignificant. 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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182 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc33 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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183 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docat 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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184 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsubmitted 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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185 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochouse 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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186 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPonda 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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187 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsubmitted 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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188 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpolice 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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189 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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190 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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191 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSugra, 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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192 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docat 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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193 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc13.3.2002, 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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194 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docof 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 11Sumaliben 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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195 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docconstable 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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196 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docif 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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197 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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198 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwhat 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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199 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmembers. 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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200 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docand 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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201 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docVanraj 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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202 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdescended 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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203 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshe 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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204 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfor 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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205 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docapproach 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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206 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochappened 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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207 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwith 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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208 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docafter 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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209 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpeople 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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210 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docof 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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211 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstatements 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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212 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstatement 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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213 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccused 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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214 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfollowed 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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215 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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216 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docof 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 :::: Uploaded on - 04/05/2017 07/05/2017 00:28:54 :::
217 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc181 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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218 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 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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219 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docidentify 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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220 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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221 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto 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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222 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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223 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc4.3.2002, 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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224 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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225 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthereafter 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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226 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthese 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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227 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docinformation 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
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228 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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229 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrecorded 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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230 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docMadina 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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231 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthis 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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232 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docRandhikpur 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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233 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccused 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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234 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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235 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docCID, 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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236 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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237 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochave 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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238 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrefugees 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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239 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdated 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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240 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstation 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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241 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docMagistrate 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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242 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix 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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243 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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244 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docconnected. 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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245 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto 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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246 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthey 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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247 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPawar. 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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248 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docalso 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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249 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docMarch, 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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250 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docinvestigation, 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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251 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstated 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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252 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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253 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthey 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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254 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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255 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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256 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix 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
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257 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docShamimben, 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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258 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfather 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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259 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docat 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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260 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docis 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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261 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docriots, 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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262 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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263 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwas 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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264 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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265 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwords. 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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266 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docevidence, 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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267 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochad 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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268 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docforehead. 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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269 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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270 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbe 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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271 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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272 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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273 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docLimkheda 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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274 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dockachcha 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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275 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSaddam 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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276 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwell 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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277 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpresence 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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278 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docright 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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279 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrelied 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;::: Uploaded on - 04/05/2017 07/05/2017 00:29:01 :::
280 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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::: Uploaded on - 04/05/2017 07/05/2017 00:29:01 :::
281 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doca 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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282 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix 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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283 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPolice 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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284 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docevidence, 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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285 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpapers. 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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286 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthat 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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287 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docOfficer 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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288 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdocuments 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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289 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docout 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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290 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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291 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docvariance 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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292 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docweb 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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293 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto 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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294 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdefence 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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295 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docGujarati 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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296 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwith 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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297 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docon 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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298 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docentered 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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299 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthereafter 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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300 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docby 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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301 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabrasions 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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302 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsheets 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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303 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docterm 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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304 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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305 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docon 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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306 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochillock. 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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307 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthat 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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308 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc2 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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309 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docoffence 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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310 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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311 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docas 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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312 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docyadi 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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313 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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314 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecution, the bodies of 7 persons are as under:
(1) 4 women i.e. Haleema, Ameena, Sugraand 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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315 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccertified 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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316 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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317 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsituated 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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318 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docunsatisfactory.
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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319 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc5.3.2002 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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320 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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321 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwas 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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322 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docRavi 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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323 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshows 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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324 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docCode 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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325 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docDayal 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
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326 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsuffered 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
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327 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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328 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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329 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc4 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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330 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docgirl 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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331 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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332 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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333 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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334 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPrasad 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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335 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfound 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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336 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthere 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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337 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docomissions, 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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338 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSattar) 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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339 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 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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340 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsigned 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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341 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnote 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 IPC298 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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342 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 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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343 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccused 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
ModhiyaIdentified 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
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344 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc300 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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345 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccused 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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346 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc13.3.2002 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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347 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwe 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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348 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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
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349 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docproviso 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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350 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctrial, 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::: Uploaded on - 04/05/2017 07/05/2017 00:29:08 :::
351 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsection 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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352 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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353 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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354 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabout 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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355 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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
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356 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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357 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwere 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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358 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthough 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
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359 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
(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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360 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpunishment 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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361 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docquestions 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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362 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbut 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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363 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docper 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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364 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docevidence". 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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365 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docflavour 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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366 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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367 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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368 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doca 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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369 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docescape 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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370 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwitnessed 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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371 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbe 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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372 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochardened 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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373 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthey 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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374 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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375 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docvarious 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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376 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochave 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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377 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docliquid 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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378 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docconvicted 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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379 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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380 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmentioned 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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381 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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382 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docVenegavkar 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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383 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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384 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docafter 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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385 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docagainst 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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386 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docby 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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387 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdoctors 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
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388 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docliable, 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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389 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabout 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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390 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabusing. 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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391 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsubmissions 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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392 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docexamination 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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393 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpolice 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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394 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docHaleema 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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395 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
(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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396 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshe 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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397 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsaid 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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398 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwere 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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399 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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400 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docRamkishan 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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401 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docidentified. 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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402 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docattached 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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403 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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404 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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405 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docof 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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406 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docidentify 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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407 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docShri 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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408 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 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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409 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
(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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410 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docJayanti 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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411 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docNo.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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412 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docand 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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413 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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414 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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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415 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmighty 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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416 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docderailed 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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417 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc14, 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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418 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpolice 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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419 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docspot 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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420 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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421 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docinvestigation. 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 bigstone on her chest. It was mentioned that her chest
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422 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docportion 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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423 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfound 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. Thepostmortem was conducted on 5.3.2002 from 5.10pm to
6.20pm.3. 4. 5 5. It is in respect of substance of NAD
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424 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe 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 injury282B 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
Death282D Of an unknown male person. Post-mortem conducted
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425 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbetween 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 injury282G 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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426 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docby 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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427 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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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428 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbut 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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429 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmonths. 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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430 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc
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.]
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