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JUDGEMENT Registration No. :SC/44/2008
Filing No. :SC/44/2008
Filed on : 22/04/2008
Registered on : 22/04/2008Decided on :04/05/2012
IN THE COURT OF ADDITIONAL SESSIONS JUDGE, ANAND.
(SHRI R. M. SAREEN)
SESSION CASE NO.44 OF 2008.
EXH.______
Complainants : (1) The State of Gujarat.
(2) Vora Rehanaben D/o. Yusufbhai Yakubbhai
Vora, Residing at Ode, Taluka : Umreth,
Dist. Anand.
V E R S U S
Accused :
Sr.
No
.
Name of accused Age Residential
address
Remarks
01 Kantibhai Manabhai
Chavda
40 Surivali Bhagol,
Ode
02 Ravjibhai Manabhai
Chavda
38 Surivali Bhagol,
Ode
03 Jayantibhai Shanabhai
Parmar
30 Surivali Bhagol,
Ode
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04 Rameshbhai Manabhai
Chavda
35 Surivali Bhagol,
Ode
05 Poonambhai Dahyabhai
Talpada
36 Nr. Bus stand,
Ode
06 Ganpatbhai Chhotabhai
Chavda
25 Surivali Bhagol,
Ode
07 Budhabhai Shankarbhai
Parmar
32 Surivali Bhagol,
Ode
08 Harishbhai Vallabhbhai
Patel
38 Malav Bhagol,
Ode
09 Vasantbhai PoonambhaiPatel
30 Malav Bhagol,Ode
10 Lalabhai @ Nileshkumar
Manibhai Patel
26 Malav Bhagol,
Ode
11 Tino @ Maheshbhai
Gopalbhai @ Ramabhai
Patel
30 Malav Bhagol,
Ode
12 Mineshkumar Poonambhai
Patel
31 Malav Bhagol,
Ode
13 Prakash @ Pako Jamnadas
Patel
35 Malav Bhagol,
Ode
14 Umeshbhai Poonambhai
Patel
30 Dakor Vad, Ode
15 Arvindbhai Mangalbhai
Patel
37 Dakor Vad, Ode
16 Manubhai Ashabhai Patel 32 Malav Bhagol,
Ode
17 Natubhai Bhagabhai Patel 40 Malav Bhagol,
Ode
18 Vinubhai RanchhodbhaiPatel
48 Malav Bhagol,Ode
19 Poonambhai Dahyabhai 28 Malav Bhagol,
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Patel Ode
20 Chhotubhai Ramabhai
Patel
48 Malav Bhagol,
Ode
21 Dilipbhai @ Deepakbhai
Kanubhai Patel
35 Malav Bhagol,
Ode
22 Ashokkumar Harmanbhai
Patel
25 Malav Bhagol,
Ode
23 Piyushbhai Bhailalbhai
Patel
26 Malav Bhagol,
Ode
24 Samir Bhikhubhai Patel 36 Pathharvadi
Khadaki, Ode
25 Arvindbhai Bhagabhai
Patel
52 Malav Bhagol,
Ode
Abetted
as per
Pushis
vide
Exh.459,
died
duringpendency
of the
case
26 Riteshkumar Arvindbhai
Patel
24 Malav Bhagol,
Ode
27 Manibhai Bakorbhai Patel 63 Malav Bhagol,
Ode
28 Ghanshyambhai
Vallabhbhai Patel
30 Malav Bhagol,
Ode
60
29
Ashokbhai Dahyabhai
Patel
42 Malav Bhagol,
Ode
30 Bhaveshbhai Kanchanbhai
Patel
28 Malav Bhagol,
Ode
31 Ghanshyambhai
Shankarbhai Patel
35 Malav Bhagol,
Ode
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32 Dilipbhai Ranchhodbhai
Patel
35 Malav Bhagol,
Ode
33 Sujitbhai Harishbhai Patel 26 Malav Bhagol,
Ode
34 Pintu @ Raghuvirbhai
Chandrakant Patel
25 Malav Bhagol,
Ode
35 Kiritkumar @ Bodiyo
Manubhai Patel
26 Malav Bhagol,
Ode
36 Poonambhai Shanabhai
Patel
35 Malav Bhagol,
Ode
37 DineshbhaiParshottambhai Patel
37 Malav Bhagol,Ode
38 Bhavesh Manubhai Patel Adult Ode, Tal. Anand
39 Bi inbhai Manibhai Patel Adult Ode Tal. Anand
40 Sureshbhai @
Somaiya/Suresh Chunilal
Adult Ode, Tal. Anand
41 Sureshbhai @ TatoRanchhodbhai Patel
Adult Ode, Tal. Anand.
Accused
No. 38 to
41 joined
vide
applicatio
n Exh.288and 345
APPEARANCE
Ld. Special P.P., Shri B.C. Trivedi and Ld. Special A.P.P. Shri A.R.
Desai on behalf of prosecution.
Ld. Advocate Shri Mansuri & Ld. Advcoate Shri Shaikh on behalf
of witnesses.
Ld. Advocate, Shri C. K. Patel on behalf of accused no. 1 to 22
and accused no. 38 and 39.
Ld. Advocate, Shri A. H. Dhagat on behalf of accused no.23 to 37and accused no. 40 and 41.
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J U D G E M E N T
(1) The accused are facing trial for the offence U/s. 143, 147,
148 r/w Sec.149 of I.P.C. and Sec.302, 435, 436, 440, 451r/w
Sec.149 of I.P.C.; Sec.307 r/w Sec.149 of I.P.C., Sec.120(b) r/
w Sec. 34 of I.P.C.; Sec.295, 297, 395 r/w 149 of I.P.C. and
Sec.135(1) of Bombay Police Act.
(2) The facts of the prosecution case are that on 27/2/2002
there was train carnage incident occurred at Godhra in
which many Kar Sevaks were burnt alive. As a reaction to
the incident VHP (Vishava Hindu Parishad) and other
organizations called for Gujarat Bandh on 28/2/2002 and at
the same time on 1/3/2002 there was Bharat Bandh. On
1/3/2002 in between 13.30 to 13.45 hours, mob of 400 to
500 of Hindu persons hatching conspiracy and formed
unlawful assembly possessing deadly weapons like Dhariya,
sticks, swords, kerosene, petrol gallons and pouches of
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petrol and burning rags of village Ode and pelted stones
on the houses of muslims community who were in the
minority in the village Ode and shouted to burn muslims
alive, kill them and as such poured kerosene, petrol on the
houses and shops of the muslims community and in
pursuance of that house of complainant and witnesses
were burnt in which one Nuriben Gafurbhai Vora and
Aaiyeshaben Abdulbhai Vora were burnt alive and one
Kadar Ismail Vora who was running for his life was called by
mob and burnt alive by pouring kerosene on him and also
poured kerosene on the witnesses who were running, as
such injuring the witnesses. The mob burnt houses, cabins
and shops and religious places of the muslims and also
broke and damage the property and hurt the feelings of
the muslims community in which three persons were burnt
alive and many others were injured.
In this commotion, the complainant and some of the
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witnesses ran away and went to Sureli Camp, wherein the
complainant Rehanaben Yusufbhai Vora declared contents
before the Circle Police Inspector(CPI), Shri K. R. Bhuva on
5/3/2002 who registered the complaint and sent the
complaint for registration in Khambholaj Police Station and
thereafter took over the investigation of the case, as per
the order of the Higher Authority.
CPI, Shri K. R. Bhuva initially recorded the statements of
injured who were admitted in the hospital passed the
message of visitation to the Higher Authority, calling FSL
Officer, pass the message for videography and photography
and went to the place of incident. On 6/3/2002 draw the
panchnama of the site of incident before the FSL officer,
bones were lying at the scene of incident, 300 grams
human bones and 50 grams ash were seized by way of
panchnama. Mr. Bhuva has also draw the panchnama of the
various properties in Malav Bhagol, 7 accused were found,
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they were arrested, panchnama of the injured persons were
drawn in the Govt. Referral Hospital at Umreth, additional
statements of the complainant and her father Yusufbhai
Yakubbhai Vora were recorded and on 7/3/2002 statements
of other witnesses were recorded. On 8/3/2002 statements
of other witnesses and complainant showed the place
where Aaiyeshaben and Nuriben were burnt alive. As such
before two panch witnesses, the panchnama of the place
were drawn and bones, two pieces of Sari piece and
Petticoat were identified by the complainant which was
seized by way of panchnama, Muddamal was sent for
analysis in the FSL. On 9/3/2002 the statements of other
witnesses were recorded, on 10/3/2002 report of addition
Sec. 395 was given by the I.O. and other witnesses were
recorded. On 11/23/2002 also statements of witnesses were
recorded and also on 14/3/2002 interrogation of accused
no. 1 to 7 was done, panchnama of rickshaw and Metador
was carried out by the I.O., on 23/3/2002 further
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statements of complainant was recorded. On 1/4/2002
accused no 7 to 14 and 15 to 44 as they were released on
anticipatory bail, they were released by the I.O. as per the
order of the Sessions Court. On 24/5/2002 blood sample of
Idrisbhai son of deceased Aaiyeshaben was collected for
D.N.A. On 16/7/2002 blood sample of Illiyasbhai Ismailbhai
Vora brother of deceased Kadarbhai Ismailbhai Vora was
collected for D.N.A test and was sent to the FSL. He has
also done procedure for drawing map of site, thereafter as
papers of charge-sheet were ready, charge-sheet was filed
against the 44 accused before the Judicial Magistrate,
Umreth, whereas 4 accused were shown as absconding.
As the Judicial Magistrate, First Class, Umreth was not
having jurisdiction to try the case, the Judicial Magistrate,
First Class, Umreth vide order dated 29/8/2003 committed
the charge-sheet to the Session Court at Kheda.
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(3) It is admitted facts that Writ Petition was filed in the
Honble Supreme Court regarding incidents of communal
riots which took place after the Godhra train carnage,
present case was also one part. As such the proceedings of
the case was stayed by the Honble Supreme Court and on
26/3/2008 vide interim order passed by the Honble
Supreme Court, Special Investigation Team(SIT) was formed
and it was directed to the SIT to file report within
stipulated time. The Govt. issued notification of forming of
SIT on 1/4/2008, Dy.S.P., Mr. H.C. Pathak was appointed for
the investigation as SIT I.O., which was formed under the
leadership of Mr. Raghvan retired C.B.I., Director. Dy.S.P.,
Mr. H.C. Pathak took over the investigation on 11/4/2008
and as per the application of complainant and her father
recorded their statements and during that time, out of 44
accused as one accused Harishbhai Dahyabhai died his case
was abetted.
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One witness Alijibhai Ismailbhai had filed an application
before the SIT that the dead bodies of the deceased
persons in this case were thrown in step well(Vav) and well.
As such in view of the application Dy.S.P., Mr. H.C. Pathak
carried out the search operation in the Malav step well and
Malav well from 13/5/2008 to 6/6/2008 and carried out
various panchnamas. During the search operation one bone
and Muslim religious sign moon and star was found which
was ceased by way of panchnama. During search operation
on 30/5/2008 one scull was founding in Malav well and
from 31/5/2008 to 6/6/2008 various bones were found
which was ceased on each day carrying out the panchnama,
at the same time from Sikotar step well bones were found,
primary report regarding bones were also obtained and
after all the procedure adopted by the SIT, report was filed
before the Honble Supreme Court by the SIT.
(4) After report of the SIT was filed before the Honble
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Supreme Court and on 1/2/2009 stay was lifted by the
Honble Supreme Court and the case was sent for trial by
the order of the Honble Supreme Court, Special
Designated Courts were formed, Special Judges were
assigned the work of trial, Special P.P. were appointed for
each case, Witness Protection Cell was formed. As such
present case in Khambholaj Police Station vide I-C.R.
No.27/2002 was came before this Court for the trial as
Special Court.
(5) Initially as stated above, charge-sheet was filed against the
44 accused, out of which accused Natubhai Satabhai,
Ankurbhai Shapurbhai, Samirbhai Vinubhai, Rakeshbhai
Haribhai, Mohanbhai @ Sashin Rameshbhai, Nikulbhai
Ravjibhai Patel; as they were fled away, their bail bond was
cancelled and amount of surety was recovered in the Court
from the Surety and their case was separated. Whereas
accused Harishbhai Dahyabhai died before the proceeding
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came to start during the proceeding of the SIT. As such 37
accused remains present before the Court.
(6) Charge was framed against the 37 accused U/s. 143, 147,
148 r/w Sec.149 of I.P.C; Sec.302, 435, 436, 440, 451 r/w
Sec.149 of I.P.C.; Sec.307 r/w Sec.149 of I.P.C.; Sec.295, 297,
395 r/w Sec.149; Sec.120(b) r/w Sec.34 of I.P.C. and Sec.
135(1) of B.P. Act.
(7) As the accused did not plead guilty, evidence was recorded
in the case. During the course of evidence, complainant
and victim filed application U/s. 173(8) of the Criminal
Procedure Code vide Exh.211 which was rejected. As such
revision was filed being aggrieved by the complainant and
witnesses in the Honble Gujarat High Court which was also
dismissed. As such the proceedings initiated; evidence was
recorded, during the recording of the evidence, the victims
filed an application at Exh.288 and prosecution filed an
application at Exh.345, U/s. 319 to join additional accused
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and after hearing both the parties, this Court ordered for
joining of 4 accused, whose names were disclosed in the
evidence. The proposed 4 accused challenged the order of
this Court in the Honble High Court and they failed to get
any favourable order. As such the matter was again
conducted after joining 4 accused, framing the charge
against accused no. 38 to 41 and thereafter prosecution
filed their closing purshis vide Exh.454 after retrial.
(8) Prosecution has adduced following oral and documentary
evidence in this case as under:
ORAL EVIDENCE
A EVIDENCE OF PANCH WITNESSES:
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 01 Bismillakhan
Akbarkhan Malek
Panch witness of
site of incident
where bones and
ash were seized
79
02 02 Akbarmiya
Husenmiya Malek
Panch witness of
panchnama of
burnt houses
near Bismilla
Masjid
81
03 03 Mustufabhai
Umarbhai Vora
Panch witness of
panchnama of
85
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person injured
witness
04 04 Faridkhan
Jabarukhan Pathan
Panch witness of
the place where
Aaishaben andNuriben were set
to have been
burnt alive
87
05 05 Firozbhai Rasulbhai
Vora
Panch witness of
panchnama of
burnt Metador
89
06 19 Maheshbhai
Vitthalbhai Patel
Panch witness of
panchnama
regarding search
operation in
Sikotar step well
173
07 20 Virendrakumar
Pyarelal Sagar
Panch witness of
panchnama of
search operation
in Malav well
181
B EVIDENCE OF DOCTORS / MEDICAL OFFICERS / FSL
OFFICERS:
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 06 Dr. Sanjay
Krushnadas Parikh
Medical Officer
of Umreth
Referral Hospital
who treated
injured.
93
02 07 Dr. Chhaganbhai
Jinvarshah Raibarkar
Expert doctor of
examiningMuddamal bones
100
03 08 Dr. Ashish Manibhai Dr. examining 104
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for DNA test
12 17 Dr. Anilkumar
Madhukant Maheta
Forensic DNA
Assistant Director
153
13 63 Dr. Bhupendrabharti
Bhikhabhati Gosai
Expert doctor
examining bonesin year 2002
351
C EVIDENCE OF MAIN EYE WITNESSES AND VICTIMS:
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 21 Idrisbhai Abdulbhai
Vora
Eye witness and
injured witness
209
02 23 Rehanaben
Yusufbhai Vora
Eye witness /
complainant and
victim
244
03 24 Yusufbhai
Yakubbhai Vora
Father of the
complainant /
eye witness and
victim
249
04 29 Salimbhai Illiyasbhai
Vora
Eye witness 260
05 35 Firozbhai Ismailbhai
Vora Kapadwanjvala
Eye witness /
injured witness
269
06 36 Fakir Mahmad
Gafurbhai Vora
Eye witness /
injured witness
270
07 37 Firoz Ismail VoraMatarvala
Eye witness /injured witness
272
08 39 Samirbhai
Abdulbhai Vora
Eye witness 276
09 47 Razakbhai Abdul
Karimbhai Vora
Eye witness 291
10 48 Mahebubbhai
Abdulbhai
Karimbhai Vora
Eye witness 292
11 49 Alijibhai Ismailbhai
Vora
Eye witness 293
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12 55 Altafbhai
Safimahmad Vora
Eye witness 307
D EVIDENCE OF HOSTILE WITNESSES:
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 25 Karimbhai Rasulbhai
Vora
Hostile witness 254
02 26 Yasin Nurmahmad
Vora
Hostile witness 255
03 27 Yunusbhai
Ismailbhai Vora
Hostile witness 256
04 28 Inayatbhai Yunisbhai
Vora
Hostile witness 259
05 30 Mahmadbhai
Rasulbhai Vora
Hostile witness 262
06 31 Hanifaben
Sattarbhai Vora
Hostile witness 263
07 32 SafiyabanuKarimbhai Vora
Hostile witness 264
08 33 Rasidaben
Yunusbhai Vora
Hostile witness 265
09 34 Sahenazben
Nurmahmad Vora
Hostile witness 266
10 38 Samikbhai
Karimbhai Vora
Hostile witness 275
11 40 Amitbhai Karimbhai
Vora
Hostile witness 277
12 41 Gulamhusen
Rasulbhai Shaikh
Hostile witness 279
13 42 Mahmadbhai
Abdulbhai Vora
Hostile witness 280
14 43 Saburbhai
Abdulbhai Vora
Hostile witness 281
15 44 Majidbhai Allarakha Hostile witness 285
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Vora
16 50 Nurmahmad
Rasulbhai Vora
Hostile witness 296
E EVIDENCE OF WITNESSES WHOSE PROPERTY WEREDAMAGES:
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 45 Ahemadbhai
Abdulbhai Vora
Victim of
property damage
286
02 46 Safimahmad
Hasambhai Vora
Victim of
property damage
287
03 51 Ismailbhai
Abdulbhai Vora
Victim of
property damage
297
04 52 Safimahmad
Nurmahmad Vora
Victim of
property damage
301
05 53 Rajmahmad Gulam
Husen Shaikh
Victim of
property damage
302
06 54 Yusufbhai Fakir
Mahmad Vora
Victim of
property damage
303
07 56 Husenmiya
Abbasmiya Malek
Labour engaged
in excavation
process in 2008
308
08 57 Salimbhai Yusufbhai
Vora
Victim of
property damage
309
F GOVERNMENT WITNESSES.
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 18 Prafulbhai
Vamanbhai Patel
Exe. Engineer,
Irrigation Dept.
who remains
present duringprocedure on
Malav step well
163
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02 22 Dineshchandra
Thakorbhai Modi
Maintenance
Surveyor,
drawing map of
place of incident
235
03 58 SanjaykumarRamjibhai Patel
Police Constablewho has taken
photograhs of
Shiv Sadan
313
04 59 Kamleshbhai
Jaydevbhai
Brahmbhatt
Fire Officer 317
05 60 Vishalbhai
Dhulabhai Bharvad
Executive
Magistrate,
Anand Rural
322
06 66 Ramanbhai Bavaji
Parmar
Dy. Mamlatdar,
Revenue Dept.
432
07 67 Ashokbhai Tulsibhai
Patel
Mamlatdar
Anand Rural
437
G POLICE OFFICERS:
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 61 Narvatsinh
Bhupatsinh
Head Constable /
PSO, Khambholaj
Police Station
337
02 64 Keshubhai Rambhai
Bhuva
C.P.I.,
InvestigatingOfficer in year
2002
360
03 65 Himanshu
Chandravadan
Pathak
SIT I.O., Dy.S.P. 367
H FORMAL WITNESS:
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Sr.No. Witness
No.
Name of witnesses Details Exh.
01 62 Sahinben Abdul
Kadar Vora
Daughter of
deceased
KadarbhaiIsmailbhai Vora
344
I DEFENCE WITNESS:
Sr.No. Witness
No.
Name of witnesses Details Exh.
01 01 Mahendrabhai
Ambalal Patel
Owner of Shiv
Sadan as per
defence
465
DOCUMENTARY EVIDENCES :
The prosecution has filed the documentary evidence in this case
as under:
Sr.NO. Details of Documents Exh.
01 Panchnama of Ode Malav Bhagol near Bismilla
Masjid
80
02 Panchnama of place of offence opposite
Bismilla Masjid, Ode
82
03 Panchnama of the persons of the injuredwitness
87
04 Panchnama of house of Abdul Yakubbhai
Vora, recovered bones and other Muddamal
88
05 Panchnama of Metador No.GJ-7V-9534 and
Rickshaw No.GJ-7W-163
90
06 Injury certificate of injured Idrisbhai
Abdulbhai
94
07 Injury certificate of injured Firoz Ismail
Matarvala
95
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08 Injury certificate of injured Fakir Mahmad
Gafur Vora
96
09 Injury certificate of injured Firoz Ismail
Kapadwanjvala
97
10 Injury certificate of injured Abdul YakubbhaiVora
98
11 Certificate of Mr. P.J. Raibarkar, Anatomist,
Medical College
101
12 Letter dated 11/3/02 and Yadi dated 14/3/02
adduced by Dr.Raibarkar
103
13 Yadi given by Dr. Ashish Patel to the Police 105
14 Yadi given to Dr. Ashish Patel dated 6/3/02 by
CPI
106
15 Letter written by Dr. Ashish Patel to the
Scientific Officer sending sample
107
16 Report of FSL Scientific Officer to Mr. D.M.
Patel
109
17 FSL report of procedure done in Malav step
well
110
18 Yadi given by Chaudhary to Dr. Alok
Rameshwar Prasad Meena
112
19 Report of Dr. Alok Meena dated 30/5/08 113
20 Opinion of Dr. Alok Meena dated 31/5/08 114
21 Opinion of Dr. Alok Meena dated 1/6/08 115
22 Opinion of Dr. Alok Meena dated 2/6/08 116
23 Certificate of Dr. Alok Meena dated 3/6/08 117
24 Opinion of Dr. Alok Meena dated 5/6/08 118
25 Opinion of Dr. Alok Meena dated 21/10/08 119
26 Opinion of Dr. Sanjay Jivabhai Chauhan dated
6/6/08
121
27 Yadi written to Forensic Medicine
Department, Baroda regarding opinion for the
Muddamal bones
123
28 Receipt of receiving Yadi of Forensic Medicine
Department, Baroda
124
29 Report regarding bones given by Forensic 125
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Medicine Department, Baroda
30 Certified literature of Forensic Medicine
Department, Baroda
126
31 Letter and Yadi dated 21/10/08 written by SIT
to Anatomy Department S.S.G. Hospital
127
32 Report of S.S.G. Hospital as per Yadi dated
21/10/08
128
33 Report of Additional Director, FSL regarding
work done at Malav well and Malav step well
132
34 Forwarding letter and dispatch note dated
4/7/08 regarding Muddamal blood sent for
DNA test
134
35 Report of FSL, Gandhinagar 135
36 Letter regarding DNA report sent by FSL dated
6/8/08
136
37 D. N. A. report 137
38 Dispatch note sent by SIT regarding D.N.A.
examination of bones dated 24/7/08
138
39 Receipt of Muddamal by FSL, Gandhinagar 139
40 Report and letter of FSL dated 6/2/08
regarding D.N.A.
140 &
141
41 Report and forwarding letter of Muddamal
bones dated 1/1/08
142 &
143
42 Copy of dispatch note sent by SIT dated
1/11/08
144
43 Receipt of dispatch note and Muddamal 144-A
44 Letter of Medical Officer, Anand sending
D.N.A. profile of Shahinbanu alongwith blood
sampe for D.N.A. matching for bones of
deceased Kadarbhai Ismailbhai
146
45 D.N.A. profile performa 147
46 Yadi written for matching of blood sample of
Illiyasbhai Ismailbhai with Kadarbhai dated
16/7/02
151
47 D.N.A. performa of Iliyasbhai Ismailbhai 152
48 Report dated 28/5/02, Ahmedabad D.N.A. 154
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Division
49 Letter written by Ahmedabad D.N.A. Division
to Chandigadh FSL sending part of Muddamal
155
50 Receipt of Chandigadh C.S.F.L. receiving the
Muddamal and letter
156
51 Report of C.F.S.L. Chandigadh 157
52 Report of C.F.S.L. Chandigardh and FSL
Gandhinagar to the Police Station
158
53 Letter written by Dy. Director dated 13/8/03 159
54 Yadi sent to FSL dated 17/10/08 160
55 D.N.A. blood report of Kadarbhai and his
daughter Sahinbanu dated 24/10/08
161
56 Letter written by Dy. Director to SIT dated
1/11/08
162
57 Letter written to Chief Engineer Irrigation
Department by SIT
164
58 Report dated 6/6/08 regarding obtaining
Muddamal article from Sikotar step well and well
165
59 Report dated 10/11/08 written by Executive
Engineer Anand Division to Superintendent
Engineer
166
60 Report received from FSL dated 15/4/02 167
61 Letter and dispatch note written by SIT to
Director, FSL, Gandhinagar dated 19/5/08
168
62 Receipt dated 30/5/08 written by FSL,
Gandhinagar
169
63 Letter written by Dy. Director, FSL to SIT dated
21/5/08
170
64 Panchnama dated 13/5/08 of Sikotar step well 174
65 Panchnama dated 14/5/08 of Sikotar step well 175
66 Panchnama dated 15/5/08 of Sikotar step well 176
67 Panchnama dated 16/5/08 of Sikotar step well 177
68 Panchnama dated 24/7/08 of Sikotar step well 178
69 Panchnama dated 21/10/08 of Sikotar stepwell
179
70 Panchnama of Malav well dated 15/5/08 180
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71 Panchnama of Malav well dated 17/5/08 182
72 Panchnama of Malav well dated 18/5/08 183
73 Panchnama of Malav well dated 19/5/08 184
74 Panchnama of Malav well dated 20/5/08 185
75 Panchnama of Malav well dated 23/5/08 18676 Panch slip from Muddamal Article no.5 187
77 Panch slip from Muddamal Article no.6 188
78 Panchnama regarding Malav well dated
24/5/08
189
79 Panchnama regarding Malav well dated
25/5/08
190
80 Panchnama regarding Malav well dated26/5/08
191
81 Panchnama regarding Malav well dated
27/5/08
192
82 Panchnama regarding Malav well dated
30/5/08
193
83 Panch slip from Muddamal 194
84 Panchnama regarding Malav well dated
31/5/08
195
85 Panch slip of Muddamal Article No.8 196
86 Panchnama of Malav well dated 1/6/08 197
87 Panchnama of Malav well dated 2/6/08 198
88 Panch slip of Muddamal Article No.10 199
89 Panchnama of Malav well dated 3/6/08 200
90 Panch slip of Muddamal Article No.12 201
91 Panchnama of Malav well dated 4/6/08 202
92 Panch slip of Muddamal Article No.16 203
93 Panchnama of Malav well dated 5/6/08 204
94 Panchnama of Malav well dated 6/6/08 205
95 Yadi written by CPI Anand to City Surveyor 236
96 Letter written to Maintenance Surveyor, Ode
by SIT
237
97 Map of place of offence 238
98 Original complaint 245
99 Affidavit of complainant filed in the Honble 246
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Supreme Court
100 Application given by complainant to SIT 248
101 Affidavit of father of complainant filed in the
Honble Supreme Court
250
102 Copy of order regarding taking photographsin the name of Sanjaykumar Patani
314
103 Photographs of place of incident 315
104 CD of place of incident 316
105 Abstract of entry of register of Fire Fighter 318
106 Letter of proclaimation U/s.144 323
107 Notification of Executive Magistrate(Rural)
dated 1/3/02
324
108 Curfew relaxing order dated 2/3/02 passed by
the Executive Magistrate
325
109 Curfew relaxing order dated 3/3/02 326
110 Order dated 3/3/02 for relaxing curfew on 4/3/02 327
111 Order dated 4/3/02 for relaxing curfew on
5/3/02
328
112 Order dated 4/3/02 for relaxing curfew on
5/3/02 from 12.00 noon to 5.00 p.m.
329
113 Order dated 5/3/02 for relaxing curfew on
6/3/02
330
114 Order dated 6/3/02 for relaxing curfew on
7/3/02
331
115 Order dated 7/3/02 for relaxing curfew on
8/3/02
332
116 Order dated 8/3/02 for relaxing curfew on
9/3/02
333
117 Order dated 9/3/02 for relaxing curfew on
10/3/02
334
118 Order dated 10/3/02 for relaxing curfew on
11/3/02
335
119 Order dated 13/3/02 for lifting of curfew 336
120 Letter of CPI, Shri K.R. Bhuva regarding
registration of complaint
338
121 Abstract of station diary 339
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122 Xerox copy of FIR 340
123 Letter written by Community Health Centre,
Ode to Anatomy Department, Baroda
352
124 Specimen seal and covers of sending
Muddamal
354
125 Receipt of Muddamal 355
126 Letter of CPI, Anand regarding sent the
certificate
356
127 Certificate written by Anatomy Department
Baroda to CPI, Khambholaj
357
128 Rough note of Dr. Bhupendrabharti Gosai 358
129 Dispatch note of sending blood sample ofIlliyas Ismail Vora 361
130 Notification U/s.33(1) of Bombay Police Act 365
131 Order of inquiry sent by SIT Convinor to SIT
Dy.S.P., Shri H.C. Pathak
368
132 CD of work done by the SIT 369
133 Letter written SIT Officer to FSL regarding
matching blood sample of Sahinbanu
370
134 Letter written by SIT, Dy.S.P. to FSL to hand
over Muddamal to authorized person
371
135 Letter dated 9/6/08 written by SIT to keep
Muddamal in Khambholaj Police Station
372
136 Receipts of Muddamal received from Sikotar
step well
373
137 Letter written by SIT, Dy.S.P. to Khambholaj
Police Station
374
138 Copy of public notice issued by the SIT 375
139 Letter written by PSI, Khambholaj to SIT,
Dy.S.P.
376
140 Statement of showing proclaimation of public
notice place by Khambholaj Police Station
377
141 Copy of station diary of Khambholaj Police
Station
378
142 Affidavit filed by the complainant in Hon'ble
High Court in Cri. Misc. Application No.1/2011
420
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143 Affidavit filed by the father of complainant in
Cri. Misc. Application No.164/2011
421
144 Voucher of amount paid to the victim 433
145 Letter written by Mamlatdar (Rural) to PSI,
Khambholaj
438
146 Electoral roll and ration card of deceased
mentioning them to residing in Ode
439
147 Order of Dy. Mamlatdar, Anand 440
148 Order of Dy. Mamlatdar, Anand 441
149 Receipt of amount paid to Sahinbanu 442
150 Receipt of amount paid to Idrisbhai Abdulbhai
Vora
443
151 Receipt of amount paid to Fakir Mahmmad
Gafurbhai
444
152 Affidavit of Defence Witness Mahendrabhai
Ambalal filed in bail application of accused
466
Ld. Special P.P. has filed closing pursuits vied Exh.454. Thereafter
further statements of all the accused were recorded, no accused
has deposed on oath, but accused no.8 filed an application for
examining defence witness vide Exh.461. All the accused have
denied the case in toto and have stated that false charge-sheet is
filed against them due to communal enmity
After the defence witness was examined, the defence filed
closing purshis vide Exh.467. Thereafter the matter was fixed for
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argument on behalf of the the parties.
(9) Ld. Special P.P., Mr. B.C. Trivedi has orally argued the
matter and has filed written arguments on behalf of
prosecution vide Exh.472. Whereas on behalf of
complainant and victims, L.A. Mr. Mansuri has filed written
arguments at Eh.474 after seeking permission vide
6Exh.473. Whereas L.A. Mr. C. K. Patel and Mr. A. H.
Dhagat has argued the matter orally and also filed their
written arguments vide Exh.479.
This court has paid sufficient attention towards oral as
well as written arguments advanced and/or submitted
by the Ld. Advocates, appearing on behalf of both the
parties and they are discussed hereunder at the relevant
point in this judgement and therefore, at the cost of
repetition, it is not produced here.
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(10) In this case, Special Prosecutor, Mr. B.C. Trivedi and
Additional Prosecutor, Mr. A. R. Desai as well as L.A.
appearing on behalf of the original complainant and victim
Mr. Mansuri and Mr. Shaikh has cited some authorities in
support of their case. On the other hand, Ld. Advocates on
behalf of accused, Mr. C. K. Patel and Mr. A. H. Dhagat has
also cited some authorities. This court respectfully bows
down with the law laid down by the Hon'ble Apex Court of
India as well as by the Hon'ble High Court of Gujarat and
other Hon'ble High Courts. All the citations are discussed at
the relevant point in this judgement, hereunder for the
sake of convenience.
(11) The following points arise for my determination of this
case.
(1) Whether the prosecution proves that alleged 3
missing persons are dead ? If yes, whether the death
of 3 persons is homicidal death?
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(2) Whether the prosecution proves that the accused or
any of them in furtherance of common object formed
unlawful assembly with a common object of
voluntarily burning properties causing death
intentionally by fire, causing act to attempt to commit
murder and to rob the properties of the muslims
become member of unlawful assembly ?
(3) Whether prosecution proves that accused in
furtherance of common object of unlawful assembly
by using force and violence have committed rioting by
arming themselves with weapons and inflammable
items ?
(4) Whether prosecution proves that all or any accused as
a members of unlawful assembly in furtherance of the
common object have intentionally knowingly cause
death of 3 persons by burning them alive and thereby
have committed murder ?
(5) Whether the prosecution proves that all or any of the
accused have in furtherance of common object of
unlawful assembly by burning witness have attempted
to commit murder of the witness namely Idrisbhai
Vora, Firozbhai Kapadwanjwala, Firozbhai Matarwala
and Fakir Mahmmad Gafurbhai Vora ?
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(6) Whether the prosecution proves that all the accused
in furtherance of common object as a member of
unlawful assembly or any of the accused individually
has voluntarily caused hurt ?
(7) Whether the prosecution proves that in all the
accused or any of the accused have by forming
unlawful assembly committed robbery or dacoity of
the house-hold items of the victims ?
(8) Whether the prosecution proves that accused in
furtherance of the common object of unlawful
assembly of all the accused or any of the accused
have burnt movable and immovable properties of
muslim persons and caused damaged to the property
by fire and have committed the offence ?
(9) Whether the prosecution proves that all the accused
or any of the accused has committed criminal
conspiracy to commit offence punishable for death,
imprisonment for life or rigorous imprisonment ?
(10) Whether the prosecution proves that in furtherance
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of common object of unlawful assembly all the
accused or any of the accused as member of unlawful
assembly have spoken words intentionally to insult
religious feelings of muslims and have committed the
offence ?
(11) Whether the accused have committed offence by
committing breach of the notification of the District
Magistrate by arming themselves deadly weapons,
Dhariya, burning rags, lighting torch and inflammble
items ?
(12) Which of the accused are liable for committing
offence, and if yes, under which sections ?
(13) What order ?
(12) My findings to the above points are as under :
(1) In the affirmative.
(2) In the party affirmative for accused no.8, 9, 10, 11,
12, 13, 26, 29 and 35.
In the negative for other accused.
(3) In the affirmative for accused no.8, 9, 10, 11, 12, 13,
26, 29 and 35.
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In the negative for other accused.
(4) In the affirmative for accused no.8, 9, 10, 11, 12, 13,
26, 29 and 35.In the negative for other accused.
(5) In the affirmative for accused no.8, 9, 10, 11, 12, 13,
26, 29 and 35.
In the negative for other accused.
(6) In the affirmative for accused no.30.
In the negative for other accused.
(7) In the negative for all accused.
(8) In the affirmative for accused no.8, 9, 10, 11, 12, 13,
26, 29 and 35.
In the negative for other accused.
(9) In the affirmative for accused no.8, 9, 10, 11, 12, 13,
26, 29 and 35.
In the negative for other accused.
(10) In the affirmative for accused no.8, 9, 10, 11, 12, 13,
26, 29 and 35.
In the negative for other accused.
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(11) In the affirmative for accused no.8, 9, 10, 11, 12, 13,
26, 29 and 35.
In the negative for other accused.
(12) As per final order.
(13) As per the final order.
(13) Before entering into the appreciation of evidence and
deciding all the points in the case first and foremost, it
is desirable to discuss and decide the point regarding
F.I.R.
(14) As per the case of prosecution complainant, Rehanaben
Yusufbhai Vora has lodged the complaint in Sureli Camp
before the C.P.I. Mr. K.R. Bhuva which is produced during
the deposition of the complainant at Exh.245.
(15) As regarding the authenticity of the complaint and
reliability of the complaint and relying upon the evidence
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of complaint and also witness and it is argued by the Special
Prosecutor that there is delay of filing the complaint, but it
cannot be said to be fatal aspect to the entire case of
prosecution. FIR was lodged on 5/3/2002 at the relief camp
at village Sureli, no family members of the complainant or
any other neighbour remained present in Ode after the
incident happened. All the inmates of the locality were
scattered, some going to Anand at the house of their
relative, some going to Bhalej village. Whereas witnesses
including the complainant were so scared and confused
that they did not think of any thing, much less lodging the
complaint. As per the deposition of Rehanaben, it is
specifically mentioned that on 5th March, 2002 police came
to the Camp and took her compliant and at the time of
giving complaint, Firoz, Idris and her elder paternal uncle
were under treatment in Umreth Hospital and she was too
scared who were the police people is not known to her. SIT
has also recorded her statements complaint was read over
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which was true. It is argued by Mr. Trivedi Special
Prosecutor that it is clear when the complaint was recorded
at Sureli Camp Rehanaben was alone, her cousin and her
father have left at Umreth for medical treatment of injured
namely Idrisbhai, Firozbhai Matarvala and Firozbhai
Kapadwanjwala, Fakir Mahmad and Abdulbhai. The question
of Bai Rehana manipulating the complaint being tutored is
out of place. The complainant was victim of the
circumstance, she had not contacted anybody for lodging
the complaint nor she has narrated the incident to anybody
because atmosphere was totally charged with distrust and
animosity.
As regarding the cross examination of the Rehanaben is
concerned in respect of late complaint filing FIR, also there
is nothing substantial which can cast any doubt regarding
lodging of the complaint. The question regarding possibility
of being tutored by somebody is total denied. The witness
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have escaped from the scene of offence, in such a way that
they only priority was to save their lives. Some of them even
came to know subsequently as to who has died and who
were injured. As such based upon these arguments, Mr.
Trivedi has submitted that FIR cannot be doubted in any
manner and considering circumstances is justified.
Moreover so far as FIR has been sent to the Magistrate, it is
sent late, but considering circumstances, so many
communal riots have taken place, naturally police staff must
be under the tremendous pressure. These circumstances are
such in which nobody can be blamed for late sending of
the complaint to the J.M.F.C., Umreth. It is submitted by Mr.
Trivedi that late FIR and late sending sending of the FIR to
the J.M.F.C. are justified because of circumstances were so
unusual and extraordinary.
(16) The prosecution has relied upon the following citation on
the point of delay sending FIR to Judicial Magistrate, First
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Class.
(1) Balram Singh & Anr. V/s. State of Punjab, AIR 2003
S.C. 2213.
(2) Himmat Sukhadeo Wahurwagh & Ors. V/s. State of
Maharashtra, AIR 2009 S.C. 2292
(17) On the other hand L.A. Mr. C.K. Patel has argued on the
point of late FIR and has submitted that the unfortunate
incident has occurred on 1/3/2002 at 1.30 p.m. till evening.
As per the case of prosecution and the complaint if lodged
after 4 days on 5/3/2002. Before 5/3/2002 the complainant
nor any of the injured witness had stated any ingredients of
the incidents or the details of assailants before the police or
in front of any person nor police has filed any complaint on
behalf of the State considering incident. As such
deliberately though the complainant and the witnesses were
having opportunity of declaring the incident before the
police, but have not done so and have adopted unnatural
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conduct. As such concocted and got-up complaint has been
filed by the complainant which cannot be believed in any
manner.
Mr. C. K. Patel has relied upon in the case ofKailash Gour
& Ors. V/s. State of Assam, reported in 2012 Cri.L.J.
1050 S.C.
(18) Upon hearing submissions of both the sides regarding
significance or insignificance of FIR, in the evidence it is true
that unfortunate incident has occurred on 1/3/2002 and FIR
was lodged on 5/3/2002, it is also a fact that in the Camp
when the complainant had gone for shelter has not uttered
single word of the incident before anybody. As it appears
from the evidence of Rehanaben at Exh.244 apparently and
admittedly the complainant had gone to the Camp on
3/3/2002 in the morning. On 4/3/2002 injured were taken
to hospital and so it appears that the injured were also
scared till 4/3/2002. As considering the evidence of Firoz
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Kapadwanjwala and Firoz Matarwala as appears from the
PW-35 at Exh.269 and PW-36 at Exh.270. That both the
witnesses were rescued by the police, however as per the
say of the Firoz Kapadwanjwala it was Military police, it
makes no larger difference, but it is fact that they were
rescued by the police. Both the witnesses have narrated the
facts before the police during their journey to Sureli. Now
regarding the aspect of narrating the question before the
police and there were opportunity to the witnesses is
concerned, I am of the opinion that the incident which has
occurred on 1/3/2002 was not a simple incident, but was
communal riots which broke out after the incident of
Godhra carnage. The atmosphere prevailing at that juncture
was of disharmony and distrust only. The complainant and
the witness who were witnesses of dangerous incident, must
have been suffering from shock, panic and confusion. The
priority at that time was to save their lives and not to go to
the police station to narrate incident what was happened.
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Naturally the complainant who was hardly 18 to 19 years
old young girl and witnesses who were also same age group.
When facing such atmosphere of commotion, panic, scary
atmosphere, they would have gone in such a situation in
shock and must have been stunned and at that time they
would have not gone for filing of the complaint or
disclosing the incident to other member in the Sureli Camp,
which cannot be denied that the complainant was alone on
4/3/2002 as it appears from the deposition of Mr. K.R.
Bhuva and according to him, he rescued two persons also
has also not cared to take down the incident or interrogate
question injured person even if injured have not told them
or opted to go to for treatment, Mr. K.R. Bhuva has not
taken care to take them to the hospital. Mr. K.R. Bhuva has
not come forward to be a complainant of alleged incident
on 3/3/2002 even in the evening nor has come in the
defence of the witnesses, no police personnel present in the
Camp and the suggestions put before the witness regarding
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police personnel in Sureli Camp before 5th March 2002 are
denied. It is also pertinent to note that the complainant or
any other witnesses have never discussed with each other or
has got any opportunity to frame the facts of the complaint
as it appears from the deposition of Rehanaben, Firozbhai
Matarwala, Firozbhai Kapadwanjwala, Fakirbhai and
Idrisbhai, they have not discussed the question with
anybody or inter-se, so there is no question of framing of
any accused wrongly or framing of the facts of complaint
wrongly. It is also pertinent to note that Hon'ble Apex
Court has also taken cognizance of the situation prevailing
in Gujarat after Godhra carnage and have some distrust
towards role of police personnel and for that reasons SIT
was constituted. As such ordinary person knowing nothing
regarding legal action who has concerned to save his life
and to survive in a atmosphere of disharmony cannot be
said to immediately rush to the police first file the
complaint rather than to save one's own live. So in my
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opinion considering circumstances and atmosphere
prevailing at the particular juncture, merely filing of the FIR
if late cannot be said to be a entire cause for considering
the entire prosecution version of the incident to be false
and as such delay of FIR is not fatal considering the facts of
this case to the prosecution. In the case ofKailash Gour V/
s. State of Assam, reported in 2012 Cri. L.J. 1050 S.C.,
wherein it is laid down by the Hon'ble Supreme Court
that Delay in lodging F.I.R. - Murder alleged to have
taken place in incident of attack by mob on house of
deceased in disturbed area Police though reaching on
spot immediately neither recording statement of
witness nor recording F.I.R. - F.I.R. Recorded only after
statement was given by witness owner of house naming
accused only after deliberations with elders of his
community No explanation given for delay in
recording F.I.R. - Evidence of solitary eye-witness that
he had seen murders in moon light doubtful due to
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presence of fog Medical evidence not supporting
prosecution case Motive of crime alleged to be
demolition of mosque also doubtful as witness, owner
of house had land dispute with some accused Held
accused entitled to benefit of doubt.
Mr. C. K. Patel has placed reliance upon the above cited
ruling considering the facts of the case cited as there were
no such compelling circumstances which have come on
record in the present case and so the delay which was not
satisfactorily explained was found to be a fatal to the
prosecution. Whereas herein this case conditions of the
witness and the complainant can be made out from the
incident which has happened all the inmates have left the
locality, no near relative, except the complainant was
present in Camp, the 5 persons who were injured, who were
waiting for their treatment, naturally first priority was to
take treatment as they were burnt in the incident. As such
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considering top priority of their lives, if they had not filed
the complaint in time, it cannot be said that the entire
incident has concocted.
(19) As in the case of (1) Balram Singh & Anr. V/s. State of
Punjab, reported in AIR 2003 S.C. 2213, wherein Hon'ble
Supreme Court has held that F.I.R Delay in sending
jurisdiction Magistrate Whether fatal incident
occurred at 8.30 p.m. on 5/5/1990 Police station
situated at distance of 40 Kms from place of incident
Considering law and order situation in State during
relevant period nothing unusual in police reaching
hospital aroun 9.00 a.m. in morning on 6/6/1990 F.I.R.
Recorded sent to jurisdiction Magistrate which reached
him around 0305 hrs. on 6/5/1990 There is delay in
preparing the F.I.R. - Delay of sending the same to the
jurisdictional Magistrate by itself, would not in any
manner weaken the prosecution case It has to be
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judged keeping in mind creditworthiness of ocular
evidence.
(2) In the case of Himmat Sukhadeo Wahurwagh
& Ors. V/s. State of Maharashtra, reported in the case
of AIR 2009 S.C. 2292, wherein Hon'ble Supreme Court
has held that Evidence showing that accused by their
act had let loose reign of terror and were looking for
more members of family of deceased Delay in filing
F.I.R. And conducting investigation in circumstances
becomes insignificant Conviction of accused not
liable to be interfered with.
(3) As in the case ofRamchandra & Anr. V/s. State of
Punjab, reported in 1982 Criminal Law Journal 36, there
was a delay in lodging the complaint and delay was
caused to anxiety of relative to provide medical aid to
the injured persons before filing of FIR. It was
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observed that delay must be deemed to be well
explained.
Keeping in the mind ratio laid down in the cited ruling in
my opinion no doubt there is a delay in filing FIR, but
considering circumstance the atmosphere prevailing at the
time the delay is not fatal to the prosecution.
So far as FIR is sent to the Magistrate U/s. 157 of the
Criminal Procedure Code is sent late which cannot be
denied. Xerox copy of FIR at Exh.340 reveals that the FIR is
sent to the Magistrate at a later stage. Looking to the
circumstances prevailing at the relevant time communal
riots had taken place under the various villages which were
under the jurisdiction of the I.O., there were communal
riots in Khambholaj, Vasad, Sarsa, Mogar, Mogari and
Vallabh Vidyanagar. As such there was more than six police
station involved in the bringing the situation in control at
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the relevant time and so the staff must would have under
tremendous pressure, hence mere late sending the
complaint to the Judicial Magistrate, First Class at Umreth
can never become the ground for doubting the complaint,
considering circumstances at the relevant time unusual and
extraordinary nobody can be blamed for the delay of
dispatch the complaint to the Magistrate and once the
complaint was lodged recorded in the station diary offence
registered than, only the delay in sending the complaint to
the Magistrate cannot have any importance upon the
impact of the incident occurred and narrated in the
complaint. Hence, in my opinion delay in filing the
complaint and sending it to the Magistrate is not fatal to
the prosecution in any manner.
POINT NO. 1
(20) The most important aspect in this case is that the accused
have charged with the case of causing death of 3 persons
by burning them alive; namely Nooriben, Aaiyeshaben and
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Kadarbhai. No doubt it is unique case in which first of all,
whether 3 persons are dead is to be established and
thereafter, whether the death of the 3 persons is homicidal
is to be seen. It is unique case that in the entire case no
dead body of any person is recovered. The defence has
challenged Corpus of murder, there is no recovery of
dead body nor as per the say of defence Muddamal bone
which are recovered are proved satisfactorily to be human
origin nor any DNA test has been found in this case. As
such defence has come with the case that 3 persons who
have been alleged to be murdered are missing and not
dead.
(21) Whether in the case of murder identification of Corpus
Delictiis necessary is to be seen. The following citations are
relevant on the point of identification of Corpus Delicti
relied upon by the prosecution in the case of (1) State of
West Bengal V/s Mir Mohammad Omar, reported in AIR
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2002 SC 2988, (2) Sevaka Perumal V/s. State of Tamil
Nadu, reported in AIR 1991 S.C. 1463, (3) Badshah V/s.
State of U.P., reported in 2008 AIR S.C.W 1359 and (4)
Mani Kumar Thapa V/s. State of Sikkim, reported in
AIR 2002 SC. 2920.
(22) On behalf of the defence L.A. Mr. C.K. Patel has relied upon
the case ofHari krishna V/s. State of Haryana 1990 Cri.
Law Journal 385 (P & H).
(23) Now appreciating this point first of all, it is required to be
seen that the persons alleged to have been killed namely
Nooriben, Aaiyeshben and Kadarbhai are dead or missing.
No doubt as in this case, no dead body is recovered, no
P.M. is conducted, there cannot be direct evidence
regarding the death of 3 persons. But for appreciating point
of death circumstantial evidence and other ocular evidence
is to be seen in this case, panchnama of the scene of
incident is carried out which is not denied. Panch witness
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Bismillakhan Akbarkhan Malek has been examined at
Exh.79, he has stated in his evidence that 5 to 6 years
before the date of evidence on 6
th
he was called by C.P.I.,
Mr. K. R. Bhuva at Ode Malav Bhagol, there was one
another officer who he does not know, the place was
situated near the residence of Abdulbhai which was open
place, there was heap of ash and some bones of ash were
seized from the place, which were taken in a box, which
was sealed and panchnama was drawn which was exhibited
at Exh.80. In the same way panch witness Faridkhan
Jabarukhan is examined at Exh.87, he has stated in the
evidence on 8/3/2002 police has called him at Ode, Malav
Bhagol as a panch at 6.00 p.m. In evening, Mr. K. R. Bhuva
and other police persons were present, complainant
Rehanaben was present, panch had gone to house no.839
which was of Aaiyeshaben consisting of 2 rooms and one
open Osari. FSL Officer searched the ground with iron rod
and found 200 grams of bones on which there was ash and
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also found one piece of almond colour flower design Sari
and one red colour piece of Petticoat, which was identified
by the complainant Rehanaben as is of Aaiyeshaben. In the
other house no.841, there was nothing found except ash, as
such from the evidence of panch witness Bismillakhan
Akbarkhan Malek and Faridkhan Jabarukhan Pathan, it is
undisputed that charred bones were recovered.
(24) The aspect of collection of bones is also supported by the
say of the Dr. Dhananjay Maganbhai Patel, Scientific
Officer, Mobile who is examined at Exh.108, he has stated
in his evidence that on 6/3/2002 at morning 5.50 a.m., he
departed from Anand towards Ode and went to the place
situated near Manu Bhagats house open place, Mr. K. R.
Bhuva met him, there was a heap of house hold kits burnt
doors, he searched minutely from the heap, pieces of
bones were recovered which was handed over to the I.O.
for sending it for analysis for further procedure.
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In the same way, Dr. D.M. Patel has stated that on
8/3/2002 he had gone to Malav Bhagol at the residence of
Abdulbhai Vora, Rehanaben was also present, they found
some flesh, some bones, burnt piece Sari, burnt piece of
Petticoat which was seized and sent for analysis and from
the residence of Nooriben ash was collected which was sent
for analysis.
As regarding this say Rehanaben has also submitted same
aspect of collection of bones recovery burnt Sari, Petticoat
and lump of flesh. Mr. D. M. Patel as well as Rehanaben has
identified the Muddamal before the Court.
(25) Now regarding aspects of findings of bones is concerned,
bones are examined by Anatomist Dr. Chhaganbhai
Jinvarshah Raibarkar, Anatomist of Karamsad Hospital
examined as PW-7 at 7Exh.100. Dr. Raibarkar has
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specifically stated that on 11/3/2002, he received Yadi from
the Ode Medical Officer and also received a letter dated
10/4/2002 alongwith letter, he had received sample of box
A & B. Bones which were received by him were examined
sample-A consisted of broken & burnt bones and sample-B
consisted of broken pieces of bones. He identified bones in
box-B which were mandibular fossa and part external
auditorymeatus of skull, piece of skull cap, part of
zygomatic bone, Hamate bone of hand, piece of mandible,
middle phalanx, terminal phalanx, piece of spine of cervical
vertebra, navicular one of foot. As per the say of Dr.
Raibarkar all the pieces were identified and appeared to be
of human, as sex cannot be decided and whether belonging
to some persons also cannot be determined, DNA facility
was not available. Dr. Raibarkar was a expert in Anatomy
from 1965 1967 report of Dr. Raibarkar is produced at
Exh.101, whereas letter dated 11/3/2002 is produced at
Exh.202. It is unfortunate as it appears from that letter
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alongwith burnt bones piece, Sari and Chaniyo was also
sent to the FSL, but nothing has come on record which
shows in efficiency of I.O. From the cross examination of
the Dr. Raibarkar, it is admitted that the size of the bones
were not mentioned by the doctor, the possibility of
extracting red and yellow bone marrow from the bones
which are not burnt is answered that if bones are long than
only it can be extracted, hence no such extraction is made.
No doubt Dr. has admitted that as per anti human serum
test, piece of bone precipitation test is done, whether
bones are of human origin can certainly made out. It is also
admitted Dr. Raibarkar that he has not conducted this test,
however, the doctor has suggested DNA test. Considering
evidence of Dr. Raibarkar, he is expert Anatomist, nothing
has come on record in the cross examination that bones
were of any animal. These bones which were identified by
the Dr. Raibarkar were found at the instance of panchnama
drawn at Exh.88, because piece of Sari and Petticoat was
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also sent alongwith Yadi. As such bone which was found at
the residence of Abdul Vora pieces were of human origin
as per the say of Dr. Raibarkar which cannot be disbelieved.
Naturally in small village of Ode nothing has come on
record that the persons who are missing were having
animals in their houses. No doubt there may be different
method to analyze and to find that bones are of human
origin, but Expert Dr. Raibarkar cannot be challenged
merely on the gound that he has not resorted to
alternative method.
(26) As regarding the aspect of 3 persons death is concerned,
one more important witness who has been examined at
Exh.351 in this case is Dr. Bhupendrabharti Bhikhabharti
Gosai, as per his say in 2002 he was serving in Vadodara
Medical College in Anatomy Department. On 26/3/2002
letter of Medical Officer, A. M. Patel serving in Community
Health Centre(CHC), Ode were received on 27/7/2002
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alongwith one cardboard and forwarding letter specimen
seal was received. The Head of Deaprtment(HoD) gave him
sealed box and forwarding letter of CHC, Ode along with
specimen seal. Dr. Deepak Vyas, HoD wrote a letter to
Khambholaj Police Station regarding the receipt of box
which produced at Exh.352 . As per the letter, it was asked
that whether bones sent are of human origin and of one or
more person and also to describe sex and age and to get
the bones DNA analysis from Baroda FSL and to sent the
report. Moreover Dr. has also received dispatch
note(Ravangi Nodh) which is produced at Exh.353, the
specimen seal, sample and letter sent alongwith it is
produced at Exh.354. The receipt of the Muddamal is
produced at Exh.355. The Dr. has also received letter from
C.P.I on 24/5/2002 sending the certificate of the Muddamal
is produced at Exh.356. As per the say of Dr. Gosai on
30/5/2002, he alongwith his colleague Dr. Saroj Kumar
inspected Muddamal sample Mark -A in which there was
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plastic bag containing pieces of bones, (1) part of right and
left complete burnt patella, (2) small pieces completely
charred metatarsal bones, (3) small piece of trochlear part
of completely burnt humerous, (4) small piece of
completely burnt unidentified bones. As per the say of Dr.
unidentified bones sent him were of human origin and age
and sex cannot be determined. Moreover bones were of
single or more than one person was also not determined.
The Dr. had given the certificate in his hand writing on
30/5/2002 which is produced on record at Exh.357. As per
the say of Dr. nobody had come to collect the Muddamal,
as such in this case, Muddamal was destroyed as it appears
in the deposition of panch witness at Exh.79. Dr. has also
deposed that he has made some notes while giving
certificate in his hand writing and he and Dr. Sarojkumar
has signed on notes which are produced at Exh.358.
(27) Now in the cross examination of Dr. by L.A. Mr. C. K. Patel,
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nothing has come on record adverse which say that the
bones are not received nor doctor has inspected bones
and has given the certificate. Merely procedure of seal as
well as regarding correspondence has been challenged,
which does not shake the version of doctor regarding the
inspection of bones.
As in the cross examination by L.A. Mr. A H. Dhagat, it
is admitted that FSL and Anatomy are two different subject
to opine regarding bones, Anatomy is resorted. Dr. has
admitted that he has opined by perception, he has not
used any scientific chemical method though FSL is having
facility of DNA finger printing and chemical analysis. It is
admitted that if chemical analysis of ash of burnt bone is
done, the bones are of human nature can be made out
truly. The Dr. has advised for DNA test, but no facility was
available with the doctor. Dr. has himself stated that on
the basis of his expertise and visual perception the bone
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are of human origin. As placed before the doctor that if
he would had DNA facility, he would have opted for DNA
test, Dr. has replied that DNA is not his subject, hence he
has not called for DNA test. It is admitted fact that doctor
has opined on the basis of his visual perception and
presumption and his expertise.
(28) Considering evidence of Dr. Gosai nothing adverse has
come on record regarding his expertise which goes against
him. He is an Expert Anatomist. He has opined on the basis
of his broad expertise and visual perception, that the bones
received by him were of human origin, then there is no
reason to disbelieve the version of Expert Anatomist. No
doubt, he has not opted for any chemical or scientific
method as that does not come in his purview to do
chemical analysis of the bones, he being expert of bones
i.e. human Anatomist, he has given his opinion regarding
human bones on the basis of his knowledge and expertise
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and experience. As such though alternative method which
must be in existence and the Dr. has not gone for that
alternative method, as it was not in his purview the opinion
given by the doctor Gosai cannot to be said to be a perfect
opinion, this argument on behalf of the defence is not
sustainable. As such evidence of Dr. Gosai on the point of
bones are received by him of human origin is reliable,
trustworthy and believable.
(29) It is admitted facts that in this case that DNA of the
deceased was not found out nor matched with any of the
heirs of deceased. As regarding point of DNA analysis and
DNA matching is concerned, Dr. Anilkumar Madhukant
Maheta is examined at Exh.153. That on 28/5/2002, he
received one sealed box one blood phial of one parcel-A in
which there was one piece of cloth recovered from Ode
Malav Bhagol which was identified as A-1. As A-2 burnt
tissues and piece of bones and A-3 was ash found from
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Noori Gafurbhais house and parcel-B was blood sample of
Idrisbhai Abdulbhai Vora, DNA finger printing was done
and in sample A-1, A-2 and A-3, no blood was found.
Whereas in sample A-2 was completely burnt, no DNA was
extracted, nor any DNA was extracted from sample A-3.
DNA was extracted from sample-B blood of Idrisbhai. As
there was no DNA extracted from any other DNA extracted
from Idrisbhai blood was not able to be matched. As such,
as per the say of doctor DNA was not extracted and so
DNA was not matched.
As per the say of Dr. Anilbhai Mehta on 20/7/2002, he has
received two parcels from Ahmedabad FSL in which there
were pieces of bones, identified as bones of deceased
Kadarbhai and other sample containing 5 ml. blood of
Iliyasbhai Ismailbhai Vora who was brother of deceased
Kadarbhai. One part of both the samples was sent to
Chandigadh CFSL for correct opinion. The report of
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Chandigadh CFSL was received on 16/7/2003. As per the
report of Chandhigadh CFSL piece of bones was of brother
of Iliyasbhai Ismailbhai Vora was not possible to be of
brother of Iliyasbhai Ismailbhai Vora. Report of Chandigadh
CFSL is produced at Exh.157. The letter of receiving the
Muddamal sample is produced at Exh.156. Report of DNA
matching of Idrisbhai and bones sample of A-2 is produced
at Exh.154 and the letter to CFSL Chandigadh sending
sample of bones and blood phial of Iliyasbhai Ismailbhai is
produced at Exh.155. A letter written by Dr.Maheta on
8/8/2003 with his report is produced at Exh.158. A letter
of Dy. Director S.L. Vaya under which report at Exh.157 and
158 is produced produced at Exh.159.
(30) The sample of blood of Iliyasbhai Ismailbhai Vora collected
by Dr. Umaben Jadavbhai Pipliya who is examined at
Exh.150, she has stated that on 16/7/2002 Iliyasbhai
Ismilbhai Vora was sent with police Yadi on 17/7/2002
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alongwith him Majidmiya Muradmiya and Safimiya
Mahmadmiya Malek accompanied him for his
identification. She has collected 5 CC of blood prepared
DNA profile perform of Kadarbhai alonwith the signature
of the witness Iliyasbhai Ismailbhai Vora. Yadi is produced
at Exh.151. DNA profile performa is produced at Exh.152
and DNA matching procedure was done by Dr. Anilkumar
Madhukant Maheta whose deposition is discussed earlier.
(31) It is pertinent to note that in 2002 after constitution of SIT
DNA finger printing procedure has been again resorted by
SIT regarding which blood sample of Shahinbanu Yasinbhai
Vora and deceased Kadarbhai Ismailbhai has been collected
by Dr. Arvind Jethabhai Dalwadi, who is examined at
Exh.145. He has stated in his deposition that on 7/7/2008 at
1.15 p.m.. He received a Yadi from SIT, Dy.S.P., Shri H. C.
Pathak for collection of blood sample of Shahinbanu
Yasinbhai Vora alongwith the prescribed form, two
photographs of Shahinbanu alongwith Mahmad Hanif
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Hasan Vora, Iqbal Abdulbhai Vora also came who
identified Shahinbanu and as per the procedure he
collected the blood of Shahinbanu and sealed the phial
filled up the DNA profile performa. Yadi is sent produced
at Exh.146, whereas DNA performa is produced at Exh.147.
(32) Blood sample of Shahinbanu for DNA finger printing which
was examined by Dr. Nikunj Narhari Brahmbhat alongwith
the second part of sample bones which was sent to
Chandigadh CFSL, alongwith report of CFSL Chandigadh. As
per the test conducted by Brahmbhatt, it was found that
Sahinbanu was not biological daughter of Kadarbhai
Ismailbhai from whose bone DNA was extracted. The report
was sent to the SIT which is produced at Exh.137.
(33) From the evidence of FSL Officer, it appears from the
bones of Aaiyeshaben, no DNA was extracted, which not
matched with the blood of Idrisbhai. Whereas CFSL
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Chandigadh report is concerned recovered bones of pieces
of was not of sibling of Kadarbhai Ismailbhai Vora and at
the same time in the year 2008 when blood sample of
Shahinbanu is sent for DNA finger printing, though DNA is
extracted from the Sahinbanu is not biological daughter of
Kadarbhai. Whereas ash which was recovered from the
house of Nooriben, no DNA was extracted. As such from
the entire evidence the facts which emerges on record are
that bones which are found at the time of panchnama
which are sent to Anatomist inspection are of human origin
which cannot be denied. But bones of Nuriben,
Aaiyeshaben and Kadarbhai is not determined, as DNA is
not turned positive. However, it goes without saying yet the
case is of death of 3 persons, as all the 3 persons are not
yet found out alive in any way, in any manner and in any
place. Because, before the incident all those 3 persons were
alive, they were seen by the witnesses that Aaiyeshben and
Nooriben have entered into the house which was set on
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fire by the mob. Bones are recovered from that place
allegedly one person has been burnt to death, as per the
prosecution case near the open chowk, where Jayeshbhais
residence is situated. Even for the sake of argument, it is
not a place, as per prosecution and if it is a place near
Bismillah Masjid, near the Cabin of Abdulbhai and if bones
are recovered from that place rather than the place at
Exh.80 then also death of third person is proved to have
taken place. It is an admitted fact that incident has
occurred on 1/3/2002 at 1.30 p.m. to 1.45 p.m. Till today
more than 10 years have been passed or till the date of
evidence in the court 8 years had passed, no where has
come on record that any person in the village have seen 3
alleged dead persons to be alive or moving in the village or
any other place, they have been seen. So they are not in
existence more than 7 years.
On the other hand, it has come on record that heirs of
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deceased persons have received their compensation of
death not as missing persons, but as deceased person.
PW-66 Ramanbhai Bavaji Parmar examined at Exh.432 has
stated that in the year 2002 in riots affected person whose
property was damaged and who had expired compensation
was to be paid to the heirs of the deceased and to the
injured persons also in Ode village. In Ode village Malav
Bhagol 3 persons who were died namely Nooriben
Gafurbhai Vora, Abdul Kadar Ismailbhai Vora and
Aaiyeshaben Abdulbhai Vora. The amount of compensation
was paid by cheque for the death; Nooribens amount of
compensation was paid to Fakir Mahmmad Gafurbhai Vora,
Abdul Ismail Kadars Vora amount of compensation was
paid to Shahinben Abdul Kadar and Aaiyeshaben Abduls
amount of compensation was paid to Idrisbhai Abdulbhai
Vora and vouchers were signed which were produced at
Exh.433.
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In the cross-examination, it is admitted that no
documentary evidence regarding their death has been
produced. No documentary evidence regarding their injury
and death in Ode Nagar Palika is produced. The entire
proceedings were done by the Collector and Mamlatdar,
Anand. In the cross-examination of the witness and from
the entire evidence, nothing adverse come on record,
which can be said to affect the deposition of the witness.
(34) PW-67 Ashokbhai Tulsibhai Patel, Mamlatdar Anand Rural,
who examined at Exh.437, he has also stated that in the
year 2002 in communal riots, who were paid compensation,
he has brought on record of the same. Yadi was sent
regarding deceased by the Dy.S.P., Vabang Zamir. 27
persons list were examined. Whereas Executive Magistrate
received list of 37 persons in the list of Mamlatdar Anand
Rural, names of Abdulkadar Ismailbhai, Nooriben
Gafurbhai, Aaiyeshaben Abdulbhai were shown as missing.
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Whereas in the report of Dy.S.P., they were referred as
missing at 25 to 27. The list of missing persons is produced
at Exh.438. To ascertain the existence of the persons in
Ode. Copy of ration card and electoral roll is also obtained
at the relevant time which is produced at Exh.439 alongwith
the main Yadi. On 22/10/2002, Dy. Mamlatdar issued an
order to pay relief amount to the deceased and missing
persons of communal riots in which at no.19 aid to
Nooriben was to be given to his son Fakir Mahmmad Gafur.
The said order is produced at Exh.40. On 22/11/2002 Dy.
Mamlatdar Office issued an order alongwith the details to
pay aid amount to deceased and missing persons of the
communal riots in which is at no.5 aid Abdulkadar Ismail
was paid to his daughter Shahinben as natural guardian
Aminaben Ismailbhai at no.6. Aaiyeshabens aid was paid to
Idrisbhai Abdulbhai Vora. Order is produced at Exh.441.
The receipts of payment of amount to all the 3 persons
heirs was signed which is produced at Exh.442, 443 and 444.
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(35) In the cross examination of said witnesses, nothing has
come on record which can be said to be adverse against
the evidence of all the witnesses. It is admitted facts that
no death certificate has been produced to ascertain the
death in record It has been tried to brought on record
through cross examination that whatever aid has been
given by the Government is not ascertained as to given to
the deceased or missing persons. The defence has tried to
bring the case of 3 persons are missing and not death. But
considering the evidence on record, no doubt in the case
of mass communal riots where persons are burnt alive to
death and the dead body is not recovered only bones are
recovered. The defence has tried a lot to show that
persons are not dead, but 3 persons are missing till today.
But it is impossible to believe the say of defence
considering the evidence on record. If naturally
prosecution has proved case of missing persons is of dead
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to various aspects by ascertainment of the bones by way of
payment of cheque to the family of the deceased. When
persons are missing for more than 7 years, they were not
being heard since more than 7 years and where nobody has
come forward during these years, that the 3 persons
alleged to have been died are alive. Then as per Sec.108 of
Indian Evidence Act, burden of proving that persons is
alive who has not been heard for 7 years is shifted to
person who affirms it.
Section 108 States as under : Provided that when the
question is whether a man is alive or dead, and it is
proved that he has not been heard of for 7 years by
those who would naturally have heard of him. If he
had been alive, the purpose of proving that he is alive
is shifted to the person who affirms it.
Section 108 presumption of death will arise if a person
is not heard for 7 years. This presumption extends no
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further. In short the Sec.108 provides that the person is
unheard for 7 years, there shall be presumption of
death.
There is nothing on record which can ascertain during
these years after the lapse of 10 years, 3 persons who are
not found or alive or were seen some way. As such it
create no doubt in the mind of this Court that all the 3
persons who allegedly to be missing are dead.
(36) Now next aspect which is to be considered that whether
death of 3 persons is homicidal ? It is fact that 3 persons
were found alive before the incident had occurred. As
incident broke out from the same day, all 3 persons are
missing. Bones of human origin which are found at the
place of incident. From the panchnama at Exh.88 there are
clothes and bones found. It is a place where houses were
set on fire and so persons have died is an admitted fact on
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record. Naturally question which is occurred is not a
question which can be primary said to be clear incident of
murder, as no dead bodies are recovered, only on the
basis of bones 3 persons are found to be dead. Naturally 3
persons who are died have not died that of accident. No
where in the entire case, there is claim of accidental fire or
any accidental death of the deceased nor in the entire case
there is claim for natural death of 3 persons, nor is there
any claim for case that the persons have committed suicide
during or after the incident. It is clear case in which 3
persons have met their death and that death is due to fire,
as houses were set on fire, they are burnt alive. And so, it is
case of homicidal death which cannot be denied.
(37) Now as regarding the main point, whether in this case dead
body has not found it can be said that persons who have
died have not met of homicidal death or it has not case of
murder.
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(38) As in the case of Mani Kumar Thapa V/s. State of
Sikkim, reported in AIR 2002 SC 2920. Wherein it is
held that in case of trial for murder, it is not
absolutely necessary nor an essential ingredient to
establish Corpus delicti. Referring to the case of
Sevaka Perumal and Anr. V/s. State of Tamil Nadu,
reported in AIR 1991 S.C. 1463. Honble Supreme Court
in case of Mani Kumar Thapa has observed It is a well
settled principle in law that in a trial for murder, it is
neither an absolute necessity nor an essential
ingredient to establish corpus delicti. The fact of the
death of the deceased must be established like any
other fact. Corpus delicti in some cases may not be
possible to be traced or recovered. There as a number
of possibilities where a dead body could be disposed of
without trace, therefore, if the recovery of the dead
body is to be held to be mandatory to convict an
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accused, in many accuse would manage to see that
the dead body is destroyed which would afford the
accused complete immunity from being held guilty or
from being punished. What is therefore required in law
to base a conviction for an offence of murder is that
there would be reliable and plausible evidence that the
offence of murder like any other factum of death was
committed and it must be proved by direct or
circumstantial evidence albeit the dead body may not
be trace.
(39) In the case of Badshah and Ors. V/s. State of U.P.,
reported in 2008 AIR SCW 1359; wherein Hon'ble
Supreme Co