VARIYAMSINGH KARTARSINGH BHATIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals are preferred from the judgment and order dated 23.2.2005 in Sessions Case No. 74 of 2003 wherein the three appellants in Criminal Appeal No.368 of 2005 have been convicted and sentenced for the offences punishable under Sections 147, 148 and 149 read with Section 188 of the Indian Penal Code (IPC) and the offence punishable under Section 135 of the Bombay Police Act. The State has preferred Criminal Appeal No.1067 of 2005 for conviction of the respondents for the charge of murder under Section 302 read with the aforesaid Sections of IPC.

(2.) On 28.02.2002, when a general strike was called by Vishwa Hindu Parishad and riots had broken out in Ahmedabad pursuant to the incident of burning of a coach with passengers at Godhra, at around 02.00 p.m., the complainant, Nishar Ali Shaikh, had to flee from his colony and rush to a safe place with his four young children. His wife, Nasimbanu, aged 38, being pregnant, could not run with the rest of his family and fell victim to a mob wielding deadly weapons near a Punjabi hotel, according to the complainant. Upon his complaint being lodged on 01.03.2002 and after recording statements of several witnesses and collection of other evidence, chargesheet was filed and charge was framed against the three accused persons. During the course of trial, the complainant and 13 other witnesses were examined and, after appreciation and discussion of oral and documentary evidence on record, the trial Court found that presence of the accused persons in the mob at the time of the offence was proved; but the prosecution had failed to prove to the hilt the offence of murder and hence benefit of doubt had to be given to the accused persons. Thus, each accused -respondent was convicted accordingly and punished with imprisonment for three years and fine of Rs.10,000/ -, of which Rs.20,000/ - was ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C.

(3.) It was vehemently argued by learned Special Public Prosecutor Shri J.M.Panchal appearing with learned Counsel Mr.K.J.Panchal, that, while convicting the accused respondents for the offences punishable under Sections 147, 148 and 149 read with Section 188 of IPC, they could not have been exonerated from the charge of murder in view of uncontroverted homicide and ghastly murder of the complainant's pregnant wife. As against that, learned Counsel Mr.B.R.Gupta, appearing with Shri V.B.Gupta for the accused respondents, submitted that they were implicated in the offence without any reliable or corroborative evidence against them, even as they were at the relevant time not present at the scene of offence at all, as stated in their statements recorded under Section 313 of Cr.P.C. Material parts of the oral and documentary evidence have been subjected to critical examination at the instance of learned Counsel appearing on both sides.