MANUBHAI KARSHANBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Criminal Miscellaneous Application under Section 389 of the Code of Criminal Procedure has been preferred by the applicant hereinoriginal accused no.83 the then Police Inspector of Visnagar Police Station to suspend the sentence imposed by the learned Sessions Judge/ Designated Court, Mehsana passed in common judgment and order dated 30.7.2012 passed in Sessions Case Nos. 180 of 2002, 28 of 2004, 77 of 2005, 143 of 2008 and 56 of 2009 convicting the the applicant herein original accused no.83 for the offences under Sections 217 and 218 of the Indian Penal Code and sentence to undergo one year S.I with fine of Rs.250/ for each offences and in default to suffer simple imprisonment for 15 days.

(2.) THAT the present case is arising out of one of the incident which took place at Visnagar, Dist. Mehsana, one of the postGodhra 2002, Riots and arising out of the FIR being CRI No. 60 of 2002. That the incident took place in the late evening on 28.2.2002 i.e. after Godhra Railway Carnage incident, to condemn the Godhra Railway Carnage. That on 28.2.2002 a Bandh was called in the State of Gujarat condemning Godhra Railway Carnage. That as per the prosecution case in the late evening on that day, a mob of around 200 people of one community formed an unlawful assembly carrying, deadly weapons viz. Swords, iron pipes etc. and attacked the houses of Muslim families in the area of Chudivas, Dipra Darwaja of Visnagar Town of Mahesana District. In the attack 21 houses were burnt down and 11 persons were killed. That on receiving the information of the incident, officials including the S.P., Dy.Sp and P.I rushed to the spot along with subordinate staff. The police lobbed 8 teargas shells, also fired 15 rounds and dispersed the violent mob. Seven persons of the mob were apprehended by the police on the spot with weapons. The police rescued the Muslims families and shifted them to the police station which is situated at 1/2 k.m away from the place of incident. The rescued Muslim families were shifted to the safe locality of their relatives and injured persons were shifted to the local Civil Hospital in the police vehicle. The complainant remained at the police station and his complaint was registered at 22.15 hours. That the said incident was lodged by the complainant before the applicant hereinPolice Inspector Shri M.K. Patel in Visnagar Police Station. That the complainant named 9 accused persons in his FIR inclusive of 7 accused apprehended from the place of incident. The investigation was taken by the applicant herein the then Police Inspector, Visnagar Police Station, who was in charge of the said police station, followed by police Inspector Shri H.B. Rajput and Shri D.S. Asaari. That one Shri B.V. Jadeja, Deputy Superintendent of Police Division was the Visitation Officer of the said case, who supervised the investigation. Thereafter, the said FIR was investigated by the applicant hereininvestigating officer and the then Police Inspector, Visnagar Police Station. That on 1.3.2002, panchnama was drawn of the place of offence. The applicant herein recorded the statement of the witness and gathered the information about 11 Muslim persons either missing or killed. That on 6.3.2002 again panchnama of the place of offence in the presence of FSL, Finger Print Expert, Supervisory Police Officer, Executive Magistrate, victim/ witness Saiyed Nazirmiya Kalumiya and panch witnesses was drawn. That the debris of the houses were removed and various burnt items viz. Charred bones, burnt clothes, flesh, ornaments and other articles including blood stains etc. were found out. That from the burnt remains, 5 of the missing Muslims were identified by the witness Nazirmiya in the presence of panch witnesses. On 7.3.2002 again detailed search was done at the place of offence with the help of Sweepers from the local Municipality. According to the prosecution on 9.3.2002 an anonymous phone call was made to the Police Station informing the police about dead bodies lying in burnt condition near Malav Tala. Therefore, the applicant, Investigating Officer, Supervisory Officer and FSL Officer visited the Malav Lake where remains of charred bonus of human dead bodies in burn and semi burnt conditions were found near the lake. The witness Yusufkhan Muradkhan identified remaining 6 of the missing Muslims. The detailed panchnama of the said event was drawn by the Investigating Officer (applicant herein) in the presence of the panch witnesses and necessary samples were drawn. That thereafter, the charge for the offence under Sections 302, 201 and 120B of the Indian Penal Code was added during the investigation by the applicant Investigating Officer. That total 153 witnesses inclusive of eyewitnesses, police witnesses, Government witnesses and peripheral witnesses were examined by Investigating Officer.

(3.) PRESENT application is opposed by Shri Jayant Panchal, learned Special Public Prosecutor for the respondent State. It is submitted by Shri Jayant Panchal, learned Special Public Prosecutor for the respondent State that even the State is likely to prefer appeal against the impugned common judgment and order of acquitting accused for the other offences and even for enhancement of sentence imposed while convicting the applicant for the offences under Sections 217 and 218 of the Indian Penal Code. It is submitted that in the facts and circumstances of the case normal condition for the bail would not be applicable. It is submitted that the applicant was also facing serious charge for the offences under Sections 302, 120B and 201 of the Indian Penal Code along with Sections 217 and 218 of the Indian Penal Code. It is submitted that in the unfortunate incident which took place after post Godhra Riots, 11 persons died and 21 houses were burnt. It is submitted that it has been established and proved that there were serious lapses in the investigation by the applicant who at the relevant time was Police Inspector of Visnagar Police Station who thereafter conducted investigation in such a manner that the benefit would go to the accused persons. It is submitted that thereafter case was further investigated by the Team of S.I.T constituted by the Hon'ble Supreme Court and the Investigating Officer of the S.I.T found various defects in the earlier investigation by the applicant herein original accused no.83 and thereafter after the sanction was obtained the applicant herein was arraigned as accused no.83. It is submitted that the following defects / deliberate negligence in the investigation by the applicant were found: "1.When the complaint was lodged and statements of the witnesses were recorded, names of accused were disclosed, it was the duty of Investigating Officer to ask the complainant and witnesses, how they know the accused. Further, no Identification Parade procedure was adopted by Investigating Officer during his investigation, which could have played major effective role during the investigation and in concluding the trial.