VARIYAM SINGH 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.) A few striking facts emerging from reading of the prosecution evidence as a whole are that the accused persons were known to the complainant and it is categorically deposed by him that they have not killed his wife. Secondly, any of the police witnesses or the investigating officer who have been on duty at and around the place of offence have neither named nor recognized or identified the accused persons as those who were seen in the mob. Thirdly, none, other than the accused persons, are named or even vaguely described by any of the witnesses to at least reach the figure of five to form and prove an unlawful assembly committing the offence of rioting. Fourthly, the only witness claiming to be an eye witness to the incident i.e. Abdul Naim Shaikh (Exh.28), turned hostile and then supported in his cross-examination the case of the prosecution. But the fourth person named and seen with weapons by him is not chargesheeted. Even that witness did not describe any weapons alleged to have been wielded by any of the accused persons. Although he deposed to have informed the complainant about the incident, the complainant apparently refused to believe him. These facts and factors put the whole case of the prosecution under a cloud of doubt and prove the investigation to have been specifically focused against the accused persons only. Even as the prosecution case against the accused rested only on the deposition of Abdul Naim Shaikh (PW.7, Exh.28) and his deposition is found to be ambivalent and unreliable, a reasonable doubt has to be entertained about presence of the accused persons in the mob of miscreants and wielding of any weapons by them with a shared or common object of killing anyone. Even as two of the accused persons are shown and described in evidence as "Sardarjis" and owners of a hotel near the scene of offence, it is difficult to imagine, in absence of any evidence in that regard, that they could have harboured any common object shared by the mob of miscreants who arrived at the scene of offence from other area. When independent officers of the police force, who actually arrived at the scene of offence during or immediately before or after commission of the offence, refrained from naming or even vaguely describing any person like the accused persons as members of the unlawful assembly, it would be perverse to jump to the conclusion that they were members of the unlawful assembly using force or violence and in prosecution of the common object of that assembly, they committed the offence of murder without any motive, rhyme or reason, rather than saving their own skin and establishment from indiscriminate acts of arson and destruction by the furious mob. The inference of the accused respondents having been specifically chosen and targeted for prosecution and punishment is buttressed by the fact that someone in the position of obtaining signatures of the complainant was proved to have been active even during the trial insofar as letters advising the trial Court and learned A.P.P. were prepared and sent so as to influence the Court and secure conviction of the respondents- accused.