ISMAILBHAI RASULBHAI MANSURI Vs. MADANLAL RANGLAL ODA

JUDGEMENT

(1.) Heard Mr.A.J. Yagnik, learned counsel appearing for the petitioner. The present Revision Application is preferred against the order of acquittal passed by the ld.Additional Sessions Judge, Sabarkantha at Himatnagar, in Sessions Case No.19 of2003, arising out of complaint registered with Jadar Police Station vide C.R. No.I-18 of 2002. Total nine persons have been arrested and prosecuted for the offences punishable under Sections 147, 148 and 436 of the Indian Penal Code and Section 135 of the Bombay Police Act. The incident has occurred during communal riots that has ransacked the peace of people of State of Gujarat after the Godhra Train Carnage. To deal with the say of Mr.Yagnik, it would be appropriate to narrate facts in brief.

(2.) The complainant Ismailbhai though has given detailed FIR describing details of the damage caused to each and every property in a small village like Oda and the details of vehicle which were set on fire and not given names of any of the accused at initial stage. Though there was ample opportunity for the complainant to give details of the individual accused person at the earliest but no disclosure of names of accused persons till 3rd May, 2002 is found, is the material infirmity in the strength of the case of the prosecution. Number of witnesses belonging to the community of complainant only also have not stated that the accused persons or any one of them was involved or they have turned hostile to the prosecution. So the complainant does not get corroboration from the evidence of any confident witness or any person who himself is a victim of the misdeed of the mob. Thus, there is no satisfactory corroboration.

(3.) The presence of complainant Ismail at the rooftop of his house is doubtful because rooftop of his house was damaged when the Panchanama was drawn. The complainant Ismail has made attempt to modulate the theory as to his presence in the residential premises and even on the next day in the village Oda and according to the ld.trial Judge, it is highly improbable that the complainant was present in the village Oda on the next day. When the father of the complainant has accepted that he had left his residence to save himself nullifies the effect of the story unfolded by him in the Examination-in-Chief. It is true that in such or similar situation, the prompt investigation or support from the State to the present victim can help the prosecution in bringing home the charge against the accused persons. But when the crime was committed at night hours and that too after 11 p.m., and the Muslim residents had either left the village or had taken shelter at their Hindu friends-well-wishers. So any of the prosecution witness could not have witnessed the incidents and hence, it was difficult for the ld.trial Judge to accept that any person present in the mob could be even identified by any villager. Undisputedly, the witnesses were were in the mood to leave the village at the earliest so that they can save themselves. The theory of existence of light of one electric lamp outside one of the houses is found doubtful because of contradictions created by the prosecution witnesses while leading evidence.