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Judgment
Anant S. Dave, J.—Both these appeals are filed against the common judgment dated 4th May, 2004 passed by the learned Additional Sessions Judge, Court No. 8, Ahmedabad, in Sessions Case Nos. 31/2003, 132/2003 and 145/2003, whereby the appellant-accused No. 14 of Criminal Appeal No. 1080/2004 and the appellants-accused Nos. 6 and 28 of Criminal Appeal No. 1090/2004 were ordered to undergo life imprisonment and to pay fine of Rs. 25,000/- for the offences punishable u/s 302 r/w. Section 149 of IPC; simple imprisonment for six months and fine of Rs. 1,000/-, in default simple imprisonment for two months for the offence u/s 143 of IPC; rigorous imprisonment for two years and fine of Rs. 3,000/-, in default simple imprisonment for six months for the offence punishable u/s 147 of IPC; rigorous imprisonment for three years, fine of Rs. 2,000, in default simple imprisonment for six months for the offence punishable u/s 148 of IPC; rigorous imprisonment for two years and fine of Rs. 2,000/-, in default simple imprisonment for six months for the offence punishable u/s 353 of IPC; rigorous imprisonment for five years and fine of Rs. 5,000/-, in default simple imprisonment for one month; simple imprisonment for three months, in default 15 days imprisonment for the offence punishable u/s 333 of IPC; simple imprisonment for three months, fine of Rs. 100/-, in default fifteen days imprisonment for the offence punishable u/s 336 of IPC; simple imprisonment for three months and fine of Rs. 500/-, in default simple imprisonment for one month for the offence u/s 186 of IPC. It was ordered that all the sentences shall run concurrently.
The short facts of the appeals are as under:
The case of the prosecution is that on 21.4.2002 around 1:45 (noon) at Noorbhai Dhobi Ni Chawl in Gomtipur area, Ahmedabad, a mob of nearly 200 persons started pelting stones, throwing crude bombs and shouting ''Maro Maro, Kapo Kapo'' which could be barely controlled by firing in the air and resorting to lathi charge by the police personnel and the mob dispersed in the chawl. Thereafter within 15 minutes or so a police constable Amar Sureshrao Patil who was going to report for his duty at Gomtipur Police Station on his motorbike through Amrapali Cinema Road was forcibly stopped and intercepted by a mob consisting 30-35 rioters who dragged him inside the Noorbhai Dhobi Ni Chawl and attacked him with deadly weapons like sword and dagger and inflicted several blows on his body and he succumbed to death. The accused were caught from the scene of offence by the police personnel petrolling in the area and after due investigation, the accused were charge sheeted. On committal of the case to the Sessions Court u/s 209 of Code of Criminal Procedure, 1973 charge was framed for the offences punishable under Sections 143, 147, 148, 149, 302, 353, 333, 336 and 186 of Indian Penal Code and Section 135(1) of the Bombay Police Act and Sections 4 and 5 of the Explosive Substances Act, 1908. Since the accused pleaded not guilty, in all 15 witnesses came to be examined by the prosecution to substantiate the charges levelled against the accused and number of documents were relied upon by the prosecution:
PW 1 Pravinchandra Keshavlal Joshi Exh.61
PW 2 Hariram Rajaran Yadav Exh.65
PW 3 Sureshbhai Hiralal Solanki Exh.66
PW 4 Ayubbhai Normohammad Shaikh Exh.76
PW 5 Babubhai Naranbhai Parmar Exh.77
PW 6 Mukeshbhai Madhukarbhai Pithe Exh.80
PW 7 Bharatbhai Valjibhai Solanki Exh.85
PW 8 Jayantibhai Shaknarbhai Patni Exh.86
PW 9 Lavjibhai Naranbhai Vania Exh.91
PW 10 Mohd. Rafik Mahuyuddin Shaikh Exh.93
PW 11 Deepakkumar Champaklal Jagani Exh.96
PW 12 Mayurkumar Girdharlal Vala Exh.98
PW 13 Dineshbhai Ramabhai Solanki Exh.100
PW 14 Rajendrasinh Sanjaysinh Rana Exh.103
PW 15 Virsinhbhai Kalubhai Amliyar Exh.108
The list of the documents relied upon by the prosecution is at Exh.56 as under:
Exh.128: Complaint of Shri P.K.Joshi, PSI, dt.21.04.2002
Exh.105: Report of the PSO, dt.21.04.2002.
Exh.92: Inquest Panchnama, dt.21.04.2002.
Exh.103: Panchnama of scene of offence, dt.21.04.2002.
Exh.104: Panchnama of seizure of weapons from the accused, dt. 21.4.2002.
Exh.109: Forwarding letter to FSL, dt.21.04.2002.
Exh.110: FSL Receipt. dt. 02.05.2002.
Exh.117: Letter from of FSL to get remaining muddamal collected. dt. 11.07.2002.
Exh. 118: Biological report of specimen sent to FSL dt. 06.07.2002.
Exh.119: Biological Report. dt.16.07.2002.
Exh. 113: Despatch notes of FSL,dt.21.5.2002.
Exh.114: FSL Receipt, dt. 02.05.2002
Exh.120: Letter from FSL dt. 13.08.2002 and 03.08.2002 to collect samples of its report on them.
Exh.121: Report of department of Physics dt.23.05.2002.
Exh.97: P.M.Note. dt. 21.04.2002.
Exh.115: Permission to prosecute for the offence under Explosive Substances Act, dt.05.07.2002.
Exh.129: Certificate of V.S. Hospital of Irshadkhan dt. 21.05.2002.
Exh.112: Panchnama of seizure of weapons at the instance of the accused, dt.21.05.2002.
Exh.111: Panchnama of physical condition of the accused,dt.21.05.2002.
Exh.116: Notification issued by the Commissioner of Police dt. 25.02.2002.
Learned Additional Sessions Judge, after extensive hearing and elaborate scrutiny of evidence on record found that out of total 40 accused, accused No. 14-the appellant in Criminal Appeal No. 1080/2004 and accused Nos. 6 and 28, the appellant in Criminal Appeal No. 1090/2004 were guilty of the offences punishable under Sections 143, 147, 148, 302 read with Sections 149, 353, 333, 336 and Section 186 of Indian Penal Code and accused Nos. 6 and 14 were also guilty u/s 135(1) of the Bombay Police Act and accused No. 28 was given benefit of doubt in respect of offence u/s 135(1) of the Bombay Police Act and all the three appellants were given benefit of doubt for the offences punishable under Sections 4 and 5 of Explosive Substance Act, 1908.
Shri Jayprakash Umot, learned Counsel appearing for the accused No. 14 in Criminal Appeal No. 1080/2004 raised various contentions and submitted that the case of prosecution was based on a false and concocted story, since there was no eye witness to the incident. Besides that no Identification Parade was held and almost all panchas of panchnama had turned hostile. The case was based at the most on circumstantial evidence and chain of events were not completed. According to learned Counsel there were substantial contradictions, inconsistency, exaggeration and improvement to be found in deposition of the prosecution witnesses. In view of that, formation of unlawful assembly for common object of committing alleged crimes by the accused persons who were alleged to be members of the violent mob could not be believed. Learned Trial Judge has erred in appreciating role of the accused persons on the basis of oral and documentary evidence on record and committed serious error in believing the version of the prosecution and convicting the accused for the offences, according to the submission.
Learned Counsel Shri Umot has taken this Court through the testimonies of Pravinchandra Keshavlal Joshi, the Complainant and Police Sub Inspector at Exh.61 and submitted that, though he was on duty with other police personnel and BSF personnel and saw the mob dragging Shri Amar Sureshrao Patil into the Chawl, he did not make any attempt to rescue him. He submitted that just before 15 minutes the very officer had dispersed the mob consisting of 200 rioters by firing 4 to 5 shots from his service revolver and could effectively control the mob. Such inaction or conduct on the part of PW 1 was unbelievable. Besides, PW 1 failed to identify the appellant-accused No. 14. He submitted that muddamal article No. 2 i.e.-dagger, which was alleged to have been possessed by the appellant at the time of offence, had no panchslip on it when it was shown to PW 1 in the Court in sealed condition and this lacuna was fatal for the case of the prosecution as against the appellant-accused No. 14. His involvement and participation in the alleged crime and causing serious injury to the deceased with lethal weapon was not proved. Learned advocate further submitted that there are three main access points for ingress and egress from where one could enter into Noorbhai Dhobi Ni Chawl. As deposed by PW 1, when they entered into Noorbhai Dhobi Ni Chawl, Shri K.D.Jhala another Police Officer in-charge of police petrolling came from Usha Talkies Road but did not fire any shot to catch hold of any person though some members of the violent mob were assaulting the deceased. PW 1 further deposed that he had not seen any of the accused persons with weapons and had not seized any weapon. PW 1 further deposed that it was not possible for him to say who inflicted what injuries on whom since he had not seen anybody inflicting blows and when he reached the scene of offence he had not seen any person with any weapon.
So far as deposition of Police Constable Hariram Rajaram Yadav Exh.65 (PW 2) is concerned, his statement was recorded on 21.4.2002 at 15:00 hours, whereas, the incident occurred at 14:00 hours. As per the prosecution case, when Gomtipur area of Ahmedabad City was reeling under communal riots, about 17 accused persons were apprehended by Shri K.D.Jhala, Police Sub Inspector, who entered from Usha Talkies Road. In view of that, a specific question was asked to this witness whether any accused was caught by Mr. Jhala before alighting from the jeep? To which he answered '' could be caught after alighting from the jeep''. Therefore, when Shri K.D.Jhala reached the scene of offence no one could have been caught by him, according to the submission.
So far as evidence of PW 3 Sureshbhai Hiralal Solanki (Exh.66) is concerned, he had deposed that at the relevant point of time, the mob dispersed from the scene of offence and he had not apprehended any one and he was unaware about names of the persons who apprehended the appellant-accused No. 14.
While all panchas of the panchnamas, including panchnama of scene of offence, had turned hostile, Dr. Deepakkumar Champaklal Jagani (PW 11) who performed the postmortem (Exh.96) deposed that external injury No. 1 could cause death in ordinary course. On being specifically asked about injury No. 1 being possible by which weapon, he replied that injury No. 1 was possible by muddamal article Nos. 1, 10, 11 and 12 and the dagger muddamal article No. 2 attributed to the present appellant.
Shri Rajendrasinh Sanjaysinh Rana (PW 14 Exh.103) deposed that clothes of none of the accused had blood stains and that he had not asked or inquired about which accused had weapon and who had caught the accused and the complaint also did not mention anything about the same. None of the statements of the BSF personnel or State Reserve Police Personnel were recorded and in view of that the appellant deserved acquittal, according to the submission.
It was further submitted that it was strange that the incident happened around 1:45 p.m. wherein about 200 rioters were alleged to have indulged in violent acts of pelting stones and throwing crude bombs. On the very same day, the FIR being C.R. No. 100/2002 was registered for another incident and when the present incident took place at 2:00 p.m. C.R. No. 99/2002 was registered. Such anomaly was contended to be leading to the conclusion that the police wanted to falsely implicate the present appellant in the crime.
Shri Hriday Buch, learned Counsel appearing for the appellants in Criminal Appeal No. 1090/2004 adopted the submissions of learned Counsel for the appellant of Criminal Appeal No. 1080/2004. So far as the case of prosecution against appellants, original accused Nos. 6 and 28 is concerned, various loopholes and lacuna appeared during the course of investigation according to the submission. And subsequently major and substantial contradictions, inconsistencies, improvements in the testimonies of prosecution witnesses had emerged. Reliance upon such weak evidence by learned Additional Sessions Judge for convicting the appellants called for reversal of the judgment according to submission of Mr. Buch.
According to Mr. Buch, so far as appellant No. 6 was concerned, none of the three eye witnesses i.e. PW 1, PW 2 and PW 3 attributed any specific overt act to appellant No. 6 and none of the above witnesses had actually seen appellant No. 6 inflicting injury on the deceased in spite of the fact that all three eye witnesses knew appellant No. 6 since about 2 years before the date of the incident. Learned Counsel further submitted that the FIR Exh.128 was silent with regard to the actual role played by appellant No. 6 and that was also fortified by admission of PW 1. So far as accused No. 28 is concerned, PW 2 Hariram Rajaram Yadav attributed to him an overt act to the effect that he led and instigated the mob but it was admitted by PW 1 in his cross-examination that it was not stated by him in his statement before the police that accused No. 28 had led the mob. Thus it was nothing but improvement and embellishment in the testimony before the trial judge and since there was no direct evidence against accused Nos. 6 and 28 they deserved acquittal, according to the submission.
It was further submitted by Mr. Buch that accused No. 6 was alleged to have been caught on the spot and his name figured in the list of arrested accused in the FIR at Serial No. 13. Even as the FIR was completely silent about the sword seized from accused No. 6, PW 1 Shri Joshi denied that the sword had been recovered from accused No. 6 and was handed over to him by accused No. 6. Therefore, version of PW 2 of apprehending accused No. 6 with sword was nothing but an improved testimony and a major contradiction in the testimonies of PW 1 and PW 2. Even the recovery panchnama Exh. 104 was not proved.
It was further pointed out that PW 1 Shri Joshi admitted that no weapon was recovered from the place of incident and PW 3 Shri Suresh Solanki also deposed that weapons remained with the accused until the recovery panchnama was drawn. However, PW 1 admitted that until he got the FIR recorded and left the police station, muddamal weapons had not reached police station and PW 3 specifically stated that the recovery panchnama of weapons (Exh.104) was drawn before the investigating officer Shri Rana (PW 14) and further admitted that he had not recovered or sealed any weapon. Therefore, recovery of the weapon which was allegedly recovered and sealed by PW 1, was not proved beyond reasonable doubt and panch witness Shri Dineshbhai Solanki (PW 13) of seizure panchnama had turned hostile. That panch deposed that his signature was obtained at the police station between 6:00 p.m. to 7:00 p.m., whereas panchnama was alleged to have been completed at about 4:00 p.m. The contents of the panchnama was also not proved and, therefore, recovery of muddamal sword from accused No. 6 was highly doubtful, according to learned Counsel. It was specifically stated by PW 1 that three swords were recovered as muddamal and were sent for examination to the FSL at different points of time. The postmortem report did not reveal as to whether any blood sample of the deceased was taken and further sent for examination to FSL and merely because blood of group ''O'' was found on the weapon would not be of any significance.
It was further submitted that so far as accused No. 28 was concerned, he was arrested only on 2.5.2002 by Shri Amaliyar, who took over investigation on 26.4.2002 and there were no circumstances except the improved version of PW 2 about accused No. 28 leading and instigating the mob. It was submitted that the appellant Nos. 6 and 28 deserved acquittal under the aforesaid cirucmstances.
Shri J.M.Panchal, learned Special Public Prosecutor, defended the appreciation of evidence, findings and the conclusions reached by learned trial court and submitted that not the quantity but quality of evidence had to be seen. There was no enmity or motive for the police to implicate the accused. That presence of police personnel was natural and probable when the whole city of Ahmedabad was reeling under communal violence after the ''2002 incident of Godhra'' and police petrolling was carried out. Therefore, swift action was taken by different police squads to control the violent mob which ultimately resulted in apprehending the appellants herein who were involved in the heinous crime of killing a police constable on duty in a gruesome manner. Learned Special Public Prosecutor further submitted that merely because witnesses of the prosecution are police personnel their testimony could not be doubted. According to him, the accused were caught from the scene of offence with weapons and while they were chased by the police personnel, inquest panchnama was drawn, the dead body of the victim was shifted to the hospital, then the accused were brought before the police station, panchnama for the recovery of weapons was drawn, the FIR was registered and the panchnama of scene of offence was also drawn. The investigation was not lacking in any manner under the given circumstances and charge sheet had came to be filed accordingly, according to the submission.
Learned Special Public Prosecutor relied on nature of injuries on vital parts of body of the deceased and on deposition of Dr. Dipakkumar Champaklal Jagani (PW 11 Exh.96) to submit that the injuries could be caused by the weapons viz. sword and dagger possessed by and recovered from accused Nos. 6 and 14.
It was further submitted that truthful testimonies of (PW 2)-Hariram Rajaram Yadav, Constable, (PW 3) Sureshbhai Hiralal Solanki, Constable, (PW 14)- Rajendrasinh Sanjaysinh Rana, PSI and (PW 15) Shri Veersinhbhai Kalubhai Amliyar, PSI were unimpeachable though they were all police personnel as they adhered to the case of the prosecution; and corroboration to their depositions is found from various exhibits namely Exh.128- complaint, Exh.92 - inquest panchnama, Exh.103- panchnama of scene of offence, Exh.104 - panchnama of seizure of weapons and Exh.109 - forwarding letter to FSL on the very same day of incident i.e. 21.4.2002. Though part of the testimony of PW 1 Shri Pravinchandra Keshavlal Joshi, PSI did not support some facets of the prosecution case, but, by and large, that witness also deposed that he had followed the rioters when the deceased was dragged to Noorbhai Dhobi Ni Chawl and was assaulted by some of the members of violent mob with weapons and in follow up action 13 persons were apprehended and another PSI Shri K.D.Jhala of petrolling party had apprehended 17 other accused persons. All the accused were taken to the police station into three different police mobile vans. According to Shri Panchal, learned Special Public Prosecutor, a minor discrepancy or contradiction cannot be used against the prosecution. There being no motive for the police to implicate the accused in a false or concocted case as alleged, the fact of very few persons from the mob or unlawful assembly being identified and caught from the scene of offence with weapons after commission of the crime could not be held against the prosecution. The medical and oral evidence and the FSL report, supported by the doctor who carried out the postmortem, inquest panchnama, the nature of injuries found on the body of the victim and weapons used clearly revealed a case of gruesome murder of a public servant, deserving a serious view particularly when trial court has come to the conclusion after a careful consideration of evidence on record and lengthy discussion of relevant provisions of Indian Penal Code and applicable case law. Even if this Court were to take a different view, it was not open in exercise of powers u/s 374 of the Code to do so, when all the prosecution witnesses barring panchas have withstood the cross examination by defence and their testimonies have remained unshaken, according to the submission.
Learned Special Public Prosecutor relied on decision of the Apex Court in State of Rajasthan v. Om Prakash (2008) 1 SCC (criminal) 411 and Mahmood and Anr. v. State of Uttar Pradesh (2009) 1 SCC (criminal) 763, in support of his submission that truthful testimony of a solitary witness can be basis of conviction even if he is related to the deceased and absence of corroboration is inconsequential; and minor contradictions, inconsistency and exaggeration or improvements which are not germane to the credibility of the evidence cannot be treated as omission or contradictions. He further argued that once the membership of an unlawful assembly was established it was not incumbent on the prosecution to establish any specific overt act by any of the accused for fastening liability with the aid of Section 149, provided common object of the unlawful assembly could be gathered from the evidence. In the present case it was evident that some of the members of the mob were armed with deadly weapons like sword, dagger and guptis and other persons were found at the place of scene of offence which was also corroborated by Medico Legal evidence. Another decision reported in MDEO v. State of Maharashtra (2009) 1 SCC (Criminal) 773 was relied upon in support of his argument that there is no general rule or principle about required number of witnesses or prerequisite of corroboration for conviction. In fact, credible and trustworthy evidence even by a solitary witness could be acceptable and corroboration is not mandatory except in certain exceptional circumstances.
Having heard learned Counsel appearing for the parties and on careful perusal of oral and documentary evidence, the roles attributed to accused persons and the manner and method of appreciation of such evidence and the reasoning and conclusions arrived at by the trial court, it appears that the case of the prosecution is based on testimonies of PW 1 Shri Pravinchandra Keshavlal Joshi PSI, PW 2 Shri Hariram Rajaram Yadav, Constable, PW 3 Sureshbhai Hiralal Solanki, constable, PW 14 PI Shri Rajendrasinh Sanjaysinh Rana and PW 15 Shri Virsinhbhai Kalubhai Amliyar, Police Inspector supported by the Doctor who carried out postmortem. The prosecution found support from another witness Babubhai Parmar, Panch of scene of offence panchnama Exh.77, who admitted having signed the panchnama and also identified his signature on the panch-slips and from other evidence about nature of injuries on the vital parts viz. stomach, liver, abdomen etc. of the body of the deceased. Though, wide spread violent communal riots had taken place in and around city of Ahmedabad, swift action on the part of police personnel of Gomtipur Police Station and other police petrolling parties coupled with the fact of removing the deceased to Shardaben Hospital from the scene of offence, arresting the accused with weapons who were brought to Gomtipur Police Station, filing of a complaint, drawing arrest memo, inquest panchnama, recovery of weapon panchnama, sending FSL on the same date ruled out any oblique motive on the part of the police personnel to concoct a case so as to implicate accused.
It has, however, to be noted that Shri Prakash Chandra Joshi, PSI, is the complainant, who filed complaint on 21.4.2002 and in his deposition he stated that he was present at the police chowky with Head Constable Bhupendrasingh, Hariram Rajaram, Police Constable (PW2) and another Police personnel Gamersingh at around 13:30 hours. When they heard shouting of about 200 rioters crying: ''kill them-cut them'', pelting stones and throwing crude bombs, PW 1 had to fire five rounds from his service revolver and then the violent mob dispersed inside the Noorbhai Dhobi Ni Chawl. After 15 minutes i.e. around 2:00 p.m. when he was standing on the road leading from Amrapali Cinema, near Rajpur Chowky, he alongwith other police personnel saw Shri Amar S.Patil, a police constable of Gomtipur Police Station coming from Amrapali Cinema road on his motorbike. Then, 30-35 persons came out with weapons and halted constable Amar Patil and he was pulled down and dragged into the Chawl. When he and other staff members saw that, they ran towards the Chawl along with Jawans of BSF and found some persons assaulting police constable Amar Patil with sword and dagger and when they saw police personnel, they started running towards Usha Talkies Road i.e. on other side of the Chawl. At that moment, from other side, namely Usha Talkies road, other PSI Shri K.D.Jhala also entered with his jeep and went upto the scene of offence i.e. near Jillani Trading Company inside the Chawl and, Shri Joshi PSI (PW-1) alongwith his staff apprehended about 13 accused persons and Shri K.D.Jhala PSI who entered into the Chawl arrested around 17 persons and thus a complaint was filed. Since police constable Amar Patil had succumbed to injuries and was found dead, the complaint was registered as C.R. No. 99 of 2002 at around 15:30 hours for the offences punishable under Sections 143, 147, 148, 149, 302, 332, 353, 336 and Section 186 of Indian Penal Code. The above complainant (PW-1) identified accused Nos. 1, 6, 22 and 28 by names and muddamal article Nos. 1, 2, 3, 10, 11 and 12, when shown were identified as seized from the accused at the relevant time. PW 1 in his cross-examination admitted that he had not seen any blows being given by any persons and there was no lathi charge or firing. However, he explained that he could identify accused Nos. 1, 6, 22 and 21 since he was in-charge police officer of the said area for last two and half years and he knew some of the accused. In his further cross-examination, PW 1 agreed to the suggestion that neither any weapons were seized by him nor any guard was placed at the scene of offence. He further deposed that there were no blood stains on the weapons and none of the weapons had been either recovered or discovered or seized by him. He was intensively cross-examined on the topography of Noorbhai Dhobi Ni Chawl, where the alleged incident took place and he stated that the place of incident was slightly on the left side after entry gate of the chawl and three roads from different sides lead to that place namely, one towards Usha Talkies Road, the other one was a small gate and third one from Amrapali Talkies Road.
The above PW 1 is believed to be reliable for the prosecution story, seizure of weapons, identification of the accused and happening of the incident but the version is discarded by the trial court to disapprove the theory of the prosecution about involvement of the accused persons in actually committing the crime on the ground that PW 1, though serving on the post of PI at relevant point of time, was facing some departmental inquiry and, therefore, the version not supporting the prosecution cannot be pressed into service for benefit of the accused, in view of other corroborating evidence of Shri Hariram Rajaram Yadav PW 2 and Sureshbhai Hiralal Solanki PW 3 coupled with the evidence of accused persons being part of unlawful assembly.
Another witness, namely Hariram Rajaram Yadav PW 2, was also a member of the police staff at Rajpur Police post of Gomtipur Police Station. On 21.4.2002 he was present with PSI Shri P.K.Joshi PW 1 at around 13:30 hours along with other constables. He supports the version of PW 1 about the incident at 13:30 hours of pelting stones and throwing crude bombs by rioters of violent mob which was dispersed by Shri Joshi by firing five rounds from his service revolver. After 15 minutes, at around 14:00 hours, Shri Amar Patil, the deceased police constable who was going on his motorbike to report for duty, was dragged into the chawl and assaulted by the accused persons. That witness, in his further deposition, identified Mohd.Shahnawaz (accused No. 6), Arif (accused No. 18) and Mohd. Hussain Latif Idrishi (accused No. 14). He further deposed that muddamal article No. 2 dagger was with accused No. 14 namely Mohd. Hussain Latif Idrishi whereas the sword and iron handle was with accused No. 6 namely Mohd. Shahnawaz and iron pipe was with accused No. 18. He also reiterated arrest of 13 accused persons by PW 1 and other staff members and arrest of 17 other accused persons by K.D.Jhala, another PSI. In his cross-examination he largely adhered to the prosecution story that he along with Shri Joshi PW 1 and other police personnel and BSF Jawans entered the Noorbhai Dhobi Ni Chawl through main gate, which is connected with Amrapali Cinema Main Road and Shri K.D.Jhala entered from the opposite side abutting on the Usha Talkies Road. He also stated about identifying the accused and his awareness about Noorbhai Dhobi Ni Chawl since he was serving in the same area and was familiar with some of the accused and knew them by their names. Thus, PW 2 Hariram Rajaram Yadav deposed that a mob of 30-35 persons from among 200 rioters dragged Shri Amar Sureshrao Patil into the Chawl and killed him. He further stated that he was familiar with the entire Chawl as he was in-charge of the Rajpur Chowky, that the sword carried by accused No. 6 Mohd.Shahnawaz had a design on it and that accused No. 6 was leading the mob and instigating them to kill.
Shri Sureshbahi Hiralal Solanki (PW-3), serving in surveillance team of Gomtipur Police Station, stated that he could not identify accused No. 18 before the Court but he identified the dagger and the sword. According to him, sword being muddamal article No. 1 had a design on it and it was with accused No. 6 namely Mohd. Shahnawaz. In his cross-examination he specifically stated that he went with Shri Rana, another PI of petrolling party, to Noorbhai Dhobi Ni Chawl on receiving the message about riot in the surrounding area, which was controlled by them. According to him, for reaching Noorbhai Dhobi Ni Chawl, one road comes from Gomtipur Circle, another comes from Amrapali Cinema and third one is from Usha Talkies road and there are gates for entering into Noorbhai Dhobi Ni Chawl. However, in his cross-examination, he confirmed that all the entry points for entering the chawl were cordoned off by the police personnel. PW 3 was on the side from where accused Nos. 6 and 14 were caught but he stated that one of the staff members had caught accused No. 6. He also confirmed that accused Nos. 6, 14 and 18 were taken upto the mobile van. According to PW 3, when the accused were arrested, only the panchnama of the weapons which were recovered from accused Nos. 6, 14 and 18 was drawn. The accused Nos. 6, 14 and 18 were arrested from the scene of offence and sword and dagger were attributed to accused No. 6 and pipe to accused No. 18 which reflected blood marks on sword and dagger and the weapons were sealed then and there only.
All the other prosecution witnesses of different panchnamas viz. inquest panchnama and recovery of weapons panchnama have not supported the case of prosecution in their deposition. Then comes the deposition of Shri Rana, PI who had taken over the investigation from Shri Joshi (PW 1). He categorically deposed that he received the seized weapons in sealed condition and later on the investigation was handed over to Mr. Amliyar (PW 15) on 26.2.2004 who sent those sealed articles to the FSL with dispatch note. In the receipt issued by the FSL along with the report, the weapons were stated to have been found in sealed cover.
It is to be noted that Shri K.D.Jhala, PSI is not examined, no map is drawn of the Noorbhai Dhobi Ni Chawl and a rough sketch is produced on the record of the case to show the scene of offence.
The above version of three prosecution witnesses has to be appreciated in light of and in conjunction with the documentary evidence of injuries as reflected in the postmortem report, which was carried out on 21.4.2002 at 6:10 p.m. by Dr. Deepakkumar Champaklal Jagani reflecting nine injuries as under:
Stab wound over hypogastrium on the right side 23 cms., below upper border of sternum and 15 cms. above umbilicus, 0.5 cms right of midline, horizontal with sharp edges acute angles with hemmorahage. The size of the wound was 4 cms in length x cms in width and 9 cms in deapth.
Verticle incised wound over parietal region of head longitudinal, 8 cms above left external ear, 4x12x1 cms.
Verticle incised wound over left scapula 5 cms. below left shoulder, 10 cms. lateral from medial margin of lt. Scapula 5x2x1 cms.
Vertical incised wound on posterior midoxipetal region 4x1/2x1/2 cms. with sharp edges and bleeding.
Horizontal incised wound on Rt. posterior occipital region right side cms. lateral to midline 3x1/2x1 cms.
Red abrasion over right clavicle medial end measuring 3x3x1/4 cms.
Multiple red abrasions of varying sizes from 1 cm to 7 cms length over back of chest and abdomen on both the sides.
Incised wound over midline of forehead verticle measuring 3x1/2x1/2 cms.
Abrasion on right side of forehead near right eyebrow measuring 1x1x1/4 cms.
The above injuries are no doubt serious and reflect stab and incise wounds, verticle and horizontal, on vital organs of the body of the deceased. The above injuries were obviously inflicted with deadly weapons on chest and abdomen. The external injuries having the corresponding internal injuries, according to the medical evidence, were sufficient in ordinary course of nature to cause death of a person. It was further opined that even external injury No. 1 was also sufficient to cause death of a person in ordinary course of nature and external injuries No. 2, 3 and 5 were also serious and in absence of even injury No. 1 were sufficient in ordinary course of nature to cause death. Besides, such injuries could be caused by weapon having sharp edges and acute angles on both sides and, therefore, usage of sword and guptis by the assailants were sufficient to cause death of the victim.
Considering the above aspect of medical evidence and depositions of the three eye witnesses and keeping in mind unlawful assembly formed by the accused persons learned Sessions Judge has convicted the accused persons. However, the following aspects remained convincingly unexplained and unanswered by the prosecution, viz:
i) Shri Joshi, PSI (PW 1), along with Shri Hariram (PW 2) and other two constables and BSF Jawans entered into Noorbhai Dhobi Ni Chawl from Amrapali Talkies Road, chased the assailants who dragged Shri Amar Patil and inflicted severe injuries near Jillani Trading Company. The spot where alleged offence took place is 200 ft. away from the entry point and on turning left the actual place of offence is visible. All the police personnel including BSF Jawans were trained and experienced to control a rioting mob and, though virtually witnessed Amar Patil being dragged inside the Chawl at a distance of a few feet, they did not raise any alarm or made any attempt to save their colleague by taking any measure including that of firing or resorting to lathi charge. The above conduct of PW 1 and PW 2 and other police personnel, if true, was un-natural and unbelievable. Besides that none of them saw face of any of the assailants. That un-natural conduct remains unexplained particularly in the backdrop of the fact that Shri Joshi PSI (PW 1) had fired five rounds from his revolver just before 15 minutes to disperse violent mob in the same area.
ii) The accused Nos. 6, 14 and 28 were identified by PW 1, PW 2 and to some extent by PW 3 on the premise that PW 1 and PW 2 were serving at the nearby police chowky of Noorbhai Dhobi Ni Chawl since last two and half years and they knew the accused. It has to be noted that accused No. 14 was in the list of accused persons apprehended by Shri K.D.Jhala who entered from Usha Talkies Road and straightaway approached the scene of offence in his jeep but who actually apprehended 17 rioters from Shri Jhala''s party is not examined by the prosecution and PW 1 and PW 2 deposed that Shri K.D.Jhala had not arrested any one till he reached the place of scene of offence.
iii) The version of Shri Hariram PW 2 of apprehending Shri Shahnawaz (accused No. 6) with sword from the scene of offence is improvised as if after committing such a serious offence accused No. 6 was waiting to surrender to the police party with weapon in his hand. So is the case with accused No. 14, who is alleged to have used dagger and accused No. 28 who was alleged to be instigating the mob which dragged Shri Amar Patil into the Chawl.
iv) Shri Joshi (PW 1) has not deposed that weapon seized from the assailants were handed over to him, while Shri Hariram (PW 2) in his testimony deposed that the weapons viz. sword was handed over to Shri Joshi. None of the eye-witnesses were sure about seizure of weapon panchnama and none of them have stated anything about blood stains on the weapon being noticed by them. The blood group ''O'' found on the weapon as per FSL report cannot be the sole basis for the conclusion that the weapons were used by the accused and the blood found thereon was of the deceased.
v) The timing namely 14.00 to 14.15 hours of the alleged incident coincided with timing of Namaz for members belonging to minority community to offer Namaz at Noorani Masjid situated near the Chawl and there was distinct possibility of gathering of a crowd just out of curiosity to inquire about the incident.
vi) No map of scene of offence was drawn by the prosecution and rough sketch of the place of offence was produced to visualize the topography of the area.
vii) The deposition of Shri Rana (PW 14) and Shri Amaliyar, PI (PW 15) only established that investigation was carried out, since they were not eye witnesses of the assault. What could be believed at the most is homicidal death of Shri Amar Patil and the injuries inflicted on vital part of the body reveal severe blows by sharp edged weapons, but who inflicted such injuries has not come in the evidence on record.
viii) There were major contradictions / omissions in the testimonies of PW 1 and PW 2 about apprehending accused from the scene of offence with weapons and panchnama of seizure of weapons. Learned Sessions Judge has heavily relied on certain omissions in the depositions of PW 2 with regard to his familiarity with the entire Chawl and his knowledge of accused persons as residents of the Chawl. Therefore, identification in the Court of four accused persons out of 30-35 persons, who were also part of rioting mob of 200 members at around 13:45 hours and the sword having design on it and accused No. 28 leading the mob and playing a key role in dragging Constable Amar Patil to the Chawl, were treated as minor contradictions. In absence of any corroboration to the version of Shri Hariram (PW 2) (since Shri K.D.Jhala, PSI, who entered from Usha Talkies Road, is not examined) and Shri Joshi (PW 1), who was leading the police party with (PW 2) from Amrapali Talkies Road, the testimony was unreliable and untrustworthy and learned trial court has, in no uncertain terms, observed that.
ix) Since all 25 to 30 persons who were alleged to have dragged Shri Amar Patil, to Noorbhai Dhobi Ni Chawl, were also members of mob consisting of 200 members, which was dispersed by Shri Joshi, PSI by resorting to firing just 15 minutes before, they were the members of an unlawful assembly having common object to kill, is also a far-fetched conclusion since normal conduct of an accused would be to leave the place of offence immediately and not to wait till arrest.
x) So far as accused No. 28 is concerned, he is convicted upon being named by PW 1 and PW 2 and being identified in the Court by those witnesses. However, no other evidence has come on record pointing to his involvement in the crime. He was not caught from the scene of the offence.
xi) All witnesses of all panchnamas have turned hostile and even panchnama of seizure of weapons was also doubtful and not supported by PW 1 and PW 2. In such circumstances, sending such weapons to FSL and relying on such report would be meaningless.
xii) Dr. Deepakbhai Jalani, (PW 11) who carried out postmortem only disclosed the nature of injuries. When he was cross-examined with regard to injury No. 1 he agreed with the possibility of injury No. 1 being caused by hitting a sword at a particular point, taking it out and once again piercing the wound at the same point for causing such injury, but that was impossible when such an assault by a mob took place with different types of weapons. Therefore, seizure of sword and dagger alleged to have been used for causing injuries to the deceased and the allegation of they having been wielded by accused Nos. 6 and 14 before being recovered as muddamal articles was highly doubtful, particularly on dagger, article No. 2 no panch slip was found.
xiii) When the case of prosecution is based solely on the above three shaky police eye witnesses having full of contradictions and inconsistencies and who were not substantially corroborated by any other witness and medical evidence, it is unsafe to infer involvement of the appellants as alleged and convict them on such basis as if the offences were proved against them beyond reasonable doubt.
So far as law laid down by the Apex Court in cases decided and relied on by the learned Public Prosecutor will have no application in facts and circumstances of this case, since improvements by PW 2 corrodes credibility of his deposition qua Accused No. 6 who is alleged to have been apprehended by him.
In the result, conviction and sentence ordered by the learned Additional Sessions Judge, Court No. 8, Ahmedabad dated 4th May, 2004 in Sessions Case Nos. 31/2003, 132/2003 and 145/2003 is hereby set aside and appellants are ordered to be set at liberty forthwith. Bail Bonds stand cancelled and if fine imposed is paid, it is to be returned to the appellants.
Appeals are allowed accordingly.