Gujarat Court Acquits Accused Of Riots During Gujarat Riots 2002

Gujarat Court Acquits Accused Of Riots During Gujarat Riots 2002

Gujarat Court Acquits Accused Of Riots During Gujarat Riots 2002

 

Recently, the learned COURT OF 3RD ADDITIONAL SESSIONS JUDGE, PANCHMAHALS AT HALOL acquitted the accused persons charged u/s 143, 147, 148, 149, 302, 201, 395, 435, 436, 427, 333, 295, 153 (A), 323, 504, 502 of the IPC as well as offence punishable under Section 135 of the Bombay Police Act after about 21 years of registration of case finding therein no credible against the accused persons.

BRIEF FACTS OF THE CASE

It was alleged that accused persons have committed offences under aforesaid sections during the riots erupted in Gujarat after Godhra Train burning incident in which 57 Karsevaks were burnt to death. F.I.R. was registered by Policemen/Complainant. Evidence were examined. Statement of witnesses were recorded and recently trial was concluded.

HON’BLE COURT’S OBSERVATIONS

At the outset, Learned Judge Harsh Balkrishna Trivedi observed that “Communal Violence in India is not a new phenomenon. Communal riots in India have persisted for long times and are usually caused by the trifle dispute and intolerance, manipulation of religious artifacts, intrusion by others on festivals, conflicting prayer time, dispute over places of worship, intermarriage, desecration of holy places, sexual offences rumors on issue of encroachments or the presence of anti India agents.”

Learned Trial Court on the witnesses produced by the prosecution observed that

“Prosecution in support of present case examined total 130 witnesses and produced numerous documentary evidences. We are aware of the maxim, “Evidence has to be weighted and not counted. In cases on hand the Ld. Prosecutor submitted number of evidences but he could not prove the aforesaid charges beyond reasonable doubt.

The cause of alleged incident is reaction of Sabarmati Train Carnage at Godhra on 27th February, 2002 and the alleged crimes [dated 28/02/02], were committed by Hindu Fanatical mob, wherein the accused persons are participants with motive to retaliate. Let me state that any facts of case show cause of the crime, is relevant u/s 7 of the I. E. Act and the facts showing the motive of the accused is also relevant u/s 8 of the I. E. Act. So far as point of cause for the alleged crime is concerned, the version of Ld. Prosecutor is acceptable, but on the point of motive Ld. Prosecutor failed to prove that fact. Let me state that motive is not ingredient of any offence. In case on hand the prosecution proves violence by unlawful assemblies and damages done to properties but it can not establish linkage of accused persons with violence hence aspect of motive of unlawful assembly pales into insignificance.”

The Prosecution has produced Ex.112 to show that the samples collected from the spot of alleged murder of Harun Tasiya, but Medical expert was not in a position to form any opinion based on the sample. On this the learned Trial Court observed that “In the circumstances, automatically rule of ‘Corpus delicti’ was required to be considered and the bones found from timber shop of Mr.Siddiq Tasiya can not be considered to be of missing person Mr.Harun A. Tasiya. Corpus Delicti is a common law rule that was initiated over 300 years ago. Corpus delicti is a Latin Phrase that means body of the crime. Corpus delicti applies to all crimes, but it is considered to be an especially important concept within any murder investigation. There should be a body or at least a body of evidence for police to work with before the charge someone with a murder case. When someone goes missing and police don’t have a body or at least a body of evidence, how police can further proceed or work with which don’t exist. It is general rule not to convict anybody unless Corpus delicti can be established, that is until the dead body has been found.”

Learned Trial court further on the long period of Trial observed that “In present case the Prosecutor unnecessarily prolonged the case by calling as many as witnesses. In our country the standard of truth amongst the population is very low. In this case testimonies of almost all witness revealed to be wholly unreliable. Several persons of Muslim community who were said to be victims of communal violence in Delol, Derol, Kalol etc. had made oral and written representations of their grievance, before different higher authority, these are at Ex.840 and Ex.840-A etc. I have gone through their written allegations and their statements in police diary. Upon perusing those allegation keeping them next to next. I found that every time they introduced new story.”

While examining testimonies of witness, learned Trial Court observed that “During the investigation, most of the accused were implicated in alleged offence only on the basis of statement of co accused. Their arrest and recovery of weapons, were done through panchnama. None of the panch witness supported case of prosecution as to recovery of alleged weapon. Mere recovery of weapon is not sine quo non to connect the accused with crime. There is no direct evidence in case which shows specific accused was holding and using specific weapon at the time of violence. There is no direct evidence against any accused to have had involved in arosining on 28/2/02 at places shown in the charge-sheet.”

Further, the learned Trial court remarked that “In case of communal riots a large number of persons is generally involved and the evidence is often entirely of a partisan character. There is moreover, great danger of innocent persons being implicated along with the guilty, owing to the tendency of the parties in such cases to try to implicate falsely as many of their enemies as they can. Therefore possbility of innocent persons being falsely implicated, should always be borne in mind by the Judge.”

Furthermore, on the question of when can the charge of rioting sustain ? The learned Trial court observed that “A charge of rioting presupposes the existence of an unlawful assembly with a common object as defined in section 141 of the Indian Penal Code. No charge of rioting can be sustained against any person unless it is proved that he was a member of such an unlawful assembly, and that one or more members of the assembly used force or violence in prosecution of its common object. The offence of unlawful assembly is aggravated if a person joins an unlawful assembly armed with any deadly weapon(Sec.145). In case on hand the prosecution failed to prove recovery and seizure of weapons from the accused person, through independent witness. There is no direct evidence which can link any five accused, out of these accused person with the alleged offence. The court is to see that no innocent persons being implicated alongwith guilty owing to tendency of the parties in communal rioting case to try to implicate falsely as many of their opposite community.”

The prominent Gujarati Author and once great Congress leader, Kanhaiyalal Munshi [1887-1971] has once said ‘If every time there is inter-communal conflict, the majority is blamed regardless of merits of the question. The spring of traditional tolerance will dry up.”

“In case on hand the police has unnecessarily implicated accused in alleged commission of crime. Police implicated prominent Hindu persons of the area Doctor, Professor, Teacher, Businessmen, Panchayat official etc. hails to of a Hindu community. Due to uproar of pseudo-secular media and organization, the accused persons have unnecessarily to face prolonged trial.’

In view of the above, the learned Trial Court acquitted the persons U/s 232 Cr.P.C.

 

Case Title:-  State of Gujarat Vs. Mahesh Dinubhai Valand & ors

Case no. :- New Sessions Cases No.3 of 2017, 9/2017, 14/2017 & 25/2017

Order date :- 12.06.2023

 

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