These two appeals and criminal revision application arise out of a judgment and order rendered by Sessions Court, Kheda on 25.11.2003 in Sessions Cases No.222 of 2002 and No.153 of 2003. 2. These two sessions cases arise out of the same incident and were, therefore, tried together and were disposed of by a common judgment.
3. In all, sixty three persons were arraigned as accused before the trial Court and were charged for offences punishable under Sections 302, 332, 395, 435, 436, 452, 201, 506(2), 323 and 326 read with Section 149 of the Indian Penal Code and Section 135 of the Bombay Police Act.
4. They were all arraigned in connection with an incident that occurred on 03.03.2002 in the outskirts of Village Ghodasar and Village Kuna, wherein, allegedly, they committed murder of thirteen persons of minority community by attacking them with sword, dhariya, sticks and iron pipes and then set the dead bodies to fire. It is also the case of the prosecution that this act was committed by the accused persons in retaliation of finding of three dead bodies of other community in the outskirts of Village Ghodasar.
5. The First Information Report, in this context, was lodged on 04.03.2002 with Mahemadabad Police Station by PSI Mr.
J.B. Gohil and offence was registered. The dead bodies, however, were located on 06.03.2002. One dead body was totally burnt and nothing, except pieces of bones, was found, whereas, rest of the dead bodies were found in injured and decomposed condition. They were also burnt. In some of the bodies maggots were present and same were not identified by at all. The inquest panchnama was prepared at the places where the dead bodies were found, so also the postmortem. The police continued the investigation and having found sufficient evidence to implicate sixty three accused persons, filed chargesheet against them in the Court of Judicial Magistrate, First Class, Mahemadabad, who, in turn, committed the case to the Court of Sessions. During the course of investigation, it was also found that some of the miscreants were absconding, against whom, the investigation was continued. Upon committal by the Magistrate Court to the Court of Sessions, the sessions cases were registered and charge was framed against the accused persons at Exh.12 on 05.03.2003. Later on, the charge was altered and fresh charge was framed against the accused persons on 17.07.2003. The accused persons pleaded not guilty to the charge and came to be tried.
6. The trial Court found that there was no connecting evidence so far as accused Nos.1 to 31 were concerned and acquitted them of all the charges levelled against them. The trial Court found that twelve appellants in Criminal Appeal No.132 of 2004 were guilty of offence punishable under Section 302 read with Section 149 of the Indian Penal Code and convicted them and sentenced to undergo imprisonment for life with a fine of Rs.1,500/ each, and in default thereof, to undergo simple imprisonment for three months.
6.1 The trial Court also found that accused Nos.47, 48 and 49, the appellants in Criminal Appeal No.1589 of 2003, were guilty of offence punishable under Section 324 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years. The trial Court convicted the appellant accused No.32, 34 to 43 and 50 for offences punishable under Sections 147 and 148 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years, under Section 427 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year, under Section 395 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years with a fine of Rs.1,000/ each, in default, further simple imprisonment for two months, under Section 436 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years with a fine of Rs.1,000/ each, in default, further simple imprisonment for two months, under Section 201 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years with a fine of Rs.500/ each, in default, further simple imprisonment for one month, under Section 302 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life with a fine of Rs.1,500/ each, in default, further simple imprisonment for three months. The trial Court also convicted the appellant accused Nos.47, 48 and 49 for an offence punishable under Sections 147 and 148 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years and under Section 324 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years. The sentences were ordered to run concurrently.
7. The accused persons, who were convicted for offence of murder and sentenced to undergo imprisonment for life, have preferred Criminal Appeal No.132 of 2004 and are represented by H.L. Patel Advocates.
7.1 Accused Nos.47, 48 and 49 preferred Criminal Appeal No.1589 of 2003 to challenge their conviction under Section 324 of the Indian Penal Code and are represented by H.L. Patel Advocates.
7.2 It would be appropriate to note that accused No.49, one of the appellants in Criminal Appeal No.1589 of 2003, has expired and therefore, his appeal abates.
8. The victim side have preferred revision application being Criminal Revision Application No.105 of 2004 against fifty one persons to challenge their acquittal for offence punishable under Section 302 read with Section 149 of the Indian Penal Code and other offences. The respondents include three appellants in Criminal Appeal No.1589 of 2003 as well. In the Criminal Revision Application, it appears that respondent Nos.22, 38 and 46 have expired, but, rest of the respondents are represented by H.L. Patel Advocates.
8.1 Similarly, so far as Criminal Revision No.105 of 2004 is concerned, respondent No.22 – Bhemabhai Motibhai Thakor, respondent No.38 – Vikrambhai Bababhai Dabhi and respondent No.46 – Ramanbhai Mangabhai Chauhan have expired as stated above and therefore, the revision would abate against them.
9. The revisionists are represented by learned advocate Mr.
Samirkhan Pathan.
10. We have heard learned advocate Mr. Vijay Patel appearing for H.L. Patel Advocates for the appellants and respondents in the revision, learned APP Mr. Kodekar for the respondent – State and learned advocate Mr. Samirkhan Pathan appearing for the revisionists. We have examined the record and proceedings in context of their respective submissions.
11. Learned advocate Mr. Vijay Patel for the appellants and respondents in the Revision Application submitted that the incident is dreadful and gruesome. Women, old and infant persons have been mercilessly attacked and ruthlessly killed and then the dead bodies were set to fire by the miscreants and if the culprit is before the Court, the Court must deal with such culprit sternly. But, the Court, before arriving at a conclusion whether, the persons, arraigned as accused, are really the miscreants or not, must examine evidence with a close eye. Mr. Patel, learned advocate, submitted that this is a case where as many as thirteen to fourteen persons have lost their lives. In overall, five incidents had occurred at different places, each of the incidents was seen by only one witness. The evidence of the eye witnesses does not inspire any confidence and is not believable. Their conduct is unnatural to such an extent that it would render their depositions doubtful. Admittedly, all the witnesses belong to same community. Admittedly, they were apprehensive of some action by the adversary group and therefore, most of the people belonging to that community left their houses at Village Ghodasar and took shelter at Village Jinjar, but, some of the persons, who were not able to move, stayed back and took shelter in fields where there were standing crops. At that time, crowds from all directions came. From one side, a crowd of about four thousand persons was noticed. From other direction, a crowd of about two thousand persons or fifteen hundred persons was also noticed. The witnesses, along with other relatives, who, ultimately, left victims of the incidents, hide themselves under standing crops in different fields and the victims also took the shelter there, but, some of the victims, who were not able to move swiftly, were noticed by the crowd and were attacked. They also noticed that the victims were attacked and their bodies were burnt, then the accused persons assailants went away. As per the prosecution case, the witnesses were scared and therefore, they did not intervene. They were hiding themselves and came out only after about eight to nine hours and then went to Village Jinjar, where, other relatives and their community persons were there. After going there, these witnesses did not say anything about having seen the incident till they gave their statements before the police on 06.03.2002. Therefore, these witnesses are not reliable and their version may not be relied upon.
12. It was contended that the inquest panchnama and postmortem notes are prepared parallel with overlapping timings. Mr. Patel, learned advocate, submitted that if Exh.13 and Exh.240 are seen, Madinabibi Punjasha Diwan, one of the victims, was not found and only her bangles were found and therefore, it was presumed that she was dead burnt alive. This is nothing but an imagination by the prosecution, according to learned advocate Mr.Patel. One of the witnesses is disbelieved by the Court on the ground that he could not have seen the incident from a long distance. It was, therefore, submitted that the investigation is not properly carried out and does not inspire any confidence. Mr. Patel, learned advocate, submitted that the overall picture, if we see, is that all the five different incidents have occurred and they have been witnessed by five different persons and an attempt is made to show that the incidents had arisen out of same transaction.
13. The appeals are opposed by learned APP Mr. Kodekar.
According to him, the incidents occurred in an atmosphere of fear and lawlessness. One group of persons caused death of another group of persons and again the other group of persons caused death of other group of persons. There was an atmosphere of distress and therefore, the witness could not behave in a natural way, simply because, they had not approached the police immediately. Their evidence cannot be discarded. The evidence gets corroboration from other pieces of evidence and therefore, the trial Court has rightly held that accused persons deserved to be convicted and have rightly been convicted, the appeal, therefore, may be dismissed.
14. Learned advocate Mr. Pathan submitted that investigation has been carried out in a very superfluous manner.
15. In the incidents, as per the prosecution case, following persons lost their lives :
1) Pirumiya Balumiya
2) Anwarmiya Balumiya
3) Mamoodmiya Balumiya
4) Sitabkhan Gulabkhan
5) Noorbibi Gulabkhan
6) Ilamkhan Amirkhan
7) Sujatkhan Nathukhan
8) Karimkhan Nathukhan
9) Mahmadkhan Nathukhan
10) Idusha Baxusha Diwan
11) Husainmiya Belim
12) Sattarmiya Ismailmiya Shaikh
13) Punjamiya Shekhamiya Belim
14) Madinabibi Punjasha Diwan
16. The incident of attack on Pirumiya Balumiya, Anwarmiya Balimiya and Mahmmodmiya Baliumiya is claimed to have been witnessed by Navrang Balumiya Pathan, PW 33, Exh.206.
16.1 The incident of attack on Noorbibi Gulabkhan, Ilamkhan Amirkhan, Sujatkhan Nathukhan, Karimkhan Nathukhan and Mahmadkhan Nathukhan was seen by Inarkhan Umaraokhan, PW 29, Exh.199.
16.2 The incident of attack on Husainmiya Belim is witnessed by Mehmoodmiya Mohbatmiya, PW 22, Exh.162.
16.3 The attack on Sattarmiya Ismailmiya Shaikh and Punjamiya Shekhamiya Belim was witnessed by Jivamiya Punjamiya Belim, PW 28, Exh.196.
16.4 The attack on Madinabibi Punjasha Diwan is seen by Gulzarsha Nathusha Diwan, PW 30, Exh.200.
16.5 Thus, there are five eye witnesses to the incidents, who claim to have noticed five different occurrences. These occurrences have occurred in the outskirts of Village Ghodasar and Village Kuna and each of these locations is at a reasonable distance from each other, which could not be disputed by the prosecution and is established by panchnama of place of incident and the maps produced on record at Exh.222 to Exh.226.
17. If the evidence of Navrangmiya Balumiya Pathan, Exh.206, is seen, he implicates Girish Mohanbhai Sharma accused No.32, Hukaji Chandaji Parmar accused No.35, Bhavan Chandaji accused No.36 and Juvansinh Mabhai alias Bhavsinh Dabhi accused No.37, who were then armed with sword, sticks and dhariya, respectively. According to this witness, they attacked Pirumiya Balumiya with their respective weapons in indiscriminate manner. He also states that thereafter, they poured some black material on Pirumiya Balumiya and set him to fire. This witness also implicates one Bhema Bhola. He claims to have seen this incident as he had taken shelter behind the trunk of a 'Piludi' tree.
17.1 The dead body of Pirumiya Balumiya was examined by Dr. N.B. Bhatt, PW 2, Exh.92, while performing the postmortem, and, according to him, the injuries, which were found, were all incised wounds. No injuries were noticed by him, which can be attributed to a hard and blunt substance, as against the say of the witness, as accused No.35 and accused No.36 were armed with sticks and they attacked the deceased indiscriminately. After the incident was over and the assailants went away, this witness remained at that place for a quite long time i.e. for about 5 to 5½ hours and then rushed to Village Jinjar, where, there were persons of his community in large numbers and where he felt to be safe. On the way, he met Thakorbhai, whom he did not tell anything.
17.2 Navrang Balumiya Pathan also claims to have witnessed attack on Anvarmiya Balumiya and Mahmoodmiya Balumiya at the hands of accused Nos.32, 35, 36 and 37 and one Bhema Bhola. In respect of these two victims also, postmortem was performed by Dr.
N.B. Bhatt, PW 2, Exh.92 and here also, Dr. Bhatt finds that there was also incised wound and no injury is attributed to hard and blunt weapons. Of course, burn injuries were noticed by him in respect of all three i.e. Pirumiya Balumiya, Anwarmiya Balumiya and Mahmoodmiya Balumiya.
18. Another witness, Inarkhan Umraokhan, PW 29, Exh.199, claims that he saw Girish Mohanbhai Sharma accused No.32, Dalpatsinh Andarsinh Dabhi accused No.43 and absconding accused persons Amarsinh Lakha, Balwantsinh Andarsinh, Bhemabhai Andarsinh and Kalusinh Javansinh attacking Noorbibi Gulabkhan, Ilamkhan Amirkhan, Sujatkhan Nathukhan, Karimkhan Nathukhan. This witness also implicates Amarsinh Lakhabhai, Balwantsinh Andarsinh, Bhemabhai Andarsinh and Kalusinh Javansinh, who were not arraigned as accused before the trail Court as they were absconding. They are alleged to have been armed with sword, pipes, dhariya and stick. The postmortem in respect of Sitabkhan Gulabkhan, Ilamkhan Amirkhan, Sujatkhan Nathukhan, was performed by Dr. N.R. Joshi, PW 1, Exh.80, whereas, the postmortem, in respect of Noorbibi Gulabkhan, Karimkhan Nathukhan and Mahmadkhan Nathukhan, was performed by Dr. Dinesh R. Patel, PW 5, Exh.106. The postmortem would reveal that all of them had incised wounds and Sujatkhan Nathukhan, in addition to that, a step wound. Whereas, none of them had any injury, which can be attributed to hard and blunt weapon like stick. This witness Inarkhan Umaraokhan, PW 29, Exh. 199, claims to have seen this incident while hiding himself in a field, where there was standing crop of wheat. He states that thereafter, because he was scarred, he ran into a field where there was crop of fennel and remained there till 700 to 800 in the evening and then went to Village Jinjar.
19. Witness Mehmoodmiya Mohbatmiya, PW 22, Exh.162, claims that he saw Girish Mohanbhai Sharma accused No.32, Ratilal Lakhabhai Chauhan accused No.42, Jivabhai Shivabhai Chauhan accused No.39, Dalpatsinh Andarsinh Dabhi accused No.43 and absconding accused Amarsinh Lakhabhai attacking Husainmiya Belim. According to him, accused No.32 Girish Mohanbhai Sharma was armed with sword and accused No.42 Ratilal Lakhabhai Chauhan was armed with pipe. He also alleged that they indiscriminately attacked Husainmiya Belim and set him to fire after pouring kerosene. The postmortem of Husainmiya Belim was performed by Dr. N.R. Joshi. Here also, Dr. Joshi deposes about having noticed incised wound on neck and chopped off hand, but, does not say anything about having noticed any injury attributable to hard and blunt substance.
20. Witness Jivamiya Punjamiya, PW 28, Exh.197, claims to have seen accused No.38 Ratilal Dhulabhai Chauhan, accused No.39 Jivabhai Shivabhai Chauhan, accused No.40 Chaturbhai Jesingbhai Parmar, accused No.41 Prabhatbhai Shanabhai Parmar (Chauhan), absconding accused Rama Shankarbhai and Bhema Bhola attacking Sattarmiya Ismailmiya Shaikh and Punjamiya Shekhamiya Belim, with their respective weapons in indiscriminate manner. The postmortem of Sattarmiya Ismailmiya Shaikh and Punjamiya Shekhamiya Belim was performed by Dr. Dinesh R. Patel, who does not depose to have noticed any injury attributable to hard and blunt substance, leaving aside the incised wound. This witness also states that after attack, kerosene was poured on the deceased persons and they were set to fire. He also states that he continued to remain at the place where he had concealed himself and seen the incident till at about 800 pm and then rushed to Village Jinjar to take shelter amongst his community people.
21. Witness Gulzarsha Nathusha Diwan, PW 30, Exh.200, claims that he saw accused No.42 Ratilal Lakhabhai Chauhan, accused No.50 Chandubhai Lakhabhai Chauhan along with absconding accused Amarsinh Lakhabhai attacking Madinabibi Punjasha Diwan. The dead body was not found, only the bones were found and the identification of the bones to be that of Madinabibi is only on the basis of evidence of Jetunbibi Mithusha and Jahirabibi Diwan. This witness also continued at the place i.e. at wheat field, for the whole day and then went to Village Badodara, via Village Jinjar.
22. At this juncture, it would be appropriate to take note of the fact that as per prosecution case, the accused persons committed murder of Sitabkhan Gulabkhan, whose dead body was identified by Inarkhan Umaraokhan, PW 29, Exh.199. But, the prosecution has not led any evidence to show as to who attacked and who caused death of Sitabkhan Gulabkhan.
23. It transpires from the evidence of Dr. N.B. Bhatt, PW 2, Exh.92 and Dr. Dinesh R. Patel, PW 5, Exh.106 that the postmortems were performed at the place where the dead bodies were found, because, the dead bodies were in a highly decomposed condition. In this context, it would also be appropriate to record that there was no dead body of Madinabibi Punjasha Diwan. It also transpires from the evidence of these two witnesses that dead bodies of Sujatkhan Nathukhan, Idusha Baxusha Diwan, Husainmiya Belim and Mahmadkhan Nathukhan were not identifiable because of decomposition.
24. The foregoing discussion of evidence would lead us firstly to observe that in case of Madinabibi Punjasha Diwan, the evidence is only in form of Gulzarsha Nathusha Diwan, PW 30, Exh.200. He states that he saw Madinabibi Punjasha Diwan being attacked, but, at the time of drawl of panchnama on 06.03.2002, no part of the body of Madinabibi Punjasha Diwan was found. All that was found were pieces of bones and two bangles of white metal. Barring this, there is no evidence. The medical evidence and the evidence of Forensic Science Laboratory would reveal that DNA of bones was not performed as it was not possible. It was also not possible to ascertain whether the bones were that of a female or a male. All that emerges is that the bones were human bones. Witness Gulzarsha Nathusha Diwan, therefore, is the only piece of evidence to show that Madinabibi Punjasha Diwan was attacked by accused No.42 Ratilal Lakhabhai Chauhan and accused No.50 Chandubhai Lakhabhai Chauhan along with absconding accused Amarsinh Lakhabhai that they were armed with dhariyas. In absence of dead body, it is not possible to know whether there were any injury attributable to Dhariya. It is not possible to know, in absence of dead body, whether the bones were that of Madinabibi Punjasha Diwan and the conduct of Gulzarsha will have also to be considered, which part we propose to discuss in the later part to follow, where we discuss about the conduct of all the witnesses, whose conduct has so many factors in common. But, at this stage, we would only observe that there is no dead body of Madinabibi Punjasha Diwan. There is no other evidence to show that the dead body was that of Madinabibi Punjasha Diwan, except finding of bangles, which have been identified by witness Jetunbibi Mithusha and Jahirabibi Diwan. We, however, are not able to reconcile as to how the bangles were remained intact when the whole dead body was burnt. We halt at this stage so as not to make further observation regarding death of Madinabibi Punjasha Diwan.
25. Having scanned the evidence of eye witnesses Navrangmiya Balumiya Pathan, Inarkhan Umaraokhan, Mehmoodmiya Mohbatmiya, Jivamiya Punjamiya Belim and Gulzarsha Nathusha Diwan, we find that none of these witnesses claimed to have seen any assault by the accused on Sitabkhan Gulabkhan Pathan and Idusha Baxusha Diwan. There is no other evidence on record to connect any of the accused persons with death of Sitabkhan Gulabkhan Pathan and Idusha Baxusha Diwan. Undoubtedly, these two persons have died, but, who caused the death is not brought on record. It would also be appropriate to record at this stage that even the trial Court has accepted that there is no evidence as to death of Idusha Baxusha Diwan or as to homicidal death of Idusha Baxushah Diwan. There is no eye witness to the incident of alleged attack on these two persons by the accused and the person, who identified the dead body of Idusha Baxusha Diwan viz., Manusha Idushah Diwan, has not been examined by the prosecution. Therefore, none of the accused persons can be held responsible for death of Sitabkhan Gulabkhan Pathan and Idusha Baxusha Diwan.
26. Now, if the evidence discussed above is examined in the context of the ocular evidence of witness claiming to be eye witness, Navrang Balumiya Pathan, in his deposition, states that amongst others, one Bhema Bhola was also one of the assailants of Pirumiya Balumiya. This Bhema Bhola is nowhere emerging as a suspect or accused during the course of investigation and trial. Similarly, Jivamiya Punjamiya Belim, in his evidence Exh.197, claims to be eye witness of attack on Sattarmiya Ismailmiya Shaikh and he also claims that besides accused Nos.38 to 41, Bhema Bhola was also an assailant of Sattarmiya Ismailmiya Shaikh. Again, Bhema Bhola is nowhere emerging as a suspect or as an accused either during the investigation or trial. We do not even know whether any such Bhema Bhola exists or not and no explanation has come forward from the prosecution side regarding such person.
27. Witnesses Navrang Balumiya Pathan, Inarkhan Umaraokhan, Mehmoodmiya Mohbatmiya, Jivamiya Punjamiya Belim and Gulzarsha Nathusha Diwan, all claimed to have witnessed attack on different persons at different places. They have also claimed that they concealed themselves in field or behind the tree or over the tree and remained there for hours together after the episode was over and the assailants had gone away. Thereafter, they went to Village Jinjar, where there is a large number of population of their community, where they felt safe and they remained there for three days. During these three days, they have not whispered anything about the incidents. They do not speak anything about such incidents having occurred. They do not speak anything about having seen such incidents nor do they speak about involvement of the accused persons in such incidents. It is only on 06.03.2002 i.e. after three days that they discussed about having seen the incidents and then gave the statements implicating the accused persons.
27.1 In our view, the conduct of all these witnesses is on one hand consistent and on the other hand unnatural. Consistency in natural conduct can be accepted, but, not in unnatural conduct, so long as they hid themselves behind the crop or behind the tree and do not either intervene or challenge or flee is understandable. It is one's individual quality and in given set of circumstances, as they say, natural also, that a man would try to save himself against the crowd. But, when the crowd has gone and the risk has ceased to have exist, they continued to remain under shelter, is something unnatural and when they come out from their shelter, they do not go to the place where the dead body is lying, but, they go to Village Jinjar for taking a shelter. Witness Navrang Balumiya Pathan on way to Village Jinjar meets Thakorbhai, so also one person belonging to other community, but, he speaks nothing to Thakorbhai about the incident nor does he say that he was apprehensive of attack from these persons and therefore, he did not say anything to him. The other witnesses also go and take shelter in the evening of 03.03.2002 at Village Jinjar and stayed amongst their own people, in whom they had faith and therefore, they had taken shelter with them. They do not say anything to them either on 03.03.2002 or on 04.03.2002 or on 05.03.2002 or even on 06.03.002, which is very unnatural. There is no explanation coming from any of the witnesses for such nondisclosure and such unnatural conduct. Assuming for a moment that because of the mob attack, he would have scarred, but, that would get off moment the person is with his own people in whom he has trust and from whom he seeks protection and therefore, normally, conduct would have to disclose of the occurrence, if they had seen the same. There is no other consistent evidence or contemporary evidence to lend support to the version of the eye witnesses.
27.2 In the case of Alil Mollah versus State of West Bengal reported in AIR 1996 SC 3471, the Hon'ble Supreme Court has observed that person, claiming to be eye witness to a murder of his employer, though he reported on duty on next day, did not tell anyone about the incident and at a later point, gave a statement to the police, the witness did not tender any explanation therefor, and, remained silent, the Court observed that the accused is liable to be acquitted and no conviction can be passed on the evidence of sole eye witness, when there is no corroboration of independent evidence. In the instant case also, all five eye witnesses claimed to be witness to different incidents of attack on different persons or group of persons. The incidents are, therefore, independent of each other and each of the eye witnesses is, therefore, solitary eye witness for the independent incident. None of the witness is claimed to have seen any incident in respect of other persons as claimed by other eye witnesses. The Court is, therefore, required to appreciate the evidence of eye witnesses with a keen eye, where, in that case, the witness did not disclose to anyone about the incident and gave statement belated without tendering any explanation for silence for the period. In the instant case also, the eye witnesses have kept mum for three days that too amongst their own people, when they claimed to have seen such dreadful incident. It is difficult to believe that a person would remain silent for such a long time and reveal nothing, if he has really seen such an incident. The conduct, therefore, renders the deposition doubtful.
27.3 It is true that the conviction can be founded on evidence of sole eye witness, but, that is only if the evidence of that witness is found to be truthful, trustworthy and honest. Where there is solitary eye witness, Court has, therefore, looked for some corroboration or some contemporaneous materials or evidence. At this stage, if medical evidence is seen, it is clear that none of the dead bodies had any injury attributable to hard and blunt substance. The injuries were all incise in nature, except one found on person of Sujatkhan Nathukhan, which was a stab injury. These injuries were attributable to sharp cutting instrument. Whereas, the case of these witnesses is that the assailants had hard and blunt substance like pipe or stick with them and they attacked the deceased persons indiscriminately. It would be reasonably expected some marks on some parts of the body of some, if not all, of the deceased persons. Learned APP explained that though the attack was made indiscriminately, because of decomposition, the marks of incised injuries may not remain visible. Though attractive, we are unable to accept the argument for the reason that the prosecution has not led any evidence to show this possibility.
27.4 At the cost of repetition, we may also say that witness Navrang Balumiya Pathan and witness Jivamiya Punjamiya Belim have tried to rope in Bhemabhai Bholabhai and have shown as one of the assailants. There are no whereabouts or existence of such person, leaving aside the involvement. We also find that some of the witnesses have admitted that they had sworn affidavit before they deposed before the Court and in those affidavits, they had not shown involvement of the accused persons. These witnesses are ;
1) Jivamiya Punjamiya, PW 28, Exh.197
2) Gulzarsha Nathusha Diwan, PW 30, Exh. 200
3) Inarkhan Umaraokhan, PW 29, Exh.199
4) Navrang Balumiya Pathan, PW 33, Exh.206
28. This would, therefore, mean that these witnesses are not sure in themselves. They go on changing their stand or they disclose only the material that they want to and they do not come out with whole truth and no reliance can be placed on such solitary witnesses to each of the five incidents.
29. So far as offences relating to bodily injury or attempt to murder are concerned, the witnesses are;
1) Amjadkhan Nasibkhan, PW 23, Exh.184
2) Pathan Nasibkhan, PW 24, Exh.187
30. Their evidence also suffers from the same defect of non disclosure of the incident for three days. They do not disclose to anyone about having witnessed such an incident. It is only after the police arrived then they claimed to be eye witnesses.
31. In the opinion of this Court, therefore, the prosecution cannot be said to have proved the guilt of the accused to the hilt, howsoever gruesome the crime may be. Only the guilty can be punished and that guilt has to be established by prosecution beyond reasonable doubt. In the instant case, the evidence of eye witnesses is shaky and is not supported by any corroborative piece of evidence. The conduct of the eye witnesses makes their evidence more shaky. We are, therefore, of the view that the trial Court erred in relying upon such evidence and in recording conviction.
32. So far as Criminal Revision Application No.105 of 2004 is concerned, it is against fifty one persons. Thirty one persons were arrested by police on 04.03.2002 while they were allegedly travelling in a vehicle with weapons. Barring this, no other evidence has come on record to connect them with the offence and the trial Court, therefore, recorded their acquittal of all the charges. They are arraigned herein as party respondents. In our opinion, no interference can be made in such a situation in exercising of revisional jurisdiction.
33 As stated hereinabove, we do not find the evidence led by the prosecution to be trustworthy and no conviction could be founded on such shaky evidence. The revision against rest of the respondents, therefore, cannot be entertained, and must fail.
34. For the foregoing reasons, Criminal Appeal No.1589 of 2003, so far as it relates to Accused No.47 – Jugabhai Dhulabhai Sodha Parmar and Accused No.48 – Bhemabhai Hartanbhai Dabhi, is allowed. Their conviction is hereby set aside. Accused No.47 – Jugabhai Dhulabhai Sodha Parmar and Accused No.48 – Bhemabhai Hartanbhai Dabhi, the appellants in Criminal Appeal No.1589 of 2003, are on bail and therefore, their bail bonds stand cancelled. Fine, if paid, shall be refunded to them.
35. Criminal Appeal No.132 of 2004 is also allowed.
Conviction recorded by the trial Court in respect of Accused No.32 – Girishbhai Mohanbhai Sharma, Accused No.34 – Ranmalsinh alias Ajit Amarsinh Chauhan, Accused No.35 – Hukaji Chandaji Parmar, Accused No.36 – Bhavanbhai Chandabhai Parmar, Accused No.37 – Juvansinh Mabhai alias Bhavsinh Dabhi, Accused No.38 – Ratilal Dhulabhai Chauhan, Accused No.39 – Jivabhai Shivabhai Chauhan, Accused No.40 – Chaturbhai Jesingbhai Parmar, Accused No.41 – Prabhatbhai Shanabhai Parmar (Chauhan), Accused No.42 – Ratilal Lakhabhai Chauhan, Accused No.43 – Dalpatsinh Andarsinh Dabhai and Accused No.50 – Chandubhai Lakhabhai Chauhan is hereby set aside. They are acquitted of the charges levelled against them. They shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to them.
36. Criminal Revision Application No.105 of 2004 also stands dismissed.
Sd/ [A.L. Dave, J.] Sd/ [N.V. Anjaria, J.] #MH Dave/PS