173. The evidence of Taufel [P.W.26] shows that at the material time, he was working in the Best Bakery and was also residing there. That riots started on 28/02/2002. Taufel has given the date of incident as ’28/02/2002', but it is an obvious mistake and no dispute on this has been raised. There is no doubt that the alleged incident took place from the night of 01/03/2002 till the morning of 02/03/2002. Taufel [P.W.26] states that after having their dinner, he along with Shehzad [P.W.28], Raees [P.W.27], Sailun [P.W.32], Baliram and Ramesh, all of whom were working with him in the Best Bakery, were sitting on a cot [Charpaee] kept in front of the bakery. That Kausarali – Saherunnisa’s [P.W.40] brother and husband of Taufel’s sister – one Prakash – another person working in the Best Bakery – were also with them. Taufel states that at that time, the rioters came there holding mashals, swords and giving slogans ‘maro, kato’. According to him, the rioters were about 400 to 500. Taufel and others started going upstairs. Kausarali however, remained behind. Lulla [Aslam’s (P.W.42) brother] also remained behind. Kausarali and Lulla were assaulted by swords. Both of them fell down. Taufel and others lifted them and took them up – i.e. on the first floor of the building. That the rioters then set the house of Aslam [P.W.42] on fire. They also set on fire the vehicles belonging to the owners of the Best Bakery. That wakhar of Lal Mohammad [P.W.36] was also set on fire and then house of the owners of the Best Bakery was set on fire. That after keeping Kausarali on the first floor, Taufel and others went to the terrace. The family members of late Habibulla Shaikh – the owner of the Best Bakery – also went to the terrace of the said building. Taufel then speaks of three women and four children being on the first floor, apart from Kausarali and Lulla. Obviously, this refers to the wives of Firoz and Aslam, their children and Sabira.

174. Taufel has described the incident that was going on throughout the night. That rioters were throwing bottles filled with kerosene.

175. Taufel then states how in the morning the rioters asked Taufel and others to come down and that how they made them get down from the terrace by tying two wooden ladders together. Taufel then speaks of the rioters tying down the hands of the women and then the women being taken in a room. Taufel then describes how, after tying the hands and legs of the men, the rioters started assaulting them; and that after assaulting them they poured kerosene over their bodies and set them on fire.

176. It was not asked to Taufel as to how he and others survived, or how the incident ended, but Taufel has stated that after the police had come, they were taken to the hospital. Taufel then describes the injuries sustained by him and also states that they were caused by sword.

177. Taufel also states about Baliram, Prakash and Ramesh being killed in the incident because of the assault on them with swords which took place in the morning.

178. Taufel has identified the swords marked as ‘Art.R/16’ and ‘Art.R/23’ as the swords, with which he was assaulted.

179. Taufel was unconscious when he was admitted in the hospital. He was brought in casualty at 12.25 p.m. He was admitted in D/4 Ward, Surgical ‘F’ Unit at 1.00 p.m. Evidence of Dr. Meena Robin [P.W.46] and Dr. Choksi [P.W.62] shows that Taufel was discharged on 19/03/2002, against medical advice.

180. The evidence shows that Taufel had sustained the following injuries:

i) I.W. on Lt. occipital region – 10 cm x 2 cm x 1/2 cm,

181. Taufel went to his native place in U.P. after his discharge from hospital. He was not examined in the previous trial held at Vadodara. He came to Mumbai about 10 to 15 days before the date on which his evidence was recorded.

182. Thus, Taufel’s presence during the incident, apart from not being challenged at all, is corroborated not only by the evidence of other witnesses – including the hostile witnesses – but also by the injuries sustained by him. That he is a victim of the incident is clear. The evidence of the happenings of the incident, as given by Taufel, is convincing. It is, apart from being corroborated by the evidence of other witnesses, also supported by the circumstances sufficiently proved.

183. This is the substance of the evidence of Taufel, so far as the incident is concerned. The evidence of Taufel, which seeks to connect some of the accused with the alleged offences or is relevant in that context, may now be seen.

184. Taufel states that in the night he had seen, among the mob of rioters, some persons who were known to him. Taufel claimed that he would be able to identify those persons, if he would see them, though he did not know their names. Taufel also claimed that he could identify the persons who assaulted him and the persons who asked him to come down; and that some of them he knew well, though did not know their names.

185. Taufel identified 7 accused [out of 17], by pointing out towards them, in the Court. He identified Sanjay Thakkar [Accused No. 11], Ravi [Accused No. 21], Dinesh [Accused No. 15], Bahadursinh @ Jitu [Accused No. 12], Shanabhai [Accused No. 16], Kamlesh [Accused No. 1 9] and Suresh Vasava [Accused No. 20]. Taufel has identified the said accused, from among all the accused before the Court, after making all of them stand in a row, at random. It may be observed at this stage, that the accused persons were never made to occupy any fixed places during the trial and they were never made to sit in the Court hall according to the serial numbers given to them in the case, or in any other fixed order.

186. A request was made by the learned Advocates for the accused that the name of the accused who would be identified and pointed out by Taufel should not be disclosed to him. It was submitted that the names of such accused should not be uttered loudly. This request was accepted. As such, the accused were not made to give their names after being pointed out by Taufel, within his hearing. The names of the accused identified by Taufel were not pronounced openly in the Court. The identity of the accused pointed out by him was ascertained not within the hearing of Taufel.

189. The purpose of the extensive cross-examination regarding the topography of the Best Bakery building is difficult to understand and at any rate, nothing which would affect the prosecution case, has been elicited through the cross-examination.

190. It may be observed at this stage, that some of the challenges to the evidence of the occurrence witnesses who have supported the prosecution are on grounds which are common to all of them. It is contended that these witnesses have come specifically to depose in this case; and that they had come to the Court, not on being served with a summons issued by the Court or because of the information given by the police, but at the instance of highly interested agencies. It is contended that these witnesses are highly interested in the prosecution; and that community interest is involved in the matter. Suggestions in respect of some other witnesses, [though not in respect of Taufel], have been given that they have been tutored by Smt. Teesta Setalvad, the Secretary of the organisation ‘Citizens for Justice and Peace’ who were instrumental in securing an order of retrial of the case. Since these and some other contentions raised on behalf of the accused by their learned Advocates are common to all the witnesses, it would be convenient to discuss all of them together at a later and appropriate stage. For the present, only the contentions which are raised with reference to the individual witnesses may be taken into consideration.

191. A contention about the impossibility on the part of the supporting eyewitnesses to view or see the mob or any persons therein, because of lack of light, darkness, smoke, etc. has been raised. A contention about the impossibility on the part of the supporting occurrence witnesses to have seen the mob, or some of the rioters, on the basis of the topography of the place has also been raised. As these contentions are general and common with respect to all the supporting occurrence witnesses, I think it proper and convenient to discuss the same later, after having discussed the evidence of all of the supporting witnesses, rather than repeating the same discussion with respect to the evidence of each witness. At this stage, I only observe, that all these contentions are without any substance.

192. Taufel is sought to be contradicted by referring to his statement [X-18] recorded by the police during investigation. It may be observed that even as regards the other identifying witnesses, the basic challenge to their evidence is by bringing on record the contradictions in their evidence and their statements recorded during investigation and also by pointing out omissions to state certain facts which have been stated by them in their respective statements to the police. In that context, the authenticity of the police record also needs to be discussed. This general aspect of the case, which is relevant for appreciating the entire evidence in the case, shall be separately discussed. At this stage, the discussion is being confined to the particular alleged contradictions and/or omissions in the evidence of Taufel.

193. … It is a feature of this trial that the version of most of the witnesses and reliability of evidence is sought to be challenged mainly by showing it to be in variance with the statements recorded during investigation and/or the statements made during the previous trial. The reliability of the police record of the statement of witnesses is entirely doubtful in this case, as discussed elsewhere in depth, in this judgement, but that apart, the omission to state that the bakery was closed in the evening, the omission being confined only to ‘in the evening’ is totally insignificant. I cannot help observing that even if there would be an omission to state that bakery was closed, without anything more still even that would have been of no significance and not worth bringing on record. Still, I have thought it fit to discuss this at some length, as it serves as an illustration as to the insignificance of several such omissions brought on record, unnecessarily.

194. In an attempt to give added weight to the omissions and contradictions, it was put to Taufel that the facts of the case were more fresh in the mind of Taufel when inquiries were made with him by the police in the hospital, than the time when he gave evidence before this Court, to which Taufel has replied that he had sustained several injuries; and that at that time, he could not state the facts properly. Judging by the injuries sustained by Taufel which are reproduced above, it is not possible to believe that Taufel was absolutely normal and in a condition to narrate all the details to the police. Apart from the injuries, the magnitude of the offence and the length of time during which the incident was spread over, it cannot be doubted that it must have been a terribly frightening experience for Taufel and other victims. Taufel and others were trapped throughout the night in the midst of a violent mob. Taufel had not only suffered a brutal attack himself but had witnessed one on his colleagues. Some of the persons had died in the night itself due to burns. This, coupled with nature of serious injuries suffered by Taufel, certainly makes it possible that at that time, he was not in a position to state facts properly to the police. In fact, it is rather impossible to think that he could state the facts properly before the police, at that time.

195. By disliking the above answer given by Taufel, he was asked in further cross-examination whether he stated to the police that ‘no inquiries should be made with him at that time as he had sustained serious injuries; and that his statement should be recorded, later on’. Taufel answered that he did not state so. In my opinion, there is no substance in the contention that is sought to be made out by questioning in this manner. It is a fact that Taufel had undergone a terrible experience and undoubtedly he was in a traumatised condition. Additionally, he had sustained very serious injuries on his head. The police were unusually busy and occupied with the law and order problem, apart from the fact that a large number of cases of offences committed as a part of communal violence were being recorded during the relevant period. As such, how accurate and how detailed the statement made by such an injured person, as Taufel was, can be anybody’s guess. Thus, not much importance can be given to the alleged omissions in the statement of Taufel recorded during investigation. Certainly, his testimony in the Court cannot be discarded or doubted on the trivial matters brought on record by way of ‘omissions’.

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200. Taufel’s version before the Court that the rioters came there holding mashals and swords and giving slogans ‘maro’ ‘kato’ was sought to be contradicted by bringing on record that he did not state before the police, that the rioters came there holding mashals and swords. It has been brought on record through PI Baria that Taufel did not state so before him. I find that though no specific statement as was put to PI Baria and to Taufel was made by Taufel during investigation, there is absolutely no value to the failure to make such a statement. It is a matter of regret, that the concept of omissions is apparently not properly comprehended by the learned Advocates for the accused. An omission which amounts to contradiction by reason of it being unable to stand along with the version given in the Court is what is relevant and significant. Now, here, Taufel has clearly spoken about the rioters assaulting him with swords. It would be absurd to say – when Taufel speaks of rioters assaulting with swords – that his omission to state that ‘they came there with swords’ has any value. Obviously, the rioters had swords with them. When that they had swords is clearly stated by Taufel, pointing out this omission to state that they came with swords, is rather strange, because there is no challenge to the story of assault by sharp weapons, which even otherwise, cannot be doubted…

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213. Taufel [P.W.26] has admitted in the cross-examination that neither Kausar nor Lulla were assaulted in his presence. Taufel has clarified that he had seen the rioters talking to them, but not actually assaulting them. In my opinion, this shows that the witness is honest. He has avoided making any false claim of having seen the rioters assaulting Kausarali and/or Lulla.

214. It is again confirmed by Taufel in his cross-examination, that 7 accused could be identified by him in the Court, in spite of the time gap of about 2.1/2 years because he knew them since previously. In my opinion, the fact that the accused identified by him in the Court were known to him previously, is satisfactorily established.

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217. On the basis of his inability to give description of the accused persons, it is contended by the Advocates for the accused, that the evidence of identification of the accused by Taufel is not reliable. It is contended that his inability to describe the features of the persons identified by him without looking at them, makes the value of his evidence doubtful. I am unable to agree with the learned Advocates. In my opinion, the ability to give description is totally different from the ability to recognise. Description of persons without looking at them can be given if there is sufficient power of visualising it and also of expressing it. The supposition that there exists a conscious and well thought process of recognition to the effect that one first visualises the features and the relevant details of another; and after visualising the same in mind, compares the features of one who is sought to be got identified; and after comparing in his mind the similarity of the features that he comes to the conclusion of both the supposed two persons being one and the same, is not correct. A person who lacks the power of visualisation and the power of describing, or either of them, would not be able to give description, but, that because of the lack of such power or powers, he would not be able to recognise, is not a scientific or studied conclusion.

218. A man may be unable to give the description of another by the reason of not having power of imaging, but when he would see that person, he would be able to immediately recognise him. Wigmore, in his Principles of Judicial Proof [Published by Boston Little, Brown and Company 1913], which is a compilation of authoritative writings on the relevant subject, has referred to a passage from G.F. Arnold’s psychology of legal evidence [on pg.467 of Wigmore’s book] and has quoted the said learned author, who has advocated the aforesaid proposition. The learned author G.F. Arnold has, while explaining the point, pointed out that the lower animals which have at best only a rudimentary power of imaging, often display a marvellous power of recognising; and that it is often lost sight of that in memory we only know retention through the fact of revival. The point can be further illustrated by pointing out that a child who may not be able to describe or may even not know the relevant words or their meaning which may be necessary for describing, easily recognises his own toys or his shoes, etc. Thus, resemblance of the matter is felt by an individual; and that it does not depend on his ability of imaging it before hand or visualising it without looking at that particular object. Thus, the evidence of Taufel regarding the identity of the accused identified by him as the culprits, cannot be discarded or disbelieved on the ground of his inability to give their description to the police or to the Court.

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220. After the cross-examination was over, Taufel volunteered to make a statement before the Court. On being permitted to do so, he said that he knew the names of four of the seven accused persons identified by him, prior to the incident; and that due to fear, he had not disclosed this fact earlier. He gave the names of the said four accused as Dinesh, Shanabhai, Ravi and Jitu. In view of this statement, the Advocates for the accused were permitted to cross-examine Taufel further. It is contended on behalf of the accused that giving of the names of said accused as has been done by Taufel, is a result of tutoring and an after thought. It is contended that if Taufel was afraid of giving the names of the accused earlier and that too, to the extent of telling a lie to a specific question by the Court about the knowledge of the names of the accused, why did he thereafter, disclose this.

221. I have carefully considered the matter. In my opinion, the evidence of Taufel cannot be disbelieved on this ground. The possibility that he was more scared of specifically taking names of any accused, even when he identified them in the Court, cannot be ruled out. I am not inclined to give much importance to the answers elicited from Taufel, as to when he developed the fear and when it had gone etc., in as much as it would be difficult for anyone to understand and/or to explain the precise working of his mind, or the feelings in that regard. The question would be whether Taufel’s reaction, as has been explained by him, can be held to be an impossible reaction on the part of any person, even if he would be frightened. It is possible that by remaining present before the Court on a number of dates, Taufel became familiar with the Court atmosphere and also with the method of recording of evidence. It is possible that thereafter he understood its significance, and ventured to disclose this aspect. It may be recalled, that earlier Taufel had made a claim of knowing all the seven accused identified by him in Court, since previously. Then he had said that he knew four of them previously, and then again, had said that he knew all the seven since previously. Apparently, when he spoke about knowing only four since previously, Taufel meant ‘knowing since previously, by name’. It appears that after being somewhat accustomed to the Court atmosphere, Taufel thought it necessary to offer clarification, removing the confusion created by his previous answers, regarding which probably he was feeling uncomfortable. It is certainly possible that as the examination of this witness was progressing, he was thinking of the effect of the answers given by him during the earlier part of the examination. It appears that after thinking, he felt the necessity of offering an explanation. I am, therefore, not able to disbelieve the statement of Taufel, that he knew the names of four of the accused as Dinesh, Shanabhai, Ravi and Jitu since prior to the incident. I am unable to hold that this disclosure, which came from Taufel, was a result of tutoring.

222. It may, however, be observed that the learned Spl. P.P. has not asked Taufel to point out the said four accused. The Advocates for the accused have not made any attempt to get it checked whether Taufel was indeed in a position to identify the said four persons by their specific names. Shri Shirodkar, the learned Senior Advocate, contended that after Taufel had disclosed that he knew four accused by names, it was the duty of the learned Spl. P.P. to question him further – as opportunity was given by the Court to the prosecution – to fix the identity of the said four, to which I am inclined to agree. Having failed to do so, the prosecution has deprived itself of the advantage that might have accrued to it, in the matter of fixing the identity of the accused persons more authentically by Taufel’s pointing them out by their names, in Court. However, that does not mean that Taufel’s earlier evidence gets weakened in any way, on account of the failure of the prosecution to do so. The Advocates for the accused also, for obvious reasons, did not feel the risk worth taking in asking Taufel whether he could point out those accused or not. In my opinion, in this peculiar position, the evidence of Taufel stands as it is; and though it does not further help the prosecution, it also does not weaken the evidence earlier given by him.

223. Thus, on a consideration of the evidence of Taufel, I find that there is nothing which discredits his testimony. There is nothing to indicate that he is an unreliable witness. It is a different matter that his evidence regarding the identification of the accused persons may require further and deeper discussion in the context of the reliability or acceptability of the identification evidence in general in this case, but what needs to be observed at this stage, is that no inherent improbabilities or infirmities which would make me doubt the veracity of this witness, exist in his evidence.

224. Coming to the evidence of Raees Khan [P.W.27], he has narrated the incident and the details regarding occurrence as given by him are absolutely consistent with the evidence of Taufel and of other witnesses. He has described how the incident took place; and that how the riots continued throughout the night, and how he and others were made to get down from the terrace in the morning.

225. After describing the incident, Raees has stated that he could identify the persons who assaulted him and who set on fire. Raees has also stated he had sustained injuries on his head due to assault by sword. According to Raees, he had suffered 3 blows on his head, first by a wooden stick and then by a sword. Raees has identified the swords marked as Art.R/23 and Art.R/21 as the swords, by which he was assaulted or at any rate, swords similar to Art.R/23 and Art.R/21. The stick marked as Art.R/20, was identified by him as the wooden stick by which he was assaulted.

226. The medical evidence shows that Raees had indeed sustained injuries. According to Dr. Smt. Meena Robin [P.W.46], there were following injuries on his person when he was taken to S.S.G. Hospital and was examined by her:

227. Interestingly, according to Dr. Dilip Choksi [P.W.62], who treated Raees in the ward, Raees had the following injuries:

228. The injuries noted by Dr. Smt. Meena Robin [P.W.46] are obviously wrong. The evidence of Raees that he was assaulted by a sword is in conformity with the Incised Wounds on his person as noted by Dr. Dilip Choksi. Dr. Choksi having treated him and observed him for a long time. The evidence of Dr. Choksi, as regards the injuries, is certainly more reliable than the evidence of Dr. Meena Robin who had admittedly hurriedly examined him in the emergency treatment department.

229. Raees was asked to identify the culprits from amongst the accused before the Court. The accused were made to stand in a row at random and not according to serial numbers given to them, in the charge-sheet or in the case. From out of the 17 accused before the Court, Raees has identified Accused No. 18 – Shailesh Tadvi, Accused No. 20 – Suresh Vasawa, Accused No. 15 – Dinesh Rajbhar, Accused No. 16 – Shanabhai Baria and Accused No. 4 – Pankaj Gosai. According to Raees, Accused No. 18 – Shailesh had tied hands and legs during the incident, while the Accused No. 20 was having a sword in his hand. As regards accused No. 15 – Dinesh, Raees has stated that he too was having a sword and was assaulting. Even Accused No. 16 – Shanabhai, according to Raees was present with a sword in his hand.

230. A similar request as was made by the learned Advocates for the accused in case of the identification by Taufel, was made by them with respect to Raees also. This was accepted. As such, the names of the accused identified by Raees were not pronounced openly in the Court and the identity of the accused pointed out by him was ascertained not within the hearing of Raees.

231. The evidence regarding actual happening and details of the incident as given by Raees, need not be discussed here, as the same is very much consistent and in consonance with the evidence of other occurrence witnesses, as also the medical evidence and the evidence of witnesses from the fire brigade and police.

232. It may be recalled that a statement of Raees [Ex.264] was recorded on 02/03/2002, by Abhaysinh [P.W.66]. A contention has been advanced on behalf of the accused that this statement was actually the First information Report; and that Zahira’s statement which is projected as the First Information Report [Ex.136] is actually not the First Information Report, at all. This aspect is stretched to such a length, it needs to be discussed separately, at length. For the time being, I only record the conclusion to which I have arrived at after considering all the relevant aspects – viz., that this contention has no substance whatsoever.

233. Raees was extensively cross-examined. In view of the submission of the learned Advocates for the accused that they did not dispute the occurrence, much of the cross-examination of Raees which deals with the topography, the place where wood used to be stored in the Best Bakery, the items which used to be stored in the bakery etc. has become redundant.

234. Raees was sought to be contradicted with the record of his statements recorded by the police on 02/03/2002 [X-19, later on marked as Ex.264] and his statement recorded by PI Baria [X-20 for identification] on 04/03/2002.

235. Since Raees Khan stated that he peeped outside from the Jali and saw that some persons had assembled there with mashals and swords in their hands, he was asked whether he told the police about peeping outside from the Jali and seeing persons assembled with mashals and swords. According to Raees, he did state so to the police, but according to PI Baria, Raees did not state so. This omission is thus brought on record. In my opinion, it is totally immaterial. The question as to from where Raees saw the mob of persons assembled was not a crucial aspect of the matter at all, and there is nothing to show that PI Baria had asked Raees about it. What was important was the ability or opportunity to see the mob and not from where it was seen. It is not worth even suggesting – though emphatically and vehemently contended by the learned Advocates for the accused – that when the mob had assembled at Hanuman Tekdi and was surrounding the Best Bakery throughout the night, the inmates of the Best Bakery had no opportunity to see the mob or to see that persons had assembled. Merely because Raees states that he peeped outside from Jali and saw it, it does not mean that there is any special significance to the ‘peeping outside from Jali …

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240. Raees has been questioned by Shri Jambaulikar, the learned Advocate for Accused Nos.1-5,10,11 & 12, during the cross-examination, as to the place where he was residing at Mumbai, as to when did he come to Mumbai, etc. An attempt was made to show that Raees is along with some others who are taking keen interest in the prosecution. It is contended that Raees is lying with respect to certain details about his coming to Mumbai and leaving Raibareli, etc. It is pointed out that Raees had previously stated that after going to Raibareli from Vadodara after the riots and before coming to Mumbai, he had not left Raibareli at any time, but later on, Raees admitted that he was, during this period, for some time, working at Ulhasnagar in a country liquor bar. Raees has explained that his earlier statement was not correct and that he stated about not leaving Raibareli because he had not paid any particular attention to that aspect. In my opinion, this is of no consequence at all. Even if it is assumed that Raees wanted to suppress the fact of his having worked in a country liquor bar, the same is understandable. What is significant is that Raees made no attempt to deny that, when put to him. I do not think that this post-incident conduct of Raees, or his having worked at Ulhasnagar in a country liquor bar, can discredit his testimony about the incident in any manner. Raees has admitted that he came to know of the date on which he had to appear in the Court and give evidence, from Smt. Teesta Setalvad, to whom he referred as ‘Teesta Madam’. The cross-examination of Raees in that regard is rather interesting. Raees has stated that he knew Teesta Madam since about 10 to 12 days before his coming to this Court; and the she was introduced to him by one Rahimbhai. Raees stated that Teesta Madam had helped him; and that she helped him for bringing him here to Mumbai. It was put to him that ‘had the help from Teesta Madam not been available, Raees might not have been able to reach the Court’, which has been accepted as correct by Raees. Raees has further admitted that he was in contact with Teesta Madam, after he came to know her; and that he used to talk about this case also. After all these admissions, it was suggested to him that as he had forgotten about the incident, Smt. Teesta Setalvad used to explain to him what was the case, what had happened, etc., which suggestion has been denied by this witness as false.

241. I have carefully considered this aspect. In fact, the alleged tutoring done by Smt. Teesta Setalvad to the occurrence witnesses who have supported the prosecution case has been made a common ground of attack on the evidence of all these witnesses and is being separately discussed. I am unable to accept that the evidence of Raees and the identification of the accused made by him is unreliable on the ground that he had discussion with Smt. Teesta Setalvad. Why and how identifying witnesses cannot be disbelieved merely because they are in touch with Smt. Teesta Setalvad [who is interested in the present prosecution] has, as aforesaid, being discussed separately.

242. When questioned in the cross-examination, Raees has stated that he had no occasion to see any of the accused persons identified by him, after the incident and before he saw them in the Court. However, Raees has clarified that he used to see them in the locality prior to the incident. This clarification has been given by way of a voluntary statement made by Raees. That he knew them since prior to the incident, has come from Raees in a natural way, when the topic of the occasions to see the accused was raised in the cross-examination. I do not think that he is tutored in that regard. In other words, the statement of Raees that he used to see them in the locality prior to the incident, cannot be doubted, particularly because the accused, it is clear from the evidence, are indeed from the locality only, as shall be discussed later in the context of reliability of the identification evidence.

243. The statement that the accused were from the locality, is not the result of tutoring, is further apparent from the following.

Raees was questioned about the mob of 1,000 to 1,200 persons that had assembled and it was suggested to him that he did not know from where those persons had come. Raees, while denying the said suggestion, has stated that they were coming from different directions; and that he could not say by which road they came. After this, following question was asked to him.

This answer has been given by Raees when his attention was not on the point of the previous acquaintance between him and the accused persons. The topic that was being touched was the directions, road or the locality from which the rioters arrived, without touching the point of previous acquaintance between Raees and some of the rioters, but still, the above answer has been given by Raees.

244. A suggestion was put to Raees that since he used to see them [the accused identified by him in the Court], he had become familiar with their faces, which suggestion is accepted as correct by Raees. It has been brought on record that Raees did not give the description of the rioters known to him when his statement was recorded by the police, but as discussed earlier, the inability to give description is totally different from the ability of recognition and the recognition or identification cannot be doubted only on the ground of inability to give description.

245. In the cross-examination, Raees has plainly admitted that he did not know who were the persons who set the bakery on fire. Having stated about the rioters setting the bakery on fire and having stated about the accused being among the rioters, Raees could have easily attributed the act of setting fire to the bakery to some of the accused identified by him. This shows that he is a truthful witness.

246. Raees was asked in the cross-examination that, ‘would it be correct if claimed that the rioters poured kerosene and petrol in the room where the ladies and children were sleeping, and put that room on fire’. Raees has replied that he could not say whether it is correct or not. Raees was sought to be contradicted, surprisingly, on this, by confronting him with his statement [X-20 for identification] recorded on 04/03/2002 by PI Baria [P.W.72]. Raees, however, said that he might have said something else and the police might have recorded something else. Now, at this juncture, it will not be out of place to comment on the exercise undertaken by the cross-examining Counsel. It can easily be observed that the version which was sought to be brought on record by contradicting Raees is a version which increases the magnitude of the offence. In spite of this being so, and in spite of the attention of Raees having been drawn to the fact that the record of his statement made by the police shows so, Raees still did not adopt the statement. This shows that he was particular to ensure that he states only what was really known to him and not what would suit him or, to the prosecution case.

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248. On a careful consideration of the evidence of Raees, it is not possible to believe that he is an untruthful witness. Rather he appears to be a positively reliable witness. Raees, after the incident, had gone to his native place. It is apparent from his testimony, that he had not kept any track of the matter. He was not in contact with the local Muslims at Vadodara. Apparently, he had reconciled himself to what had happened to him in the riots and was looking forward to lead a normal life. It is only after the retrial was ordered, and because of the initiative taken by some social organisations, he came in contact with this subject. His evidence fits in properly with the facts which are otherwise sufficiently proved and is in consonance with the other evidence on record. The version of this witness is not at all shaken in the cross-examination and the so called ‘contradictions’ and/or ‘omissions’ in his evidence are even otherwise insignificant and immaterial, leaving aside the aspect of unreliability of the police record itself.

249. The third occurrence witness who has supported the prosecution is Shehzad Khan Hasan Khan Pathan [P.W.28]. Shehzad Khan, it may be recalled, was working in the Best Bakery and is a victim of the offences. Medical evidence shows that Shehzad Khan had sustained the following injuries:

250. He was brought to the hospital at 12.00 noon and was examined by Dr. Meena Robin. He was admitted in D-4 Ward of the surgical ‘F’ Unit where he was treated and examined by Dr. Choksi [P.W.62]. He was unconscious when he was admitted in the S.S.G. Hospital. His statement could be recorded by PI Baria only on 6th March, 2002, as, before that, he was not in a condition to make any statement. Shehzad Khan, it is apparent, had sustained very serious injuries which had endangered his life. He was discharged from the hospital on 16/03/2002.

… … …

252. Shehzad has stated that he and others were sitting in front of the bakery on a cot in the evening after having food; and that at that time, rioters came with swords and mashals.

253. Shehzad’s version about Kausarali and Lulla and how they were assaulted etc. shall be dealt with while discussing the entire evidence showing as to what happened to Kausarali and Lulla.

254. Shehzad does speak about the rioters setting on fire vehicles of the bakery. He does speak of rioters throwing on the terrace, bricks, stones, kerosene and petrol etc. He does speak of the presence inter alia of Nafitulla’s wife among others.

255. Shehzad has given the details as regards the morning incident. He has described how they got down and how thereafter the ladies were taken to the jungle by the rioters. According to Shehzad, Sanju [identified by him as Accused No.11 before the Court], tied his hands and took away the amount of Rs.5,000/- that was with him. Shehzad has identified the following accused by specifically pointing out to them – i.e. Accused No.12 – Bahadursinh @ Jitu, Accused No.11 – Sanju, Accused No.16 – Shanabhai and Accused No.15 – Dinesh. He has pointed out eight others also, but he has not been able to give their names. These accused are Accused No.20 – Suresh Vasava, Accused No.1 – Rajubhai Baria, Accused No.2 – Mahendra Jadhav, Accused No.4 – Pankaj Gosai, Accused No.14 – Jagdish Rajput, Accused No.18 – Shailesh Tadvi, Accused No.19 – Kamlesh Tadvi and Accused No.21 – Ravi Chauhan. Out of these, Shehzad stated that he knew the name of the Accused No.20, but that, at that time, [when he pointed him out in the Court] he was not able to remember it.

256. Thus, Shehzad has identified in all 12 accused, out of which, Accused Nos. 11, 12, 15, 16 and 20 were known to him by name [though he could not give name of the Accused No. 20 at the time of giving evidence]. The other 7 accused were not known to him by name. However, he has said that all these accused were having danda or sword with them and all were shouting ‘musalmanone mari nakho’.

257. Shehzad has also identified the weapons marked as Art.R/18, Art.R/19 and Art.R/21 as the weapons which the rioters were carrying.

258. Shehzad was called as a witness in the previous trial held at Vadodara. He was not actually examined there, as he was announced to be of ‘unsound mind’ by the Public Prosecutor in-charge of the case. Shehzad has stated about this – viz. of his being called for giving evidence, but being declared as ‘of unsound mind’, and being driven out of the Court.

… … …

262. Since Shehzad stated that he had sustained injury by sword and also pointed out the portion on his head where he had sustained the said injury, he was asked in the cross-examination as to whether he fell unconscious because he was hit on his head by a stone. Shehzad stated that it would not be correct; and that he was hit on his head by a sword and thereafter he had fallen unconscious. Shehzad denied having stated to the police about a stone hitting on his head and thereby his falling unconscious. This contradiction [Ex.365] has been brought on record in the cross-examination of PI Baria. I am not inclined to believe that Shehzad indeed stated so before PI Baria. The most important reason for this is that it is factually incorrect. The injuries sustained by Shehzad are clearly caused due to sharp cutting weapon. Dr. Meena Robin [P.W.46] has stated so and has also stated that one of the injuries, being 12cms in length, is likely to have been caused by a weapon of considerable length. No attempt has been made to contradict the evidence about the possible weapon which would cause such injuries and no attempt has been made on behalf of the accused to suggest that the injury as was sustained by Shehzad could be caused by a stone. In view of my observation about the unreliability of the police record of the statements, it is not possible to accept that Shehzad though actually was injured by sword, stated that he was hit by a stone. Moreover, the stone throwing was going on in the night and not in the morning when Shehzad got down from the terrace. It is difficult to accept that in the morning incident, he was hit by a stone. The learned Advocates for the accused have also not disputed that the evidence shows that the stone throwing was going on in the night only. As a matter of fact an argument has been advanced, based on this aspect that, that Shehzad was assaulted by stone, had fallen unconscious, in the night itself. I am not at all impressed by this contention. The question arises is, how, in that case, he could get down from the terrace in an unconscious condition. The police and fire brigade have, certainly, not brought down Shehzad and other injured. Though, a faint suggestion to that effect has been given, it has not been pressed and obviously it is contrary to the weight of evidence on record. There is no evidence that anybody brought him down, which even otherwise, seems to be impossible, because to bring such seriously injured and unconscious person down by a ladder, could not have been undertaken by the victims. Once the police or fire brigade have not brought him down is clear, the only others who could do so, are either the rioters, or the victims.

… … …

265. Shehzad, on the whole, seems to be a truthful and reliable witness.

… … …

268. Shehzad was asked as to whether, when he saw the rioters with mashals and swords, could he see their faces at that time and Shehzad replied that he could not see their faces at that time. This shows that the witness is truthful. It does not appear that he is interested in implicating accused, at any cost. To the next question put, Shehzad has answered that he did see at that time the five accused whose names, he said he knew. Since he had earlier said that he did not see the faces of the rioters at that time he was further questioned specifically as to whether he saw the five accused at that time, to which Shehzad has replied as follows:

Ans.: Yes. At that time also and in the morning also.

It is evident from this answer that by ‘at that time’ Shehzad means night time and not a particular point of time. This is also relevant in the context of the contention of the learned Advocates for the accused that the witnesses are claiming to have seen the rioters only when they were sitting on charpaee. It is clear that such interpretation of what the witnesses stated would be contrary to logic and absolutely incorrect. When Shehzad has said that he saw the five accused at that time he is referring to night time and not only the time when the rioters came with mashals and swords. Any doubt in that regard is easily removed by the answer, reproduced above.

269. While appreciating Shehzad’s evidence the fact that he was severely injured during the incident and was unconscious for a number of days, cannot be overlooked. Shehzad and his brother Sailun [P.W.32] were not originally from Vadodara. They had come to Vadodara for a job. There was nobody to take their care after having undergone such a brutal attack and survived only by fortune. There must have been tremendous fear in the mind of Shehzad when his statement was recorded on 06/03/2002. In fact, it is impossible to hold that he was in a fully conscious and composite state of mind and could accurately narrate the happenings to the police. How he perceived the incident at that time and how the police perceived it, is also relevant in the context of certain omissions particularly with respect to give the names of the accused persons. In the condition in which Shehzad obviously was at the material time, his omission to state certain facts to the police cannot be held against him, and his veracity should not be doubted on that count.

270. … In fact, Shehzad clearly admitted that he could only say that the weapons identified by him were of the same appearance as of the weapons seen by him with the rioters; and that he could not say that they were the very weapons. This again shows that the witness is not interested in making a false claim and concedes wherever he is confronted with a correct proposition.

271. As regards the identification of the accused Jitu, Sanju, Shana and Dinesh, Shehzad has given the details as to how he knew them. Accused No.15 – Dinesh is well known to him, as he is the son of owner of one Mamta Bakery. The evidence of Shehzad shows that Dinesh was well known to Shehzad; and that Dinesh used to come to the Best Bakery in connection with business.

272. As regards Sanjay Thakkar also, the evidence of Shehzad shows that he knew him since previously, which should be accepted. I see no reason to disbelieve Shehzad on this.

273. Similar is the case as regards the Accused No. 12 – Jitu.

274. Regarding Accused No.16 – Shanabai, Shehzad states that his house is just by the side of the Best Bakery.

275. There is nothing doubtful in the version of Shehzad as regards his prior knowledge of or acquaintance with the accused identified by him. I do not find any substance in the contention that the witnesses including Shehzad have been tutored to identify certain accused. It may be observed that it is not easy to tutor a person to identify another person not previously known to him. It would require the person tutoring, the witness and the accused to be identified to be together for sometime. At a late stage, a suggestion has come from the defence that ‘the enlarged photographs of the accused persons were shown to the identifying witnesses’, and this suggestion was put to the Investigating Officer – PI Shri P.P. Kanani [P.W.74]. No such suggestion however, has been put to the witnesses themselves. As such, no importance can be given to such a contention. Identifying a few accused, from out of 17 accused, by giving their correct names, there being no wrong identification in the process is a factor which lends assurance to the identification.

276. The cross-examination on the point that Shehzad is receiving community support is not of any significance, in my opinion. That, therefore, he would falsely depose against the accused cannot be accepted, though it can be said that he is certainly an interested witness being an injured person. Being a victim of communal violence, naturally, he has got support of some persons from his community so as to enable him to seek the redressal of his grievance before a Court of Law. Shehzad is also cross-examined on the point of his being introduced to Smt. Teesta Setalvad and her helping him. I do not find anything wrong in anybody helping Shehzad to seek justice by being able to depose before a Court of Law.

277. On overall consideration of the evidence of Shehzad, I find him to be a reliable and truthful witness.

278. The next injured witness is Sailun Hasan Khan Pathan [P.W.32] who was also at the material time working in the Best Bakery. He is the brother of Shehzad Khan [P.W.28]. His presence at the Best Bakery at the material time and the fact that he sustained injuries during the incident is not in dispute, at all. The evidence shows that he had sustained the following injuries:

279. He was brought to the hospital at 11.35 a.m. and was examined by Dr. Meena Robin [P.W.46]. At about 3.15 p.m. he was admitted in D-4 Ward of the Surgical ‘F’ Unit, where he was treated and examined by Dr. Choksi [P.W.62]. By that time, his name had not been ascertained and he was described as ‘unknown’. Sailun was discharged from the hospital on 02/04/2002. The injuries sustained by him were, admittedly, serious injuries and have been described as ‘grievous’ hurt.

280. Sailun has described the incident and has stated how he and others were sitting on a palang when the rioters came with mashals and how after Sailun and others had gone to the terrace, the rioters were throwing stones, kerosene etc. on the terrace for burning the bakery. He also speaks about the morning incident and states that after he and others were made to get down, their hands were tied down by the rioters and assault with swords started. He has identified all the accused by pointing out towards them, except the Accused No. 3 – Haresh Gosai and Accused No.5 – Painter @ Yogesh Verma. Out of these, he has identified Accused No.11 – Sanju and Accused No.15 – Dinesh – by their names as ‘Sanju’ and ‘Dinesh’, respectively. He has identified Accused No.20 as ‘Lala’. He has attributed specific roles to Accused No.11 – Sanju, Accused No.15 – Dinesh and has stated that they were assaulting by swords after tying the hands [or after the hands were tied.] He also states that Accused No.11 – Sanju had taken money of his brother Shehzad.

281. Sailun was unconscious when he was admitted in the hospital. His statement could be recorded only on 06/03/2002.

282. In addition to Sanju, Dinesh and Lala, Sailun has spoken about Jitu. Sailun has stated about Jitu being present with weapon among the rioters, but while pointing him out before the Court, Sailun failed to identify him by name – i.e. as ‘Jitu’.

283. It is submitted by Smt. Manjula Rao, the learned Spl. P.P., that Sailun’s evidence is clear, simple and worthy of credence. According to her, it ought to be accepted fully. Shri Shirodkar, the learned Senior Advocate for the accused, on the other hand contended that Sailun does not seem to be mentally fully fit and his evidence cannot be accepted. According to him, the evidence of Sailun is, on the face of it, unacceptable and that though it is unfortunate, it seems that Sailun suffers from serious mental defects to such an extent that no reliance can be placed on his evidence. The arguments advanced by Shri Shirodkar are adopted by all the other learned Advocates for the accused.

284. Apart from the challenge to the evidence of Sailun on the ground of the same being unsatisfactory and Sailun being an unreliable witness, it is contended that pointing out the accused persons in the court, as done by Sailun, is of no value. It is contended that ‘the accused who have been identified by him have not been identified as the rioters’. Shri Mangesh Pawar, the learned Advocate for the Accused Nos.16, 17, 18, 19 & 21, has pointed out in the memorandum of the written arguments filed by him, the following portion from the evidence of Sailun which has been recorded in question and answer form.

Ques.: When you were made to get down in the morning, who were there? Do you know any of them?

Ans.: If I would see them, I would be able to identify them. [Pg.728, para-11].

285. Sailun has told the Court that he knew the names of two of them and has given the names as Sanju and Dinesh. It is thereafter, that Sailun was asked as follows:

‘Whether any of those persons are now present in the Court hall?’

It is thereafter, that the identification of the accused persons by Sailun followed. The argument is that the questioning shows that Sailun was asked to identify the persons ‘who were there when he was made to get down in the morning’ and not ‘the rioters’.

286. I have carefully considered this argument. I am not able to accept this contention. It does appear from Sailun’s evidence that either because of the impact of the assault or for whatever other reason, Sailun is not fully normal. His understanding seems to be of less than average calibre, and his mental ability below average. In fact, an attempt was made by the learned Advocates for the accused to show that he was not fit to depose, not being capable of understanding the questions put to him. It is therefore, that a part of his evidence was recorded in question and answer form instead of as a narration. The contention about the incompetence to testify was given up by the learned Advocates for the accused. Among other things, Sailun has admitted that he knew numbers only till 15 and could not count further than that. Sailun also did not know how to use a watch and was unable to understand time from a watch or clock. There was, therefore, undoubtedly some difficulty on the part of the Special Public Prosecutor to get a logical answer to each and every question put to Sailun. However, the contention that he has identified only the persons who were present in the morning; and that the evidence of Sailun does not show that those who were identified by him were identified as ‘the rioters’ or ‘the assailants,’ cannot be accepted. The argument noted above which has been advanced by Shri Pawar, with respect to Sailun’s evidence [recorded on pg.728 of the Notes of Evidence] fails to take into account Sailun’s evidence recorded prior to that. Prior to that, Sailun has described the incident that took place after they – i.e. he and others – had come down. This, he has described by saying that this happened in the morning. The relevant evidence may be reproduced.

"The rioters were throwing stones and petrol. They troubled all of us throughout the night. On the next day morning, we were made to get down ["Hum logon ko utare"]." [Pg.726, para-8 of Notes of Evidence].

287. Thereafter, Sailun was asked clarification regarding what he meant by ‘we’, which he has given. Sailun has then described what happened after they had come down. He has stated that hands and legs were tied. First, the ladies were made to get down. That they were made to get down by using ‘double seedhi’ etc. Sailun has further clarified by saying that ‘After we were made to get down, our hands were tied and the assault with swords started’. [Pg.727, para-10 of Notes of Evidence].

288. Sailun was then asked as to who were injured, when he said that all were injured by sword. Sailun then described the injuries sustained by him. He then said that he was in the hospital for 15 days. Sailun was then asked by the learned Spl. P.P. as to what he knew about the persons who had come along with the ‘mashals’. Now, this has reference to the evidence given by Sailun earlier while describing the incident. For a better and proper understanding, it will be useful to reproduce the relevant evidence here. "After having our meals, we were sitting on a ‘Palang’."

Ans.: It was at about 8.00 to 9.00 p.m. Those persons came with ‘Mashals’ [emphasis supplied]. [Pg.723, para-6 of Notes of Evidence].

289. Thus, it is in this background, the question as to what Sailun knew about the persons who had come along with the mashals was asked. Sailun has replied to that question by saying that they had weapons also; and that they were having swords, sticks and rods with them. It is thereafter that he was asked about who were there when he was made to get down in the morning and pursuant to his answer stating that he would be able to identify them; and that he knew the names of two of them, he was asked whether any of those persons were present in the Court hall. ‘Who were there in the morning,’ is a question that has been asked after the morning incident has been described by Sailun. The question and the answer must be understood in the context of the previous questioning. From the manner in which the examination-in-chief has proceeded, it cannot be doubted that the question that was asked was about the presence of the ‘rioters’ and not of others. The question could not have been understood by Sailun as a question requiring him to point out the persons other than the rioters or assailants. The evidence has to be comprehended not by reading the words out of context. The process of questioning has a continuity, which cannot be overlooked. A single question and answer from the evidence cannot be picked up and interpreted, divesting it of the context. There has been no reference in the evidence of Sailun or even of other witnesses as to the presence of any spectators or others who were unconcerned and unconnected with the mob of rioters. His evidence shows that all along, the talk was about the rioters, whether it was in the night, or in the morning. Moreover, it is not anybody’s case that the accused identified by Sailun were present there and therefore, he had identified them so as to construe the evidence of identification accordingly as is sought to be suggested. Though in the particular question and answer, it is not reflected that those who were identified as present in the morning when Sailun and others got down, were identified as ‘the rioters’ or ‘the members of the unlawful assembly’, if the entire evidence adduced before that is seen, no manner of doubt can be felt that the question was in respect of the rioters, that it was understood to be so by Sailun, and has been accordingly answered. This is further clear from the fact that Sanjay and Dinesh have also been named and identified by name by Sailun as the persons who were ‘among the persons who were present in the morning’. Sailun has attributed specific roles to Sanju and Dinesh. Thus, when Sanju and Dinesh have been identified as the offenders and as a part of the mob of the persons who are said to be present in the morning, obviously, the ‘persons present in the morning’, as referred to, can mean only the persons present in the mob of the rioters. In view of the above discussion, I do not find any substance in the contention that those who have been identified by Sailun as ‘being present in the morning’ have not been identified as ‘the rioters’ or ‘the persons forming the mob of rioters’.

290. In the view that I am taking of Sailun’s evidence, this is not very material, but since this argument has been advanced and since it is not found sound, I have thought it necessary to deal with the same.

291. It is true that many answers given by Sailun while he was questioned – both in examination-in-chief as well as in the cross-examination – show his understanding to be a little less then normal. However, certainly he was found capable of understanding the questions put to him, and was also capable of giving rational answers to them. It is apparent that he has not been able to come out of the impact of the incident fully and perhaps, the serious head injuries suffered by him during the incident together with the horrible experience, which he has undergone, have affected his entire personality. His evidence appears to be somewhat more discrepant, than it really is, because, on many occasions he had replied apparently on the basis of the thought process started by the previous questioning. In such cases, it has resulted in the answer not being exactly with reference to the question put, but with respect to questioning done before. However, it is impossible to hold that he lied or told deliberate falsehood on any aspect of the matter…

293. Even when the Court put the following question to clear up the necessary point, Sailun, though had spoken of assault of the rioters being with swords, did not attribute any roles to anyone except Sanju and Dinesh. It was again asked to him whether he wanted to say anything about anybody else who was identified by him, but Sailun replied that ‘the money that was in his bag was taken away, but who had taken it, he did not know’. Thus, in my considered opinion, though Sailun suffers from some lack of understanding, he cannot be branded as a liar or an untruthful witness. On the contrary, in my opinion, he is a truthful witness.

294. Sailun was asked the following question in the cross-examination:

Ques.: You could tell this to the Court even after gap of about 2.1/2 years, because you remember all these happenings. Is it correct?

to which, he replied as follows:

Ans.: Maar laga hai. Talwar laga hai isiliye jaanta hoon. Poora jism kaat denge to bhi bataoonga. [Pg.733].

295. In my opinion, this answer – particularly the last part of that – is a clear indication of the fear felt by Sailun about the consequences of disclosing the facts and his determination to do so, in spite of that.

297. In spite of the weakness of Sailun and the fact that his mental faculties appear to be somewhat affected, the learned Advocates for the accused, have not been able to elicit anything in his cross-examination, so as to discredit his evidence about the involvement of Sanjay and Dinesh and Sailun’s prior acquaintance with both of them.

298. In the facts and circumstances of the case, only on the ground that he did not disclose certain facts to the police, I am not inclined to discard the evidence of Sailun. In all probability, no proper elicitation was done from Sailun at the investigation stage whether because of the lack of desire or lack of feeling necessity of eliciting further facts or because Sailun was not in a proper condition to disclose the facts.

299. It is contended by Shri Shirodkar, the learned Senior Advocate, that it is not possible to believe that Sailun could make a statement before the police on 06/03/2002 as Sailun himself has stated that for one year, he did not state anything to anyone. Thus, Shri Shirodkar contends that the statement of Sailun, as has been recorded purportedly on 06/03/2002, is bogus. I have carefully considered this aspect. Sailun was severely injured. According to Dr. Meena Robin [P.W.46], when he was admitted in hospital, he was unconscious. According to her, he became conscious only on 12/03/2002, whereas according to Dr. Choksi [P.W.62], who treated him in the ward, he became fully conscious on 24/03/2002. Admittedly, on 4th, he was unconscious and that is why, his statement could not be recorded when the statements of other injured [except Shehzad] were recorded. Even if it is believed that for a short while, Sailun had regained consciousness when his statement came to be recorded by PI Baria, it is difficult to accept that Sailun was in such a frame of mind that it could be expected of him to narrate the happenings in detail, including the names of the assailants or the rioters. In fact, that he was not fit to make the statement is obvious from the medical evidence itself. PI Baria does not state that he took any opinion from any doctor about Sailun being in a fit condition to make a statement. Sailun was asked whether he had told the police about the incident when they had come to him in the hospital. He said that at that time, he did not remember anything. He admits that he did not tell the name of Dinesh to the police and clarifies that he did not disclose anybody’s name to the police. He admits not having stated to the police that Sanju had taken money of his brother and also the fact of money of his brother having been taken away. Sailun admits not having stated anything to the police about Jitu. He even admits not having stated to the police about the rioters coming with mashals. In fact, Sailun himself states not having said anything to the police, except that he was injured by a sword.

300. Under these circumstances, I am inclined to agree with the learned Senior Advocate that the statement of Sailun stated to have been recorded by PI Baria on 06/03/2002, is possibly a bogus statement. It is significant that Sailun’s statement gives the same names of offenders which PI Baria had already gathered from the F.I.R. [Ex.136] and from the statements of other persons recorded by him before 06/03/2002. The possibility of PI Baria recording a bogus statement purporting to be of Sailun, incorporating the information which he had already gathered from others just to complete the paper work and relieve himself of the responsibility of recording the statements of all the eyewitnesses at an early date, cannot be ruled out. In fact, the entire police record in this case and more particularly the statements recorded by PI Baria are of doubtful authenticity and my observations regarding that, have been separately mentioned. However, though I agree with the contention of the learned Senior Advocate about the authenticity of Sailun’s statement [X-152 for identification] dated 06/03/2002 recorded by PI Baria, I entirely differ with him with regard to the conclusion or inference which he expects to be drawn therefrom. Sailun’s statement has been falsely recorded, cannot discredit Sailun under the circumstances. It discredits the investigation in general and PI Baria in particular. Further, this false record, certainly, has not been created to implicate the accused falsely in as much as no new incriminating circumstances or names have been introduced in the statement of Sailun. About the apathy or dishonesty or incompetence of PI Baria, as the Investigating Officer, I intend to make my observations elsewhere in this judgement and by reason of the fact that Sailun’s statement was not recorded properly, or that the record is not accurate, or that no efforts were made to elicit detailed information from him, Sailun cannot be discredited.

301. At the conclusion of the cross-examination, it was put to Sailun that he had not seen any of the accused at the time of the incident, to which, he replied that he had seen them in the morning of the second day. This again shows, in my opinion, the honesty of Sailun. Sailun does not appear to be anxious to implicate the accused falsely by attributing to them various overt acts and also alleging their involvement in the incident that took place in the night. He even does not implicate anyone particularly as the person who assaulted him, though out of so many accused pointed out by him in the Court, he could have pointed out anyone attributing such a role.…

302. … That Sailun suffers from mental or intellectual weaknesses, is not sufficient to discard his testimony or to hold that he could not have remembered anything of incident. Clearly, the incident has been a life changing experience for Sailun and has left its impact on his entire personality. Much emphasise has been placed by the learned Advocates for the accused in the course of arguments, on the mental weaknesses of Sailun as a ground for not placing any reliance on his memory. In this context, it is worth mentioning what the experts opine on this. Hans Gross in his Criminal Psychology [1911 translation, Kaller] has observed that, ‘It is a matter of experience that the semi-idiotic have an excellent memory and can accurately reproduce events which are really impressive or alarming, and which have left effects upon them.’ When Sailun gave evidence, it was very apparent that he had a deep rooted impression about what was done by Sanju [Accused No.11] and Dinesh [Accused No.15]. His reaction in mentioning about Sanju and Dinesh was different from his reaction in pointing out towards others. It appears to me that the acts of Sanju and Dinesh have been greatly impressed upon the mind of Sailun and his memory in that regard cannot be doubted at all.

… … …

305. The last occurrence witness who has supported the prosecution is Smt. Yasmin Nafitulla Habibulla Shaikh [P.W.29]. It may be recalled that she is the wife of Nafitulla [P.W.31]. She is the only member of the family of Late Shri Habibulla Shaikh who has supported the prosecution case.

306. Yasmin [P.W.29] has, in her evidence, described the incident and has identified 12 accused as the culprits. The 12 accused identified by her have been so identified by her, by pointing out towards them in the Court and also by their names. Though Yasmin had sustained only some minor injuries, for which no medical treatment was required, during the incident, she had gone to the S.S.G. Hospital along with the injured.

307. Yasmin’s [P.W.29] evidence has been bitterly and severely attacked by the learned Advocates for the accused. Yasmin’s presence during the incident itself has been severely challenged, though the rigour of the challenge was almost given up at the stage of arguments. Yasmin has been contradicted, by confronting her with her previous statements. The defence witnesses Shri Kumar Swami [D.W.1], Shri Ramjibhai Pargi [D.W.3], Mrs. Khyati Pandya [D.W.4] and Shri Ajay Patel [D.W.5] have all been examined for the purpose of proving the previous statements made by Yasmin, which are said to be contrary to her version in the Court. Yasmin’s evidence is therefore required to be meticulously analysed in the light of all the contentions that are advanced on behalf of the accused.

308. In her evidence, Yasmin states that she had studied up to 10th standard; and that she can read and write Hindi as well as Gujarati. Yasmin was married to Nafitulla [P.W.31] on 19/11/2000.

309. Yasmin has given the details of Late Shri Habibulla Shaikh’s family as it consisted at the material time and has also mentioned about the servants that were employed for running the Best Bakery. Yasmin has mentioned about Taufel, Raees, Shehzad, Sailun, Baliram, Ramesh and Prakash, and also about Kausarali and one Nasru residing in the Best Bakery building at the material time.

310. Yasmin has then described the incident that took place between at about 9.00 p.m. on 01/03/2002 till about 11.00 a.m. on the next day. Yasmin has stated about noticing a number of persons coming from various directions, carrying with them swords, rods and mashals. She states that those persons were shouting and giving slogans to the effect that Muslims should be killed [‘miyako kapo, maro’].

311. Yasmin has then stated about Kausarali and Lulla talking to the rioters and they being assaulted by the rioters. According to Yasmin, Kausarali and Lulla, who were brought to the first floor, were, later on, dragged away by the rioters. According to her, they were unconscious at that time and their bodies were thrown in the fire by the rioters.

312. Yasmin has categorically stated that she knew some of the persons who were in the mob of rioters in the night and she also knew their names. She has mentioned about Sanjay Thakkar [Accused No. 11], Jayanti Chaiwala [absconding accused] and one Painter being present among the mob of rioters, leading the mob and telling them to set fire by pointing out different locations such as ‘idhar aag lagao, udhar aag lagao’.

313. Yasmin states that in the morning, they [she and others] pleaded with the rioters that they be allowed to go; and that they apologised to the rioters. Yasmin then describes the incident that followed thereafter. She describes how they got down from the bamboo ladder brought by the rioters, how they had been assured before that, that they would be allowed to go after giving a little beating, etc. She then speaks of the rioters tying the hands and legs of the men and dragging the ladies towards the jhaadi. She also speaks of the rioters assaulting the men with swords. She states that when the women had been dragged up to some distance, the police came there; and that on noticing the police, the rioters ran away. She claims to have seen the rioters assaulting her husband Nafitulla, Nasibulla, Raju, Taufel, Baliram, Raees, Prakash, Shehzad and Sailun. Yasmin also states that the wives of Firoz and Aslam, 4 children, and her sister-in-law Sabira had been burnt in the night itself while on the first floor. 314. Yasmin has identified Sanjay Thakkar [Accused No. 11], Pankaj Gosai [Accused No. 4], Jagdish Rajput [Accused No. 14], Shanabhai Baria [Accused No. 16], Shailesh Tadvi [Accused No. 18], Ravi Chauhan [Accused No. 21], Rajubhai Baria [Accused No. 1], Dinesh Rajbhar [Accused No. 15], Yasin Khokhar [Accused No. 13] and Haresh Gosai [Accused No. 3]. Though she has stated about Painter and Jitu, she was not able to identify any one as Jitu and/or Painter, in the Court. Yasmin has attributed roles to the accused identified by her. According to her, Dinesh [Accused No. 15] was having a sword with him. Shanabhai [Accused No. 16] was tying the hands and legs. Jitu [Accused No. 12] and Jagdish [Accused No. 14] were threatening to rape the women. Ravi [Accused No. 21], according to her, had snatched the chain which she was wearing around her neck. Shailesh [Accused No. 18] and Raju [Accused No. 1] were involved in the act of catching hands at the time when the men were being assaulted.

315. Yasmin was not examined during the previous trial held at Vadodara. She had not been summoned or called as a witness during that trial. A few days after the incident, she had gone to Chhota Udepur to stay with her parents. About a year prior to the commencement of the present trial, she had gone to Vadodara and had started residing in the Best Bakery premises itself.

316. Yasmin was asked in the examination-in-chief as to whether she would be able to identify the weapons used by the rioters when she said that she would not be able to do so, but she would be able to say whether the weapons that would be shown to her, were of the type which the rioters were having. Yasmin has stated that the rioters were having swords of the type as the sword at Art.R/23 is, and also the pipe of the type as Art.R/22 is.

317. Yasmin [P.W.29] has been extensively cross-examined on several points. As already observed, the presence of Yasmin during the incident itself is very severely challenged though the rigour of the challenge was tremendously reduced by the stage of the arguments. However, since it is not entirely given up, I shall examine this aspect of the matter first.

318. It is interesting to note that, that Yasmin was not present at the time of incident at all, does not appear to be a contention based on the knowledge of the accused persons or any of them.

319. The stand of the accused, as appearing from their examination under Section 313 of the Code, is that they are unaware of the incident, any of the victims [including the members of the family of Late Habibulla Shaikh], the witnesses residing in the locality [except Lal Mohammad (P.W.36), whom Accused No. 15 admits knowing] and even the Best Bakery itself. The point that is to be highlighted here is not what the defence of the accused is, or the merits of the defence, but to examine the basis on which the contention that Yasmin was not present at all, has been advanced. It is the case of the prosecution that Yasmin was very much present during the incident and along with the other witnesses, Yasmin’s statement was also recorded by PI Baria [P.W.72] on 04/03/2002. A copy of Yasmin’s statement is included in the charge-sheet and admittedly, copies thereof were given to the accused. In the F.I.R. [Ex.136], however, there is a mention that Yasmin had gone to her parents’ place at Chhota Udepur, as supposedly said by Zahira [P.W.41], but the same is supposedly corrected by Zahira in her further statement recorded on 04/03/2002.

320. In this background, it is rather interesting that the thought of challenging Yasmin’s presence occurred to the learned Advocates for the accused apparently at a late stage. It is interesting to note that Raees [P.W.27] and Shehzad [P.W.28] clearly speak of the presence of Yasmin [P.W.29] during the incident, but none of them, in spite of a lengthy cross-examination, has been challenged on this aspect. Raees [P.W.27] has spoken about Guddu’s wife being there and there is no suggestion to him that Yasmin was not there at all – let alone a challenge to that evidence. Even Shehzad [P.W.28] clearly speaks of the presence of Yasmin. Raees and Shehzad, both, have described Yasmin as ‘Guddu’s wife’ and there is no challenge to this aspect – viz. that Guddu’s wife refers to Yasmin only and to nobody else. Thus, in spite of elaborate cross-examination of both these witnesses, there was no attempt to question them and to expose the ‘falsity’ of their claim of Yasmin’s presence during the incident. This, in my opinion, is a clear indication of the fact that the learned Advocates for the accused had not thought this part of the evidence of the witnesses open to challenge.

321. Apparently, the support to the contention that Yasmin was not present at all is sought to be derived from the evidence of the witnesses from late Habibulla family, all of whom have been declared as hostile. It is only on being assured of their support on this issue, the challenge to Yasmin’s presence appears to have been taken. What is significant, however, that this assurance was felt before the hostile witnesses were examined in Court. None of hostile witnesses were examined before Yasmin was examined. I am not, for a moment, suggesting that the accused persons are not entitled to take any defence which they may think to be convenient and easier, or that the learned Advocates for the accused persons must take up a line of defence only if specifically instructed in that regard by the accused. However, the persistence with which and the length to which, the claim of Yasmin not being present at all, is pursued by the defence, without it being based on personal knowledge of the accused and without it being supported by any other evidence, is rather strange.

322. The hostile witnesses have denied the presence of Yasmin at the time of the incident. That they have spoken a lie in that regard is however clear.

324. The cassette provides aid in judging the truth or otherwise of the evidence of the occurrence witnesses on a number of points. The visual images and the sounds, conversations and words stored therein provide a valuable insight into the evidence on certain points. It would therefore be appropriate and convenient to discuss at this stage itself whether the video cassette, or rather the contents thereof, are properly proved.

325. I shall, first, briefly consider the admissibility of a video cassette in evidence. A video cassette is a visual and aural record of the events that are recorded therein. It is primarily used for storing visual images but like a tape recorder, it may also store sounds. If an event or happening is relevant, the visual and aural record of the same, contained in a video cassette is also relevant. A video cassette can be admitted in evidence under various sections of the Indian Evidence Act, such as Sections 6, 7, 8 and even 9. A video cassette, to a certain extent, is on par with a document, but because of its capacity to store even the visual images apart from the sounds, it can, for certain purposes, be treated as real evidence and can have more evidentiary value than a mere document. When treated as real evidence, it can be a strong piece of evidence by viewing which, the Court can form its own opinion on the facts in issue or relevant facts.

326. The video cassette [Art.R/27, and subsequently exhibited and marked as Ex.283] is properly proved. Gautam Chauhan [P.W.69], the Videographer, who had done the shooting in question, has been examined as a witness. The evidence of Gautam Chauhan and PI Baria [P.W.72] shows that at the material time, the work of video shooting was done by Gautam Chauhan on behalf of ‘Dimple Video’, who had been given a government contract in that regard. That Dimple Video had been given the government contract is proved from the evidence of Parimal Valera [P.W.65]. Gautam Chauhan [P.W.69] states about going to Daboi Road from the police station, along with PI Baria, for the purpose of video shooting and doing the video shooting in respect of what he described as ‘Best Bakery Hatyakaand’. When the cassette was produced, it had a paper slip pasted on it which, according to Gautam Chauhan, was in his handwriting. Gautam Chauhan states that on that date, when he had gone there, the Best Bakery building was burning. He also speaks of some persons, who were injured, lying there. Gautam Chauhan states that he did video shooting of the Best Bakery building from the front side and also from the rear side, and also in respect of the said injured persons. Shooting in respect of the rescue operation performed by the fire brigade regarding the injured being taken to the ambulance, bringing down the dead bodies, etc., was also done by him. The video cassette [Ex.283] was played over to him in the Court and he has identified the same as the same cassette in which the video shooting done by him relating to the Best Bakery was recorded. After viewing the cassette, Gautam Chauhan has stated that the said video shooting had been done by him; and that it was done under the instructions of PI Baria [P.W.72]. While it was being played over to him in the Court, Gautam Chauhan was explaining the situation and locations that were appearing on the screen of the television, from time to time.

327. In his cross-examination, nothing which would discredit him on the aspect of his indeed having done the video shooting in question has been elicited. The cross-examination was directed to establishing that the video cassette did not contain the shooting for the entire period during which the witness and PI Baria were there. It has been brought on record, in the cross-examination, that when the cassette was produced before the Court, its recording tab had not been removed; and that therefore, the cassette could be used for re-shooting, or for erasing the matter already recorded. PI Baria [P.W.72] and PI Kanani [P.W.74] have also been cross-examined with respect to the custody of the cassette and on collateral aspects. It is not necessary to discuss the evidence in that regard in detail in as much as there is no challenge to the evidence that what the video cassette contains is what was shot at the place of incident immediately after the incident. The evidence is challenged only with respect to the possibility of tampering with the cassette; and that too with reference to the possibility of its copies being taken out and/or that it not containing the full shooting done on that occasion. In other words, there is no claim, or even an attempt to make a claim, that what is seen in the cassette, is fabricated, in the sense that the events were staged, as in case of a shooting of a movie with Yasmin [P.W.29], Zahira [P.W.41] and other witnesses including D.C.P. Piyush Patel [P.W.67] and PI Baria [P.W.72] being made to ‘act’ their roles; and that the cassette contains the video shooting of such artificially created scenes. In fact, such claim would have been ridiculous looking to the nature of what is seen – the wide range of persons from the injured to the police and fire brigade and even the hostile witnesses – and has rightly not been made. There is also no claim, or challenge to the cassette [Ex.283] on the basis that the cassette is a combination of two different shootings done on two different occasions and therefore some part of it shows the events or happenings that actually had not taken place at all at the material time. There is nothing to indicate – not even a suggestion – that shooting taken on some other occasion has been inserted in the shooting taken at the place of Best Bakery, after the incident. There is also nothing to indicate – not even a suggestion – that the voices, sounds and conversation that are heard, have been recorded separately and inserted in the video cassette containing the shooting done at the Best Bakery premises, immediately after the incident.

328. I have carefully considered the possibility of the cassette having been tampered. This aspect shall be dealt with in detail when necessary, with respect to a particular contention or argument. At this stage, it may be observed that though the possibility of some matter having been deleted from the cassette cannot be ruled out, that would not make any difference in the admissibility and relevancy of the cassette [Ex.283], as the evidence of what is seen and heard when it is played. What is seen, if relevant, has to be taken into account and cannot be excluded from consideration on the ground that the entire recording of the happenings at the place of incident may not be before the Court, either because the recording of the entire happenings was not done at all, or because, a part of it was, for whatever reason, erased or deleted from the cassette [Ex.283].

… … …

331. After the cassette was duly proved, the Advocates for the accused have given up the contention of Yasmin not being present at the place of incident when the police, fire brigade etc. visited the same in the morning on 02/03/2002. What has been thereafter claimed that it shows Yasmin’s presence only when the police, Videographer, fire brigade, etc., visited the place, and not before that. However, earlier the stand of the learned Advocates for the accused was that Yasmin was not present at all, when the riots took place; and that even on 04/03/2002 – i.e. the date when her statement was recorded by PI Baria – she was not present in Vadodara, at all. [Pg.717, para-108 of the Notes of Evidence]. I cannot help observing that even without the cassette [Ex.283] and independently of it there was sufficient evidence – apart from Yasmin’s own statement – to prove her presence on the spot immediately after the incident, if not, during it. The claim that she was not present was, anyway, rather absurd. First of all, had she not been present, PI Baria would not have recorded her statement at all, during investigation. Recording statement of a person who was not present, or was not acquainted with the facts of the incident, would not have been done by PI Baria. Assuming that PI Baria has carried out investigation honestly, he would not have recorded the statement of Yasmin falsely without she being present not only on 01/03/2002, but also on 04/03/2002, as is suggested by Shri Shirodkar, the learned Senior Advocate, in the cross-examination of Yasmin. Alternately, even if PI Baria has to have acted dishonestly during investigation, he would have had no reason to record the statement of Yasmin, unless she was present. It is not as if, the accused could be implicated and a case could be registered because of Yasmin’s statement. No sensible police officer – irrespective of the question of honesty – would record a statement of a person, who would be absent both at the time of the incident and also on the date on which the statement is supposed to have been recorded. There was no dearth of persons who were present. If a dishonest Investigating Officer would be interested in manipulating the statement, he would manipulate the statement of a person whose presence during the offence was established and not of somebody who was not present at all, unless, it is only through such bogus persons, he can bring certain facts on record. Even in such a case, he would show the statement as recorded on a date when such person would be before him. This being rather elementary, need not have been discussed in details, but I feel compelled to discuss it at some length, to show the attitude exhibited by the defence in lengthening the cross-examination of Yasmin, without much basis.

332. There is also record in the nature of entries [portions A/103, A/105 and A/106 in Ex.170, Ex.172 and Ex.174 respectively], made in the medical papers showing that Yasmin was very much present when the injured were taken to hospital on 02/03/2002. Thus, even this would show Yasmin’s presence, at least when the injured were taken to the hospital. Once this is so, the burden of establishing that Yasmin was not present during the incident and she appeared on the scene during the period after the incident, and by the time the police arrived and/or by the time the injured were taken to the hospital, would be squarely on the defence, though it need not have been discharged by the standard expected of the prosecution. In any case, all this is rendered meaningless, as the presence of Yasmin is clearly established by the cassette [Ex.283] and at least, that at that point, Yasmin was present, is conceded.

333. The challenge to Yasmin’s presence does not appear to be sincere at all, and such a case was attempted to (be) built up falsely with the assistance and connivance of the hostile witnesses. There can be no doubt whatsoever, that Yasmin was indeed present during the incident; and that she has witnessed the incident.

… … …

335. Before going deeper into certain aspects of the mater, it may be observed that the basic challenge to her evidence is by bringing on record the ‘contradictions’ and ‘omissions’ supposed to be existing in her evidence when compared with the police record of her statements.

336. Yasmin’s statement was recorded by PI Baria [P.W.72] on 04/03/2002 during the course of investigation. There are two other statements of Yasmin recorded by the Joint Commissioner of Police [D.W.1] and the Assistant Commissioner of Police, Vadodara, [D.W.3] [X-32, X-33/A respectively for identification] in connection with certain allegations made by Zahira and Nafitulla regarding threats allegedly given to them.

337. The first question that was put to Yasmin in the cross-examination was whether she had told everything that transpired on the material day, to the Court, and Yasmin has replied – rightly in my opinion – that she was not sure about it and has added that it was not possible to narrate everything about such a big incident.

338. In the cross-examination, Yasmin’s evidence about the incident as well as about the identity of the accused is not at all shaken, in my opinion. An attempt was made to challenge the identification made by her, by questioning her specifically with respect to the accused identified by her. In the cross-examination it has been got from Yasmin that the names of the accused persons – whom she had identified in the Court by disclosing their names – were known to her since prior to the incident.

339. Yasmin has also disclosed information and her knowledge about the absconding accused Rinku, Mafat and Munna [original Accused Nos. 7, 8 & 9 respectively].

340. The evidence of Yasmin as regards the details of her knowledge about the accused identified by her and the details of information which she has given about them is not attempted to be challenged. On the contrary, there is enough evidence to support some of the statements made by Yasmin regarding these accused persons. For instance, (that) Haresh and Pankaj are brothers is not in dispute and is admitted by these accused. That Accused No. 1 – Rajubhai and Accused No. 16 – Shanabhai are related to each other is also not disputed. Similarly, Accused No. 21 – Ravi is Maharashtrian – i.e. ‘Marathi’ – is also not in dispute.

341. Before going deeper into the question of veracity of Yasmin and the reliability of the evidence as regards the involvement of the accused identified by her, in the alleged offence, it may be observed that the fact that Yasmin knows all the accused identified by her, has to be accepted. That she knew them since prior to the incident cannot be doubted. In fact, that the accused persons were from the locality, is clearly established and the very fact of identifying them by giving their names indicates prior acquaintance of the witness with the accused.

342. Yasmin has been subjected to gruelling cross-examination. However, except bringing on record the contradictions and omissions in her version before the police, the Advocates for the accused have not been able to establish any other infirmity in her evidence. Yasmin has been questioned as to the circumstances in which she went to Chhota Udepur after the incident, why she went and why she did not come back, etc. The replies by Yasmin to these questions appear to be true and convincing.

343. Since Yasmin’s first statement was recorded on 04/03/2002, which could have been recorded on 02/03/2002, Yasmin has been questioned in cross-examination at length, on this.

344. It would be proper to reproduce the relevant evidence which has been recorded in question and answer form.

[Pg.711, para-106 of Notes of Evidence].

345. In my opinion, the answer given by Yasmin is proper and has to be accepted. Further, in my opinion, the supposition implicit in the question that a victim of such a serious incident, where even the life of her husband was endangered, would be keen on ensuring that her statement is recorded by the police, is not based on reality. It is clearly wrong, in my opinion. It must further be observed that police had come to the scene of offence, had rescued the victims, had taken them to the hospital and were aware of the incident. The police were well aware of the incident to the knowledge of Yasmin and there was no question of informing them. It is one thing to question the Investigating Officer as to why he did not record the statement of a particular eyewitness immediately, but it is quite another to question the eyewitness as to why he or she did not insist on getting his or her statement recorded by the police. The supposition implicit in the question above is absolutely unjustified where such eyewitness was aware that the police were already aware of her being the eyewitness to the incident. Argumentative questions were put to Yasmin on the aspect of her not going to the police on 02/03/2002 and telling about the incident and giving her statement. Ultimately, an admission has been elicited from her that if she wanted, she could have given her statement to the police on 02/03/2002. This admission from Yasmin does not help the accused, in any manner, whatsoever. It is clear that PI Baria did not record the statement of Yasmin; and thought that it was not advisable to record the statements of Yasmin and others at that time. PI Baria has been at length questioned on the reasons for not recording the statement of Yasmin and some others on 02/03/2002. He has given reasons for not doing so. Whether the reasons are proper or not, is not the question here. What needs to be emphasised, is that it is an entirely different matter to seek explanation from a police officer for not recording the statements of eyewitness immediately, though available to him; and it is quite another to question the eyewitness as to why he or she did not insist on the statement being recorded. It is not as if, the fact of Yasmin being an eyewitness to the incident was not disclosed or known to the police or to PI Baria [P.W.72] in particular. In spite of this if PI Baria did not record her statement, no fault can be found with Yasmin on that account. This type of questioning would have had some value, if Yasmin would have thought that the police were not aware of the incident, which was, clearly, not the case.

346. A suggestion was put to Yasmin that she did not go to the police and talk about the incident and ‘give her statement’ because she had not witnessed the incident at all. This suggestion has been denied by Yasmin. This suggestion is devoid of logic in as much as in the case of Saherunnisa [P.W.40] and Sahera [P.W.35] [regarding whose presence during the incident there is no doubt or challenge] also, no statement was recorded on 02/03/2002. They also did not give their statements to the police by going to the police. Thus, not witnessing the incident, cannot be a cause behind not ‘giving the statement’ to the police on 02/03/2002.

347. Coming now to the contradictions and omissions said to be existing in the version of Yasmin when compared with the police record, I find that there is, in reality, only one significant omission and that is the omission to state the names of the accused. The other omissions and contradictions which have been sought to be highlighted are absolutely inconsequential…

… … …

349. The next contradiction is about naming before the police ‘Social Worker Thakkar’ as one of the rioters, instead of ‘Sanjay Thakkar’ as stated by Yasmin in the Court. According to Yasmin, before the police also, she stated about Sanjay Thakkar only. She was confronted with a portion marked ‘Y’ in her statement [X-22 for identification] recorded under Section 161 of the Code, when she stated that it was not correctly recorded. The contradiction, has, however been proved through PI Baria [P.W.72] and the portion marked ‘Y’ has been duly exhibited [Ex.366]. I am not inclined to give any importance to the so-called discrepancy. Social Worker Thakkar had already died in October, 2001 itself, and there is no doubt about this fact which is found in the evidence… These arguments are so absurd that they are to be dealt with only because they are vehemently advanced, in all seriousness. That the statements of different witnesses, recorded even on different dates, speak about the presence of a dead person, does not indicate the witnesses are lying in furtherance of a conspiracy, as suggested, but, on the contrary, this indicates that the record is not correct. False implication is made with the objective of making that person suffer the consequences of the allegations. A dead person could not have been arrested and prosecuted, which takes away the very motive usually behind false implication…

… … …

356. In the cross-examination, Yasmin [P.W.29] was asked whether threatening of rape is a serious wrong, which has been accepted by Yasmin. It was further asked to her that if the woman would be married, it would be more insulting and humiliating for her, to which also Yasmin has agreed. The correctness of the belief of the cross-examiner that threat of rape would be more insulting and humiliating for a married woman is difficult to accept, but since Yasmin has accepted this proposition, I do not wish to go into that. Yasmin was questioned on whether she felt surprised on the threat of Jagdish and Jitu to rape them i.e. Yasmin and others one by one, to which Yasmin has replied that ‘she did’. According to Yasmin, she did state to the police when her statement was recorded on 04/03/2002, that she was threatened of being raped. According to PI Baria, Yasmin did not state before him about she being threatened to be raped by Jitu, Jagdish, Mafat and Munno. Yasmin is seriously criticised during the arguments and remarks about her character are passed on the ground that she has allegedly given a false story of threats to commit rape. The question is whether this story has been falsely invented by Yasmin. I have carefully considered this.

357. … It is in evidence and stated by these 4 witnesses also, that the women were separated from the men and were dragged elsewhere. The evidence shows that they were being dragged towards ‘jhaadi’ or ‘jungle’. It cannot be spelt out from Yasmin’s statement that the threats to commit rape on the women were given in the presence of the men. Such threats, if given, were likely to be given after the women are separated from the men and were being dragged elsewhere and not at the same place and where the men being assaulted. No attempt was made to elicit in the cross-examination of Yasmin as to when exactly the threats were given. There is nothing to suggest that the threats were given in the presence of the men. Even if one takes a liberal view of the matter and says that it was not necessary on the part of the defence to establish when the threats were given, the fact remains that failure to do so would certainly not mean that they were necessarily given in the presence of men. Since there is no claim, or evidence that the threats to commit rape were given in front of the said 4 witnesses, their omission to state this does not make the version of Yasmin doubtful.

… … …

359. The next contention is that in Ex.136, which is the F.I.R lodged by Zahira who was not hostile then, there is no mention about the threat to rape. I am not impressed by this contention also. There is a reference in the F.I.R. about the women being dragged towards the bushes. There is evidence of the other eyewitnesses that the women being dragged towards the bushes or jungle. Taufel [P.W.26] has stated about the women being dragged towards a room, or about being taken in a room. As there were 4 women, it is possible that both the versions are correct. What is significant is that the fact of dragging women away from the place where the men were is consistently mentioned by all the witnesses. Separating women from the men and dragging them away towards the bushes or jungle, obviously was being done with an evil intention only. This conduct of the rioters undoubtedly lends support to Yasmin’s testimony about threats of rape having been given to them.

… … …

362. Once the fact that the women had been dragged towards the jungle/jhaadi or bushes by separating them from the men is established – as it’s clearly the case – it lends support to the evidence of Yasmin [P.W.29] that the women were being threatened of rape.

363. For a woman it causes much embarrassment to speak of rape or threats of rape being given to them. This is so even under otherwise ordinary circumstances. In the instant case, when Yasmin had undergone such a terrible incident, it is possible that she did not state about the fact of having been threatened with rape, to the police. It is made clear by her that she was not actually raped. The omission to state specifically that she was threatened of being raped is not sufficient to discredit this version of Yasmin, in my opinion particularly when that ‘she was dragged towards the jungle’ is mentioned.

364. Undoubtedly, Yasmin does claim that she told to PI Baria about the threats to rape, but on this aspect – viz. of stating it to PI Baria – I am not fully satisfied that it is true. It is because it is my opinion that PI Baria has not attempted at all to elicit information. It would have been extremely embarrassing for Yasmin to specifically utter the word as ‘rape’ and mention about the specific threats in the condition she was at that time. However, though she may not be telling the truth when she says that she did state about the threats of rape to PI Baria for fear of being disbelieved on this aspect, I see no reason to disbelieve her evidence on this aspect. I am of the opinion that Yasmin’s evidence that she was threatened of being raped can be safely accepted. At any rate, the failure to specifically state so to the police, if any, cannot result in discrediting her testimony not even on that aspect, leave alone, on other aspects.

365. Yasmin has been contradicted with her statement recorded on 27/09/2003, by Shri Kumar Swami [D.W.1], the Joint Commissioner of Police, Vadodara. An omission to state the names of the accused on the part of Yasmin in the said statement has been highlighted. Certain portions in the said statements have been brought on record by way of contradictions. It must be noted that this statement has not been recorded during the course of investigation of this case. In fact, the statement has been recorded after the trial in the Sessions Court at Vadodara was over and the accused were acquitted.

366. As Kumar Swami’s evidence shows, Yasmin’s said statement [X-32 for identification] was recorded in an inquiry that was conducted by him, pursuant to certain proceedings pending in the Hon’ble Supreme Court of India. Zahira, her sister and two others had filed an affidavit in the Hon’ble Supreme Court of India, mentioning about the threats given to Zahira by the Local M.L.A. Shri Madhu Shrivastav. In connection with an inquiry into the said allegations, the said statement of Yasmin was recorded by Kumar Swami.

367. Thus, the said statement [X-32 for identification] was recorded in an inquiry into the allegations made by Zahira before the Supreme Court of India about not being able to state the truth during the trial due to the threats received by her and her family members. Yasmin’s failure to give the names of the accused in the ‘Best Bakery Case’ to Kumar Swami during in that statement is absolutely irrelevant. It is rather surprising that such an ‘omission’ is sought to be highlighted. I have no doubt that it would have been totally irrelevant for Yasmin to state about the names of the accused in the ‘Best Bakery Case’. This is because, in his evidence, Kumar Swami states that he was not concerned with that aspect at all; and that he was merely concerned with an inquiry in connection with the alleged threats received by Zahira and others.

368. It is true that Yasmin has claimed that she mentioned the names of the accused in the ‘Best Bakery Case’ when her statement was recorded by Kumar Swami, but this is highly unlikely, in view of the scope and purpose of the inquiry in which the statement was recorded. Moreover, nobody was interested in knowing who the accused were, as the trial was already over and accused had been acquitted. It appears to me that Yasmin was rather misled into believing that the statement recorded by the Joint Commissioner of Police was also regarding the ‘Best Bakery Case’, because in the cross-examination, the statement recorded by PI Baria on 04/03/2002 was referred to as the ‘first statement’ and the statement recorded by the Joint Commissioner of Police was referred to as the ‘second statement’. In fact, after asking Yasmin as to what she stated before the police when her statement was recorded on 04/03/2002, she was asked about her statement recorded by the Joint Commissioner of Police and at that time, Yasmin stated that she had given the names of the some of the accused to the Joint Commissioner of Police. Yasmin may not be telling the truth when she says that she did give the names of the accused to the Joint Commissioner of Police, Vadodara, but that must be by reason of an apprehension of the involvement of the accused being disbelieved, if the names would not be given.

369. I find that the failure to give names of the accused persons to the Joint Commissioner of Police is absolutely immaterial. In fact, there would be no occasion to give such names. I cannot avoid the temptation of observing here that on the contrary, keeping in mind the object of the inquiry thereof, the scope thereof and the fact that no investigation into the present offence was pending as regards the accused – who had been acquitted – if Yasmin would have given the names of the accused and if the Joint Commissioner of Police would have recorded the names, it would have been suspicious.

370. … Yasmin stated that she might have stated that the information given by her mother-in-law and sister-in-law Zahira in those interviews was false and baseless. However, I am not inclined to give any importance to this aspect. What is really significant is that the Joint Commissioner of Police requires a word from Yasmin about the information given by Saherunnisa [P.W.40] and Zahira [P.W.41] to various news channels and newspapers being false, without pointing out any specific interviews or newspapers. Thus, this shows an improper attempt to get something on record without a real desire to know the facts of the case. Kumar Swami [D.W.1], apparently, was not interested in telling Yasmin what exactly Saherunnisa and Zahira had stated and seeking facts from Yasmin on those matters. Instead, the general denial of all statements made by them and all interviews given by them has been sought to be recorded in the statement without bringing on record what those statements are. This shows an undue anxiety to somehow discredit Saherunnisa [P.W.40] and Zahira [P.W.41] who were, at that time, making allegations against authorities in State of Gujarat and the local M.L.A. Moreover, if the statement [X-32 for identification] is read, it is clear that the portion which has been brought on record as Ex.508, refers not to the information given regarding the Best Bakery incident, but regarding the allegations which have been made against the police, as well as Chandrakant Battu Shrivastav, Madhu Shrivastav, local leaders, and some others, including the Advocates. The interviews apparently were given by Saherunnisa and Zahira making allegations about the threats, improper conduct of the trial and it is that information, which according to Yasmin, was false, even if Yasmin indeed made such a statement before the Joint Commissioner of Police. Yasmin was asked as follows:

Yasmin answered as follows,

371. Yasmin was then asked whether she stated before the Joint Commissioner of Police on 19/09/2003, that the personnel of local T.N.N. channel had taken her interview in which whatever the facts given by her about the ‘Best Bakery incident’, were true and correct. When Yasmin denied, she was confronted with a portion in statement [X-32 for identification] and on Kumar Swami [D.W.1] having said that Yasmin did state so, the said portion has been brought on record as Ex.509. Now, what facts Yasmin stated in the interview taken by T.N.N. channel, which are referred to in this portion, has been brought on record and forms part of Ex.517 (colly). If this portion is seen, there is absolutely nothing about the ‘Best Bakery incident’. The entire interview concerns itself about there being no fear for Yasmin and Nafitulla for residing in the same locality; and that the people in the locality telling them to live happily; and ‘that they would not harm them’, [hum kuch nahin karenge] [this is significant], etc. The interview states that what Saherunnisa and Zahira were talking about the threats received by them was all false. It is clear that the interview speaks about the allegations of threats having been received as made by Saherunnisa and Zahira at the material time and does not deal at all with the ‘Best Bakery incident’. As a matter of fact, when Kumar Swami [D.W.1] himself says that the statement that he recorded had nothing to do with the ‘Best Bakery incident’; and that he was merely conducting an inquiry for a limited purpose, that he should record Yasmin’s statement which says that ‘the facts stated by her, in her interview to T.N.N. channel, regarding the ‘Best Bakery incident’ were true’, is surprising. Kumar Swami ought to have realised that the facts were not about the ‘Best Bakery incident’ at all.

372. In any case, if the defence wants to be benefited by such admission that whatever facts Yasmin stated in her interview taken by ‘T.N.N. channel’ were true and expects Court to draw an inference that they were about the ‘Best Bakery incident’, then to make the contradiction meaningful what were the facts ought to have been brought on record. The same has not been done.

373. As can be seen, barring the exception of Shri Deepak Swaroop [D.W.2], Commissioner of Police, Vadodara City, who was called for establishing the existence of certain documents [allegedly favourable to the accused] all other defence witnesses have been examined only with the object of proving previous statements made by Yasmin. The defence witnesses have not been examined with respect to the facts touching the offences, but for a collateral purpose – viz. for proving that Yasmin had made some statements previously, which are contrary to what she has stated before the Court.

374. It would therefore, be appropriate at this stage, to examine the reliability of the defence witnesses themselves and the defence evidence itself.

375. Shri Kumar Swami [D.W.1], though a Senior Police Officer working as Joint Commissioner of Police, Vadodara, at the material time is proved to be an unreliable witness. Undoubtedly, he has spoken about his having recorded the statement [X-32 for identification] of Yasmin and certain statements made by Yasmin before him, have been – as already observed – brought on record. The value to be attached to those statements and how far they are contradictory or inconsistent with the version of Yasmin, as advanced by her in the Court, is a matter that is being dealt with separately, but what must be recorded here is that the evidence of this witness is highly unsatisfactory. In fact, it appears extremely doubtful to me, that he indeed recorded the statement of Yasmin, as and in the manner stated by him; and at any rate, it is extremely doubtful whether the statement [X-32 for identification] is an accurate record of what Yasmin stated.

376. The purpose of the inquiry in which Yasmin’s statement came to be recorded is clear from the reply given by him to a specific question to that effect put to him by the learned Spl. P.P. It would be appropriate to reproduce the answer given by this witness:

Ans.: In the 4 affidavits [of Zahira and others] that had been filed, there were allegations of threats given by Madhu Shrivastav. Supreme Court had directed the Director General of Police to hold an inquiry in the matter. The Director General directed the Commissioner of Police, and the Commissioner of Police directed me to hold the inquiry. The purpose was to find out whether the allegations of threat were true [emphasis supplied]. [Pg.3606 of the Notes of Evidence].

377. If this was the scope of the inquiry, many of the matters appearing in Yasmin’s statement [X-32 for identification] are immaterial and need not have been recorded at all. In fact, due to the weaknesses in the evidence of Kumar Swami, the Court thought it necessary to put certain questions to him. Among these questions, a question was asked to him as to what made him think that Yasmin’s statement should be recorded in connection with an inquiry which he was conducting. This question was asked, because, taking a prima facie view of the matter and just to come to a prima facie conclusion about the allegations of threat, Yasmin, who was not residing in Vadodara at the time when the alleged threats were given, need not have been questioned, at all. The answer which is reproduced below is totally unconvincing,

378. Naturally, he was required to be questioned further. It would be appropriate to reproduce the relevant questions and answers:

Ans.: I thought it fit to record her statement. [Pages 3625 to 3626 of Notes of Evidence]

379. It is easy to note that the witness has attempted to avoid answering the questions, obviously, on realising that it was not at all necessary to record Yasmin’s statement for the purpose of the inquiry which he was conducting. The question and answer last reproduced above indicate that the witness had not replied it at all and the answer given by him actually reveals that he was aware of the weakness of the stand that he was taking. It is only when the Court repeated the question, he answered as follows:

Ans.: Yes. I did realise that Yasmin was not residing with them at that time.

The Court thereafter, questioned him directly on the point as follows:

The witness has answered as follows:

Ans.: I have already explained that during this period, I came to know that Yasmin had given an interview to a local T.V. Channel and therefore, I thought it fit to record her statement. [Pg.3627 of Notes of Evidence].

380. This makes it clear, that it is on learning about an interview given by Yasmin to a local T.V. Channel [later on, revealed to be ‘T.N.N. Channel’] that Kumar Swami thought it fit to record Yasmin’s statement. Though he does not bind himself in saying that otherwise he would not have recorded Yasmin’s statement in the said inquiry, as that would have depended on the progress of the inquiry; the fact remains what caused him to record the statement [X-32 for identification] of Yasmin is his knowledge that Yasmin had given an interview to a local T.V. Channel. According to Kumar Swami, he learnt about such interview given by Yasmin from his police sources – i.e. the staff who produced a copy of the C.D. of the programme of the channel before Kumar Swami. Now, the transcript [forming part of Ex.517] of the said interview has been brought on record. It shows that Yasmin had termed the story of threats having been received by Zahira and others as ‘false’. It is after knowing this, that the statement of Yasmin was recorded by Kumar Swami. What is significant is that somebody from the police staff should be so prompt to bring to the notice of Kumar Swami a statement of Yasmin that was tending to refute the allegations of threats as made by Zahira and others. The transcript which Kumar Swami got prepared from the C.D. of the said interview is also interesting. It consists of an English translation of the answers given by Yasmin in Hindi. The transcript is only of the answers and not of the questions put. This clearly shows that Kumar Swami was not interested in actually finding out the truth, but only in giving an official sanction to the statements made by Yasmin during an interview given to T.N.N. Channel. It cannot be doubted that anybody having a sincere desire to know what actually Yasmin stated, would not have been satisfied only by reading the transcript of the answers given, without feeling the necessity of knowing the questions, as well.

381. What is further interesting is that Kumar Swami is unable to state the manner in which he recorded the statement of Yasmin. He was asked whether this statement was recorded pursuant to questioning, or was only a record of narration made by Yasmin herself, on her own. Kumar Swami replied that it was recorded ‘by a combination of both these’. He claimed to have put question to Yasmin. To the question, ‘in which language’, he replied as ‘Gujarati’; and immediately after giving this answer, added ‘and Hindi’. When it was asked to him in which language Yasmin was answering, he said that she was answering in a ‘mixture of Gujarati and Hindi language’. The ‘mixture’ is qualified by him, on further questioning, as some answers would be given in Gujarati and some answers would be given in Hindi. Kumar Swami was asked as to how the answer would come on the paper and he answered as follows:

‘We have to reduce it to Gujarati language.’

What followed thereafter is rather interesting and is worth reproducing:

Ques.: Did you have any occasion to study any of these two languages – i.e. Hindi or Gujarati – in your school education, or in your college education, or any further education?

Ques.: Which language Yasmin used to speak, according to you?

Ans.: I have no idea. [Pg.3630-3631 of Notes of Evidence].

382. The last answer is indeed shocking. It shows that before embarking upon recording the statement of Yasmin, Kumar Swami did not even bother to know which language Yasmin used to speak. Undoubtedly, later on, he has attempted to give some justification by saying that the ‘conversation was going on’ and ‘there was no problem of communication’, which cannot be accepted in as much as it was necessary for Kumar Swami to ascertain this aspect before commencing the recording of statement. Whether there was a problem of communication or not could not have been decided by him, without knowing that and without ensuring whether the communication was proper.

383. Kumar Swami claimed that the transcript [forming part of Ex.517 (colly)] which is in respect of the answers given by Yasmin in the interview taken by ‘T.N.N. Channel’ was prepared immediately after recording Yasmin’s statement. He has further confirmed it by saying that when the C.D. was given to him by his staff, there was no transcript submitted along with that. However, later on, on referring to the transcript and on referring to statement [X-32 for identification] of Yasmin, he admitted that the transcript was already available to him before Yasmin’s statement was recorded and this he says, on the basis of the date which the transcript bears – i.e. ’19-09-2003'.

384. Kumar Swami [D.W.1], admittedly, did not contact interviewer from the ‘T.N.N. Channel’ and did not even ascertain who he was.

The following questions and answers are further interesting and are worth reproducing:

[Court Note: At this stage, the witness answers as follows.]

Ques.: Do we take it that you are neither sure that Yasmin answered in any one language only, nor are you sure that she used both the languages for giving answers? Ans.: Yes. I am not sure. [Witness volunteers, "I now say that she used both the languages, as far as I remember"].

Ans.: I don’t remember exactly.

385. A further ridiculous answer is given by Kumar Swami as, that ‘first question used to be asked in Gujarati and then in Hindi’. When questioned about the propriety of following such a procedure, Kumar Swami gave an interesting answer, which is worth reproducing:

386. Kumar Swami was asked as to when he realised that Yasmin did not follow Gujarati fully – i.e. after asking her how many questions. Perhaps, then, by realising the unacceptability of the above answer given by him, he tried to be evasive and stated as:

‘In Gujarat, we have to record the statements in Gujarati. The questions were put to her in Gujarati, then explained to her in Hindi, and then the statement was recorded.’

387. Questions were put to her in Gujarati, then explained to Yasmin in Hindi then the statement was recorded. He added that ‘both the languages are having some similarity also’, which statement is entirely out of place and shows that the witness was nervous. Kumar Swami further stated that Yasmin would answer only after the question being explained to her in Hindi and she would answer in Hindi only. It was being translated by him and his Jamadar, Ahmed, in Gujarati. The questions and answers reproduced above thus indicate how ridiculous the version of the witness is and needs no special comments.

388. What seems to have happened, if Kumar Swami is right and is telling the truth, is as follows. Kumar Swami would put a question in Gujarati. As Yasmin would not follow it, the same question would be put after translating it in Hindi. Then he would explain it to Yasmin who would answer in Hindi. Then the answer would be translated in Gujarati by Kumar Swami with the help of His Jamadar and then recorded. The next question again would be put in Gujarati [though it was clear that Yasmin did not follow Gujarati fully], then again the same question would be put in Hindi, then it would be explained to Yasmin and the same procedure would be followed. That things would happen in this manner is not possible; and obviously Kumar Swami cannot be believed in that regard. This evidence is so ridiculous, that when considered in the light of other inconsistencies and infirmities in the evidence of Kumar Swami more particularly the manner in which he has been giving replies, creates a doubt – to say the least – in my mind, that Kumar Swami himself has not recorded the statement of Yasmin, at all.

389. It appears that the C.D. of the interview given by Yasmin to ‘T.N.N. Channel’ which was available, was sought to be made use of because the statements of Yasmin recorded therein exonerated those against whom allegations of having given threats had been levelled; and as the inquiry was required to be conducted by high ranking officers, only his signature has been put on the statement. It is possible that he has taken some part in the recording of the statement, but certainly he has not recorded the entire statement. He has, certainly not taken efforts to probe into the matter.

390. In any event, the omission to state the names of the offenders in the ‘Best Bakery Case’ to the Joint Commissioner of Police, as is sought to be highlighted, is absolutely immaterial. Further, the contradictory portion [Ex.507 in X-32] does not show that Yasmin actually gave any false names of the persons from their locality, falsely as the offenders. In fact, the explanation of Yasmin in that regard that her mother-in-law and sister-in-law Zahira were insisting on giving the names of some additional persons falsely, has to be accepted. Thus, this portion [Ex.507] does not discredit Yasmin, in any manner.

391. As regards the evidence of Ramjibhai Pargi [D.W.3], Assistant Commissioner of Police, Vadodara City, through whom the contradiction to the effect that ‘on the next day of the Best Bakery incident, Yasmin went to the Chhota Udepur at her Mama’s place’, as supposed to have been said by Yasmin to this Officer, and as recorded by him in Yasmin’s statement [X-33 for identification] dated 23/10/2003, has been brought on record. I am not impressed by this ‘contradiction’, and I am not inclined to attach any weight to it. First of all, it is clearly and factually wrong. On the next day of the Best Bakery incident would mean 03/03/2002. Admittedly, Yasmin’s statement was recorded by PI Baria on ’04/03/2002'. As such, the story of Yasmin having gone to Chhota Udepur on the next day after the incident cannot be accepted. Why Yasmin would make such a statement is not clear, and when Yasmin denies having said so, I am inclined to believe her, rather than Pargi. It is not that the Court has to mechanically accept what a police officer recording the statement states by disbelieving what the person concerned suggests in that regard. Yasmin had not said this when her statement was recorded by Kumar Swami [D.W.1].

392. The other contradiction on the part of Yasmin as has been brought on record [as Ex.500] through Shri Pargi to the effect that ‘on her opposing her mother-in-law and sister-in-law Zahira got her beaten through her husband’, is absolutely of no consequence. Whether a particular fact was stated or not by the witness to the police is not ‘per se’ relevant. This is relevant only for contradicting the version of the witness as given by him or her in Court. Here, there is no version of Yasmin ‘that her mother-in-law and sister-in-law had not got her beaten’.

393. Like Kumar Swami, this officer – Shri Pargi [D.W.3] – also seems to be interested in getting some matter on record, which is extraneous to the investigation which he was doing. The question of recording of the statement of Yasmin by Shri Pargi arose in the course of investigation into an offence which was registered on the basis of the report lodged by Nafitulla which was duly inquired into by Kumar Swami [D.W.1] and who advised registration of an offence. C.R.No. 41/2003 in respect of offences punishable under Section 506 Part-II and 507 of the I.P.C. r/w Section 34 of the I.P.C., came to be registered in this manner. Surprisingly, Shri Pargi has admitted that though the names of the accused persons were disclosed in the F.I.R. itself, he had not taken any action against the said persons. The reason given by him for not taking any action is that the investigation was still going on; and that till then no material against those accused persons had been gathered. The F.I.R. was registered on 06/10/2003, and investigation was still incomplete when Shri Pargi gave evidence in this Court – i.e. on 30/8/2005. Except highlighting this, I do not wish to comment further. It is apparent that what Saherunnisa had told Yasmin, whether she asked Yasmin to falsely give the names of persons from the ‘faliya’ as the culprits in respect of the Best Bakery incident, was not something on which Shri Pargi was required to concentrate. In fact, that appears to be rather irrelevant, unless, there is a belief that ‘if the accused had been falsely named by Zahira and others, then threatening Zahira and others, as alleged, would be justified’. The possibility of Yasmin’s statement [X-33 for identification] having been recorded only to elicit some matter which was thought as might be useful to the accused in the ‘Best Bakery Case’, when a possibility of retrial was made to appear, cannot be ruled out.

394. Yasmin has been sought to be discredited further by proving that she made statement exonerating the accused in the ‘Best Bakery Case’, in an interview given by her to the ‘News Plus Channel’ from Vadodara. Smt. Khyati Pandya [D.W.4] and Shri Ajay Patel [D.W.5] have been examined for showing that. Interestingly, Yasmin was earlier questioned about having made certain statements in her interview taken by ‘T.N.N. Channel’, but later on, such statements are said to have been made in the interview taken by ‘News Plus Channel’.

395. The evidence of Smt. Khyati Pandya and Ajay Patel needs to be examined in that regard. Smt. Khyati Pandya is working as the Chief Executive Officer in ‘News Plus Channel’ which is a local channel in Vadodara City. The channel is owned by her father. Khyati Pandya has stated that the channel has its own reporters, and when it is felt that there is anything which ought to be covered, the cameramen attached to the said channel are sent to the relevant place for doing video shooting. After doing the shooting, cameraman comes back to the studio and gives the ‘capture’ – i.e. the entire video shooting done by them. Thereafter, the necessary editing is done. The news is generally written by reporter bringing it, but sometimes, somebody else including Smt. Khyati Pandya would write the news. That this is called the script. She has explained some technical details as to how a programme is ultimately telecast. She has explained that first of all a master C.D. is prepared and then from the master C.D., about 10 to 12 C.Ds. are prepared, which are sent to various cable operators in Vadodara City for telecast.

396. Khyati Pandya [D.W.4] appears to be a highly interested witness, and much can be observed on that aspect. However, in the view that I am taking it is not necessary to discuss the same in details. The evidence of Khyati Pandya has been adduced only to bring on record a C.D. which is supposed to contain a record of Yasmin’s interview, and therefore the discussion on the interestedness of Smt. Khyati Pandya can be kept to the minimum.

397. It is an admitted position that the C.D. [Art.R/38] produced by the witness is certainly not an original record, or even a copy of the original record of Yasmin’s interview. Yasmin has not made the statements in question to Khyati Pandya. Khyati Pandya was neither the interviewer in respect of the said interview of Yasmin, nor was she present during any such interview. The interviewer – one Ketul Pothiwala – has not been examined. The C.D. that has been produced by Smt. Khyati Pandya was taken out and preserved by her on the request of Advocate Rajendra Trivedi, who appeared for the accused persons during the first trial of this case, held at Vadodara. The story is that after the programme containing Yasmin’s interview was telecast by the ‘News Plus Channel’, Advocate Rajendra Trivedi requested Khyati Pandya to give to him a record of the same and also to keep a C.D. in safe custody.

398. The genuineness and authenticity of the record of interview as is found in the C.D. [Art.R/38], is extremely doubtful.

399. If the evidence of Ajay Patel [D.W.5] is taken into consideration, it becomes clear that some matter regarding bomb blast at Kothiyad Nagar, that had not taken place on the day on which Yasmin’s interview is supposed to have been taken, has been incorporated in the C.D. Further, it is not clear how Kailash @ Heena is seen in the C.D. According to Ajay Patel, who has done the shooting on that day, he had not done any shooting in respect of Kailash @ Heena; and that he had not done any shooting in respect of Kailash @ Heena at any time, whatsoever. However, in the C.D., Kailash @ Heena is seen. Regarding this, Khyati Pandya stated that this video shooting in respect of Kailash @ Heena was taken at the same time. However, later on, she hastened to correct herself by saying that she had got the ‘capture’ at the same time and when and where the shooting was done by Ajay Patel, had not been asked to him, by her. Khyati Pandya was questioned as to whether first the entire shooting in respect of Yasmin’s interview was done and thereafter the shooting in respect of the scene in which Kailash and her child are seen was done; or whether shooting of Yasmin’s interview was partly done and thereafter, shooting in respect of the scenes of Kailash and her child was done and thereafter, again the shooting of Yasmin’s interview was done. She stated that she had no personal knowledge regarding that. Thus, apparently, the C.D. is not a record of any particular incident or happening or of shooting done at a particular point of time. It is an edited programme. When questions were raised about the genuineness of the said C.D. during the course of arguments by Smt. Manjula Rao, the Special Public Prosecutor, no attempt was made to reply to those contentions on behalf of the accused. What was stated was that the object was to confront Yasmin with the record of the previous statements made by her and since she has agreed having made the statements, it was immaterial whether the same was proved or not. There is substance in this contention and therefore, what Yasmin says in that regard is important.

400. Since the whole basis of the defence is on the admission of Yasmin of having made the statements, what are those statements and what are those admissions needs to be seen. The statements of Yasmin, which she admitted having been made, are reproduced below, one by one.

"Woh is liye ki main sab sachhai batana chahti thi! Is liye meri saas ne aur meri nanand ne mera naam F.I.R. mein nahi likhaya" [Ex.514/1].

401. It may at once be observed that question preceding the answer which has been marked as Ex.514/1, is not, at all proved. The above statement of Yasmin at Ex.514/1 does not help the defence in any manner. How Yasmin can be discredited or Yasmin’s evidence is rendered unreliable by reason of having made the statement is difficult to understand. Yasmin has categorically stated that the questioning which has preceded the answer represented by the portion in Ex.514/1 is not correct. On this, the learned Advocates for the accused have not sought to challenge Yasmin. Since neither the evidence of Khyati Pandya nor the evidence of Ajay Patel establishes what the question was and since the C.D. is admittedly an edited version and combination of shooting taken on different places and different times, even though Yasmin has admitted to have been made the statement in question, in reply to what question the statement was made, has not been brought on record. It is therefore, of no consequence, at all. In fact, its meaning cannot be comprehended at all.

… … …

407. … Not only there is sufficient reason to doubt the genuineness or authenticity of the C.D. as a true record of some event or events, but there is evidence to positively suggest that the C.D. is a tampered and fabricated document. When such is the position, the statements of Yasmin by themselves can have no relevance. In fact, without knowing the context in which the statement has been made, its significance cannot be comprehended at all, and when this is the position, it cannot be understood to be a ‘contradiction’.

408. What is significant in my opinion is, however, different.

409. It appears to me, that the interviews of Yasmin both by ‘T.N.N. Channel’ and by ‘News Plus Channel’ were taken somehow to create some evidence to show that the allegations that were being made by Zahira at that time, against the State of Gujarat and the Police Machinery in the State, were false. Zahira was, at that time, making allegations against the entire State Machinery, saying that the rioters were being protected by the State machinery that investigation had not been carried out properly; and that due to fear she and other witnesses could not depose against the accused, during the trial. Zahira was demanding retrial and was being helped by the N.G.O. – Citizens for Justice and Peace. It is quite apparent that to counter Zahira, aid of Yasmin was taken by persons who were very much upset with the allegations of the State not having been diligent in getting the matter investigated and ensuring a fair trial. The interview taken by ‘T.N.N. Channel’ may not be that objectionable, but certainly the attempt of ‘News Plus Channel’ is a heinous attempt to make Yasmin speak something which could be used to counter the allegations made by Zahira. Interestingly, a number of local channels rushed for taking Yasmin’s interview at the material time, though Yasmin was not examined at all during the first trial. The script [of the news item] written by Khyati Pandya shows her anxiety to contradict Zahira and her mother. Yasmin is made use of to get certain things said in a somewhat different context. Things said by Yasmin are then highlighted from a totally different context.

410. Thus, it is my opinion that though Yasmin appears to have made some statements at some point of time, which are contradictory to what she has stated in the Court, exactly under what circumstances, and in reply to what questions she made those statements is not clear. This could have been established by the defence who brought those statements on record, but it has been avoided. No importance to such statement can, therefore, be given, even if the person to whom it is attributed admits having made it. It does not necessarily follow that those statements are made in the context in which the accused suggest. The statements, as aforesaid, are not such so as to indicate the context thereof without any other aid. At any rate, the explanation of the person concerned as to the context in which it was made has to be accepted when the context has not been brought on record, or rather bringing it on record has been avoided.

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412. ... In my opinion, apart from the fact that this indicates his (Patel’s) determination to support the evidence of Smt. Khyati Pandya at any cost, it also indicates that his evidence of his remembering the statements made by Yasmin is not reliable. Moreover, according to Ajay Patel, he did the recording of all the questions that were put by the interviewer to Yasmin. When a visual and aural record in the form of the cassette, or in the form of C.D. prepared therefrom, was available and when that has not been established or proved, it is not possible to accept the oral evidence of Ajay Patel regarding the statements allegedly made by Yasmin given by him from his memory and of which he is not sure. It is one of the cardinal rules of law of evidence that the best evidence – such as the nature of the case would permit – must be given in all cases. Such oral evidence, which he gave, cannot be safely accepted. This is particularly so, because the interestedness of this witness in the defence of the accused is too obvious. Even otherwise, the exact words of Yasmin cannot be expected to be remembered by him. What he would remember would be the impressions formed by him in that regard, which can be a result of many factors, and might be gathered subsequently. That Yasmin indeed made such statements, therefore, cannot be proved by the oral evidence of Ajay Patel particularly when Yasmin is not specifically confronted with this aspect, or that Ajay Patel having recorded her interview.

413. At this juncture, it may be observed as to in which peculiar position Yasmin was placed at the material time and how her position was sought to be exploited by the interested parties for achieving their object. Zahira’s making allegations against State of Gujarat had, apparently, caused concern in a certain section of the society and that section wanted to refute such allegations vehemently. When Yasmin had come to reside there, she was without any support and apparently, her relations with the members of Habibulla family were also not good. She could not very much depend on her husband, as he had already kept a mistress. The accused who were the residents of the locality had already been acquitted. Yasmin had to reside in the same locality. The object of the persons coming to take her interview was obvious. Certainly, they were not interested in getting from Yasmin that threats had indeed been received by Zahira and Nafitulla. Significantly, when Yasmin was away from Vadodara and when the accused were being prosecuted, nobody had thought of what Yasmin had to say in the matter. That Yasmin came to stay in the locality, where the accused were also residing, made it quite obvious to the interested persons that Yasmin would not, rather dare not, speak against those persons at that time. It is under these circumstances, that interview of Yasmin was taken. Obviously, Yasmin, who wanted to stay there, could not have said anything about the threats allegedly given to Zahira and others. Here, the question is not whether threats had really been given or not, but what must be appreciated that there was no occasion to question Yasmin as regards the innocence or guilt of the accused in the ‘Best Bakery Case’, which had already been over.

414. Under the pressure – which must be tremendous – Yasmin might have told something to media, which is inconsistent with what she has stated in the Court, but that hardly discredits her. It is quite easy to understand that Yasmin would not have been able to stay in the locality, had she spoken against the accused who had already been acquitted. Rather, it must be only after she decided not to speak against the accused, that a decision to go there and reside must have been taken by her.

415. Can the false statements made by a person before media, be given the same importance as the statements made by a person before a public servant who has lawful authority to inquire or investigate into the matter? For instance, when the police are investigating a case, it is the duty of a person to tell the facts truly. In a Court of Law, certainly, witnesses are bound to tell the truth. When a police officer questions a person, it is in order to achieve some lawful object, or in order to do something, which it is the duty of police to do. Speaking of media, the media is neither under any obligation to inquire into any facts, nor is media entitled to compel a person to give an answer. Media also cannot take any steps or bring the offenders to book or exonerate on the basis of any answer that may be given by the persons interviewed. Making a false statement before media is nothing more than telling an ordinary lie; and how damaging this would be to the character of the persons doing so, depends on the circumstances in which the lie is spoken. Given the situation in which Yasmin was placed, I do not think that it was possible for her to condemn the accused openly when they had been acquitted and had been residing by her side. The false statements if any, made by her were clearly under pressure and no importance – certainly not to the extent of branding her as a wholly unreliable witness – can be given to the same.

416. In the facts and circumstances of the case, I am of the opinion that Yasmin’s evidence that she did not want to tell the truth before the media is acceptable. It appears to have been the strategy of Yasmin which enabled her to remain in the locality without any problem. Merely because of the inconsistent statements made by Yasmin, which anyway do not go to the root of the matter, I am not inclined to disbelieve the testimony of Yasmin as given by her in the Court. Moreover, the statements are not exactly as are sought to be interpreted.

417. To sum up, the evidence of these witnesses who have supported the prosecution case does not suffer from any weaknesses, so as to reject it as unreliable. On the contrary, the evidence of all these witnesses is consistent and fits in properly with the other evidence in this case, and/or with the facts which are undisputed. It is corroborated by the Cassette [Ex.283]. In fact, when it is conceded that the occurrence or the happening of the incident is not disputed at all, a large part of the evidence of these witnesses is already established as true.

418. The whole basis of the attack on the evidence of these witnesses is with respect to the omissions and contradictions in their evidence when compared with the record of statements made by them, before the police during investigation. As elaborately dealt with while discussing the evidence of these witnesses, the concept of contradictions and/or omissions is not properly understood by the learned Advocates for the accused, as is clear not only from the cross-examination of these witnesses, but also from the express arguments advanced. Though, in the written arguments [Ex.521/A] filed by Shri Shirodkar, the legal position as regards the omissions and contradictions is quite properly stated [particularly in clauses (a), (b), (c) and (e) of para-9A of pg. 2 thereof], the arguments actually advanced orally are not in consonance therewith and all the time the number of omissions and contradictions found in the evidence of each of these witnesses was being counted and emphasised. It was also argued as if they are to be subtracted from the evidence. Repeated arguments have been advanced, and even in the written arguments it is emphasised that ‘if the contradictions and omissions are taken out, nothing remains in the evidence’. It therefore, becomes necessary to briefly mention the correct legal concept in this regard and to indicate what is the proper approach in such matters.

419. Appreciation of evidence is not a question of law. Whether the evidence of a witness is to be believed or not to be believed is not a matter of law. The belief or disbelief of a statement made by a witness before the Court depends on so many circumstances, that it is impossible to lay down any hard and fast rules in that regard. Contradicting a witness by referring to his previous statement, is only one of the modes by which a witness may be discredited. Section 162 of the Code, which, despite a general prohibition, permits a limited use of statements recorded by the police during investigation, for the purpose of contradicting a prosecution witness, does not lay down any rule of law or procedure to the effect that the evidence which has been contradicted in this manner is to be excluded from consideration. It does not say that the statements in the evidence which were not made before the police shall cease to be the part of evidence before the Court. The belief or disbelief in any witness or in any particular statement or statement made by him is influenced by various factors. The contradictory statements, or the omissions to mention the relevant facts at the earliest possible opportunity, are important to assess the truth or otherwise of a particular version by a simple rule of logic and prudence. Prudence indeed requires that a man who makes two different statements on the same subject on two different occasions may not be thought reliable and since he advances two versions of the same incident, which of them is true, or whether none of them is true, may, very well be doubted. Similarly, if anything material and significant is not stated at the earliest opportunity, whether the facts later stated are an afterthought, would be a question that would arise for consideration. Thus, the effect of previous contradictory statements or the omissions to state earlier are such infirmities that would require a closer examination of the statements made before the Court; and while assessing the truth or otherwise of the versions advanced before the Court, the fact that earlier a contradictory statement was made or that something important was not earlier stated, will not be lost sight of by the Court. There is however, no question of mechanical rejection of the relevant evidence…

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421. A crime is committed. Investigation starts. If the culprits are found, they are prosecuted. Witnesses are examined before the Courts of law. The Courts are required to adjudicate whether the persons prosecuted are guilty or not. This conclusion about the guilt or otherwise of an accused before it is to be reached, mainly, upon considering the evidence – i.e. statements made before it by the witnesses and the documents produced before it. Thus, basically the matter is to be decided on what the witnesses said before the Court; and that they did not state certain matters before the police and/or stated something differently, is only a factor which would influence the Court’s assessment of their evidence. It is only one out of several aspects which may make the Court doubt the truth of the version of a witness or his veracity in general.

422. The aforesaid discussion on the evidence of the supporting witnesses indicates that immaterial variations between the evidence recorded in Court and in the statement under Section 161, were projected as ‘contradictions’ and ‘omissions’.

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425. Moreover, in this case, as shall be discussed later, the police record of the statements under Section 161 of the Code itself is unreliable. In fact, the Advocates for the accused have advanced several arguments contending that it is got up, manufactured and concocted. This shall be discussed later, but for the time being it may be observed that when this is the criticism of the record, it would be rather unreasonable to discredit the testimony of a witness on the basis that it is in conflict with such record.

426. In any case, there are no omissions or contradictions in the evidence of these witnesses which can be called as ‘significant’ or ‘material’, except on one point. It is regarding the failure to name the accused who were known to these witnesses by name. Except this omission, all other omissions are insignificant and immaterial. None of the contradictions or omissions which have been brought on record affect the basic structure of the prosecution case. In fact, there is rather a remarkable consistency as to the manner in which the incident has happened. The effect of the omission with respect to disclosing information about the culprits, either by their names, or by their descriptions, or by making a specific claim of prior acquaintance, however, needs to be considered in appreciating the evidence of these witnesses as against the concerned accused, with respect to their identity.

427. The evidence of the aforesaid five witnesses is fully corroborated by the evidence of several witnesses. Thus, the evidence of Dayaram Pal [P.W.9], Kiritbhai Patel [P.W.10] and Ishwarbhai Sutar [P.W.11], who are all the fire brigade personnel, shows that when they reached the spot, Best Bakery building was burning. The evidence establishes that seven dead bodies were brought down from the first floor by the fire brigade personnel. The evidence also shows that an old woman who had been trapped on the terrace of the Best Bakery building was brought down by the fire brigade personnel. There has been no challenge to the evidence of these witnesses which confirms the fact of 9 injured being found on the spot and being sent to the S.S.G. Hospital and an old woman being brought down. In fact, in the cross-examination of Ishwarbhai Sutar [P.W.11] it is got confirmed from him that he noticed 9 injured persons and they were removed to S.S.G. Hospital in an ambulance. The evidence of Dr. Meena Robin [P.W.46] shows that the injured were brought to the S.S.G. Hospital by the fire brigade ambulance driver. The injuries suffered by Taufel [P.W.26] Raees [P.W.27], Shehzad [P.W.28] and Sailun [P.W.32] have already been mentioned earlier. The evidence of Dr. Meena Robin, which is supported by the evidence of Rameshbhai Rathwa [P.W.16] and Gordhanbhai Makwana [P.W.17], which, in turn, is supported by the relevant entries made in the official record, shows that the nine injured persons that were removed to S.S.G. Hospital were Raees [P.W.27], Sailun [P.W.32], Ramesh Vaijnath Sharma @ Raju, Shehzad [P.W.28], Nasibulla [P.W.30], Nafitulla [P.W.31], Taufel [P.W.26], Prakash and Baliram. It may be appropriate at this stage to record the injuries found on the person of Prakash, Baliram and Ramesh also. The injuries show how brutal and merciless the assault was…

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