The fanatic crowd that included the accused persons proceeded to attack the building of Best Bakery, broke open the place, looted goods of the bakery such as flour, wheat, oil and sugar worth around Rs.75,000, burnt the house and vehicles such as moped, scooter, motorcycle and tempo lying there and thereby caused a loss of Rs.10,74,000, and continued to surround the building of Best Bakery for the entire night, confining and detaining the persons who were inside…

…As per the representation of the prosecution, 21 accused persons produced before the Court were members of this armed, unlawful mob that surrounded the Best Bakery situated on Hanuman Tekri for the whole night, resorted to stone throwing, detained the persons in the building and did not allow them to come out. The Best Bakery and the house adjoining it were set on fire. In this fire, four children and three women were burnt alive. In the morning whoever came out from the house and attempted to run away was attacked fatally with lethal weapons. Five of the persons who tried to flee died thus. The remaining were bound with coir-rope and wires, dumped on wood planks and hay and an attempt was made to burn them alive. Two other corpses were found from a ground nearby the next day.

Head constable (HC) Shri Manharbhai, in-charge officer of the Panigate police station had ordered Shri Abhaysingh Fatabhai, head constable of the Investigation Squad to reach the hospital and begin investigations in connection with the incident. Information from SSG Hospital, recorded at 11.50 am on March 2, 2002 states that at about 12 pm on that day HC Abhaysingh of Investigation Squad had recorded the statement of injured Raiskhan Aminmohmad Pathan.

… As per the representation of the prosecution… police inspector Shri Bariya had reached SSG Hospital and recorded the complaint of Zahirabibi, a victim of the attack in the said incident between 11.15 am and 3 pm on March 2. Shri Bariya got the offence registered at the Panigate police station and also began police investigations related to the incident. The filling up of inquest forms of the deceased persons and post-mortem investigations were also made. The identification of dead bodies was made through Zahira.

… Shri Bariya also recorded the statement of injured witnesses on March 4. As per the representation of the prosecution, the names of accused persons as assaulters were found in the statements of the witnesses.

Thereafter, on March 10, 2002, the Vadodara police commissioner had passed orders handing over the investigation of this case to police inspector DCB PP Kanani. On taking over the investigation of this case, and getting acquainted with the papers, he had further interrogated the witnesses and recorded their statements.

Finally on March 27, 2002, the accused persons in this case began to be arrested. Accused no. 1 to 5 were arrested on March 27. Thereafter, on April 1, 3, 4, 15, 17, 19 and 21 the remaining accused persons (in all, totalling 21) were arrested by police inspector Shri Kanani. While making the panchnama, recording their physical condition at the time of arrest, the police had also obtained the remand of the accused on grounds of furtherance of investigation. As per the representation of the prosecution, at the time of making the remand application (by the police), the accused persons had voluntarily handed over the weapons allegedly used in the incident in the presence of panchas. The police had, therefore, seized these weapons…

The following issues arise for decision in this case:

Whether it will be proved that on the night of March 1 and 2, 2002, in furtherance of their common intention to cause damage to the life and property of the Muslim community, an armed mob had gathered unlawfully, causing loss of lakhs of rupees to the Muslims in Gajarawadi, Shivnagar, Ganeshnagar and Hanuman Tekri areas of Vadodara, burning Best Bakery situated in the Hanuman Tekri area, and committing the murder of 14 persons and causing injury to six persons in the massacre? –Yes.

Whether the charges framed against the accused persons are going to be proved to show that either all the accused persons or any of the accused persons produced before the Court have taken part in the aforesaid incident? – No.

Grounds:

All the witnesses produced in connection with the incident have stated that the crowds were very large in number, carried lethal weapons and, during the night of March 1 and 2, 2002, destroyed, burnt and looted properties in Gajaravadi, Shivnagar, Ganeshnagar and Hanuman Tekri areas of Vadodara…

… It is proved clearly from the evidence in this case that there was loss of lives of 14 persons at the place of this incident at Best Bakery.

Besides the loss of 14 persons in this incident, properties worth lakhs of rupees were destroyed and burnt. Damage has been caused and loot has been committed...

These facts concerned with destruction, loot and burning, actions committed by a violent mob due to which 14 persons lost their lives are proved beyond doubt in this case. But there is no admissible evidence produced on record in this case to establish that all the accused persons or any of the accused persons produced before the Court have committed the act.

The learned government pleader Shri Pandya states forcefully in his arguments that the witnesses… have given police statements identifying the accused persons produced before the Court as culprits in the acts. The learned government pleader states that since the prosecution has proved the statements given by these witnesses against the accused persons in the course of investigation through cross-examination of these witnesses by the Investigating Officer, the case against the accused persons is proved and therefore the maximum sentence should be passed against them.

These arguments of the learned government pleader are unacceptable, considering the depositions of these witnesses in Court and concurrent circumstances.

Sairabanu, Ex.39 states that, while the attack was taking place and the bakery had been set on fire, ‘I could not identify anybody from among the persons gathered there. There was darkness all around. The building was burning at the time. I did not see anything else. All the members of my household were terrified and sat crouching in fear at one place’.

Virsingh Zala, Ex.41 states in his examination-in-chief before the Court, ‘I do not know anything regarding what happened during the attack on Best Bakery. I have not seen any persons that I can identify running’.

Nafitullah Shaikh, Ex.42 states, ‘I do not know how our house was burnt. We were hidden on the terrace of the house at the time of the fire. There was a lot of smoke and all the lights were off. A large mob of ten to fifteen thousand persons could be seen. I fell unconscious due to the smoke and thereafter regained consciousness only in hospital. I did not see anybody causing the fire or doing any other thing’.

Bharatbhai Tadvi, Ex.43 states that he had gone away to his native place, Naswadi on the evening of the incident. He denies being witness to the attack and also denies having named the accused before the police. Bharatbhai stated before the Court that he learnt of the incident through the newspapers.

Shaikh Zahirabibi Habibullah, Ex.46, is a very important, star witness. As per the representation of the prosecution, her statement produced as Mark 36/2 in the records of the case had been taken between 11.15 am to 3 pm on March 2, 2002 at the SSG Hospital. The prosecution has also argued before the Court urging that this statement ought to be treated as the First Information Report (FIR). However, prior to the recording of Zahirabanu’s statement, HC Abhaysingh (Ex.82) of the Panigate Investigation Squad had, at the SSG Hospital, recorded the statement of one of the injured persons, Raiskhan Aminmohmad Pathan. This statement is produced as Ex.180 in the records of this case. As per section 154 of the Criminal Procedure Code, the statement of Raiskhan Pathan, Ex.180 can be treated as FIR in this case. There is no name of any accused in the statement of Raiskhan, Ex.180. No importance can be given to the statement, Mark 36/2 of Zahirabibi. Zahiraben herself does not support the alleged statement, Mark 36/2 in the deposition Ex. 46. As per section 157 of the Criminal Procedure Code, the copy of the FIR is to be sent to the concerned magistrate immediately in case of a cognizable offence… (This was not done) … Similarly, in this case, alleged facts contained in statements of star witnesses provided by the investigating officers are neither reasonable, nor accepted, nor reliable. Their police statements have been recorded very carefully. No witnesses from among them have supported their police statements in Court. Part of the deposition of Lalmohmad Khudabax, Ex. 80 needs to be cited here in the interest of justice.

He says, "The day after February 28, 2002 was a Friday. This incident took place at about 7.30-8.00 pm. At that time, a huge crowd which was difficult to estimate had gathered there. The crowd was larger than the total population of the Hanuman Tekri area. These persons set my timber godown on fire. I was watching from the upper storey of my house. Everything inside the godown was burnt; some remaining articles made of iron were looted. My statement before the Panigate police was recorded on March 9, 2002.

"At the time when my godown was set on fire, it was around 7.30-8.00 pm on March 1, 2002 and I was sitting along with 18 family members at my home… (When we had to run out of our home to save our lives, Dinesh and Munnu, the accused who live next to us gave us shelter)… I know all the accused persons produced in Court. All the accused reside in our area. All these accused sat with us continuously taking care of us through the night of the incident and due to this care taken by them in keeping us in their homes they saved our lives. The accused before the Court were with me and I say that we all were saved due to all these accused persons’…

In short, the evidence identifying the accused is not reliable though it has been produced in the records of this case. In view of the circumstances of this case, it appears, following judicial scrutiny of the evidence produced here, that false evidence may have been built up against wrongly accused persons.

Fourteen persons have died in the Best Bakery massacre and properties worth lakhs of rupees set on fire and looted. For ordinary persons who are victims of such tragedy, it becomes unbearable not to have any accused established or sentence passed. Whirl-pools of doubts are created in the mind.

(Hereafter the judge, devotes eight out of 24 pages of the judgement to his philosophical outpourings on the Hindu-Muslim question, the genesis of communalism etc. Some of these observations are):

"The policy of industrialization, following the example of the Soviet Union, helped create conditions for communal riots."

"Keeping vote banks in view, the frequent yoke of reservations has been troublesome for the country.... it is a reality that because of reservations, violent riots keep breaking out."

"The disputed happenings were a reaction to the Godhra episode, but the enduring and everlasting cause for communal riots is the enduring policy of divide and rule of the British."

"When police arrive on the scene of a riot, they arrest curious bystanders, with the result that the prosecution is riding a dead horse which can never pass the finishing post."

"At the time of the Mahabharata, great men like Bhismapitamaha and Dronacharya had sided with unrighteousness, only so that the country may not be divided."

"The Aryan people came into this country from the North Polar area. Muslims came from Persia and with Ghazni, and Parsis from Iran."

"It needs to be said that if one’s identity and loyalty do not lie toward one’s land, one is likely to be destroyed."

The word Dharma nirpekhsa (or "secularism") has come to connote freedom without rules. Freedom without rules means licentiousness."

The order to acquit the accused persons is passed considering the case against accused persons is not proved.