Ode Massacre Gujarat Riots Case Judgement

7/28/2019 Ode Massacre Gujarat Riots Case Judgement

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JUDGEMENT Registration No. :SC/44/2008

Filing No. :SC/44/2008

Filed on : 22/04/2008

Registered on : 22/04/2008Decided on :04/05/2012

IN THE COURT OF ADDITIONAL SESSIONS JUDGE, ANAND.

(SHRI R. M. SAREEN)

SESSION CASE NO.44 OF 2008.

EXH.______

Complainants : (1) The State of Gujarat.

(2) Vora Rehanaben D/o. Yusufbhai Yakubbhai

Vora, Residing at Ode, Taluka : Umreth,

Dist. Anand.

V E R S U S

Accused :

Sr.

No

.

Name of accused Age Residential

address

Remarks

01 Kantibhai Manabhai

Chavda

40 Surivali Bhagol,

Ode

02 Ravjibhai Manabhai

Chavda

38 Surivali Bhagol,

Ode

03 Jayantibhai Shanabhai

Parmar

30 Surivali Bhagol,

Ode


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04 Rameshbhai Manabhai

Chavda

35 Surivali Bhagol,

Ode

05 Poonambhai Dahyabhai

Talpada

36 Nr. Bus stand,

Ode

06 Ganpatbhai Chhotabhai

Chavda

25 Surivali Bhagol,

Ode

07 Budhabhai Shankarbhai

Parmar

32 Surivali Bhagol,

Ode

08 Harishbhai Vallabhbhai

Patel

38 Malav Bhagol,

Ode

09 Vasantbhai PoonambhaiPatel

30 Malav Bhagol,Ode

10 Lalabhai @ Nileshkumar

Manibhai Patel

26 Malav Bhagol,

Ode

11 Tino @ Maheshbhai

Gopalbhai @ Ramabhai

Patel

30 Malav Bhagol,

Ode

12 Mineshkumar Poonambhai

Patel

31 Malav Bhagol,

Ode

13 Prakash @ Pako Jamnadas

Patel

35 Malav Bhagol,

Ode

14 Umeshbhai Poonambhai

Patel

30 Dakor Vad, Ode

15 Arvindbhai Mangalbhai

Patel

37 Dakor Vad, Ode

16 Manubhai Ashabhai Patel 32 Malav Bhagol,

Ode

17 Natubhai Bhagabhai Patel 40 Malav Bhagol,

Ode

18 Vinubhai RanchhodbhaiPatel

48 Malav Bhagol,Ode

19 Poonambhai Dahyabhai 28 Malav Bhagol,


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Patel Ode

20 Chhotubhai Ramabhai

Patel

48 Malav Bhagol,

Ode

21 Dilipbhai @ Deepakbhai

Kanubhai Patel

35 Malav Bhagol,

Ode

22 Ashokkumar Harmanbhai

Patel

25 Malav Bhagol,

Ode

23 Piyushbhai Bhailalbhai

Patel

26 Malav Bhagol,

Ode

24 Samir Bhikhubhai Patel 36 Pathharvadi

Khadaki, Ode

25 Arvindbhai Bhagabhai

Patel

52 Malav Bhagol,

Ode

Abetted

as per

Pushis

vide

Exh.459,

died

duringpendency

of the

case

26 Riteshkumar Arvindbhai

Patel

24 Malav Bhagol,

Ode

27 Manibhai Bakorbhai Patel 63 Malav Bhagol,

Ode

28 Ghanshyambhai

Vallabhbhai Patel

30 Malav Bhagol,

Ode

60

29

Ashokbhai Dahyabhai

Patel

42 Malav Bhagol,

Ode

30 Bhaveshbhai Kanchanbhai

Patel

28 Malav Bhagol,

Ode

31 Ghanshyambhai

Shankarbhai Patel

35 Malav Bhagol,

Ode


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32 Dilipbhai Ranchhodbhai

Patel

35 Malav Bhagol,

Ode

33 Sujitbhai Harishbhai Patel 26 Malav Bhagol,

Ode

34 Pintu @ Raghuvirbhai

Chandrakant Patel

25 Malav Bhagol,

Ode

35 Kiritkumar @ Bodiyo

Manubhai Patel

26 Malav Bhagol,

Ode

36 Poonambhai Shanabhai

Patel

35 Malav Bhagol,

Ode

37 DineshbhaiParshottambhai Patel

37 Malav Bhagol,Ode

38 Bhavesh Manubhai Patel Adult Ode, Tal. Anand

39 Bi inbhai Manibhai Patel Adult Ode Tal. Anand

40 Sureshbhai @

Somaiya/Suresh Chunilal

Adult Ode, Tal. Anand

41 Sureshbhai @ TatoRanchhodbhai Patel

Adult Ode, Tal. Anand.

Accused

No. 38 to

41 joined

vide

applicatio

n Exh.288and 345

APPEARANCE

Ld. Special P.P., Shri B.C. Trivedi and Ld. Special A.P.P. Shri A.R.

Desai on behalf of prosecution.

Ld. Advocate Shri Mansuri & Ld. Advcoate Shri Shaikh on behalf

of witnesses.

Ld. Advocate, Shri C. K. Patel on behalf of accused no. 1 to 22

and accused no. 38 and 39.

Ld. Advocate, Shri A. H. Dhagat on behalf of accused no.23 to 37and accused no. 40 and 41.


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J U D G E M E N T

(1) The accused are facing trial for the offence U/s. 143, 147,

148 r/w Sec.149 of I.P.C. and Sec.302, 435, 436, 440, 451r/w

Sec.149 of I.P.C.; Sec.307 r/w Sec.149 of I.P.C., Sec.120(b) r/

w Sec. 34 of I.P.C.; Sec.295, 297, 395 r/w 149 of I.P.C. and

Sec.135(1) of Bombay Police Act.

(2) The facts of the prosecution case are that on 27/2/2002

there was train carnage incident occurred at Godhra in

which many Kar Sevaks were burnt alive. As a reaction to

the incident VHP (Vishava Hindu Parishad) and other

organizations called for Gujarat Bandh on 28/2/2002 and at

the same time on 1/3/2002 there was Bharat Bandh. On

1/3/2002 in between 13.30 to 13.45 hours, mob of 400 to

500 of Hindu persons hatching conspiracy and formed

unlawful assembly possessing deadly weapons like Dhariya,

sticks, swords, kerosene, petrol gallons and pouches of


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petrol and burning rags of village Ode and pelted stones

on the houses of muslims community who were in the

minority in the village Ode and shouted to burn muslims

alive, kill them and as such poured kerosene, petrol on the

houses and shops of the muslims community and in

pursuance of that house of complainant and witnesses

were burnt in which one Nuriben Gafurbhai Vora and

Aaiyeshaben Abdulbhai Vora were burnt alive and one

Kadar Ismail Vora who was running for his life was called by

mob and burnt alive by pouring kerosene on him and also

poured kerosene on the witnesses who were running, as

such injuring the witnesses. The mob burnt houses, cabins

and shops and religious places of the muslims and also

broke and damage the property and hurt the feelings of

the muslims community in which three persons were burnt

alive and many others were injured.

In this commotion, the complainant and some of the


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witnesses ran away and went to Sureli Camp, wherein the

complainant Rehanaben Yusufbhai Vora declared contents

before the Circle Police Inspector(CPI), Shri K. R. Bhuva on

5/3/2002 who registered the complaint and sent the

complaint for registration in Khambholaj Police Station and

thereafter took over the investigation of the case, as per

the order of the Higher Authority.

CPI, Shri K. R. Bhuva initially recorded the statements of

injured who were admitted in the hospital passed the

message of visitation to the Higher Authority, calling FSL

Officer, pass the message for videography and photography

and went to the place of incident. On 6/3/2002 draw the

panchnama of the site of incident before the FSL officer,

bones were lying at the scene of incident, 300 grams

human bones and 50 grams ash were seized by way of

panchnama. Mr. Bhuva has also draw the panchnama of the

various properties in Malav Bhagol, 7 accused were found,


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they were arrested, panchnama of the injured persons were

drawn in the Govt. Referral Hospital at Umreth, additional

statements of the complainant and her father Yusufbhai

Yakubbhai Vora were recorded and on 7/3/2002 statements

of other witnesses were recorded. On 8/3/2002 statements

of other witnesses and complainant showed the place

where Aaiyeshaben and Nuriben were burnt alive. As such

before two panch witnesses, the panchnama of the place

were drawn and bones, two pieces of Sari piece and

Petticoat were identified by the complainant which was

seized by way of panchnama, Muddamal was sent for

analysis in the FSL. On 9/3/2002 the statements of other

witnesses were recorded, on 10/3/2002 report of addition

Sec. 395 was given by the I.O. and other witnesses were

recorded. On 11/23/2002 also statements of witnesses were

recorded and also on 14/3/2002 interrogation of accused

no. 1 to 7 was done, panchnama of rickshaw and Metador

was carried out by the I.O., on 23/3/2002 further


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statements of complainant was recorded. On 1/4/2002

accused no 7 to 14 and 15 to 44 as they were released on

anticipatory bail, they were released by the I.O. as per the

order of the Sessions Court. On 24/5/2002 blood sample of

Idrisbhai son of deceased Aaiyeshaben was collected for

D.N.A. On 16/7/2002 blood sample of Illiyasbhai Ismailbhai

Vora brother of deceased Kadarbhai Ismailbhai Vora was

collected for D.N.A test and was sent to the FSL. He has

also done procedure for drawing map of site, thereafter as

papers of charge-sheet were ready, charge-sheet was filed

against the 44 accused before the Judicial Magistrate,

Umreth, whereas 4 accused were shown as absconding.

As the Judicial Magistrate, First Class, Umreth was not

having jurisdiction to try the case, the Judicial Magistrate,

First Class, Umreth vide order dated 29/8/2003 committed

the charge-sheet to the Session Court at Kheda.


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(3) It is admitted facts that Writ Petition was filed in the

Honble Supreme Court regarding incidents of communal

riots which took place after the Godhra train carnage,

present case was also one part. As such the proceedings of

the case was stayed by the Honble Supreme Court and on

26/3/2008 vide interim order passed by the Honble

Supreme Court, Special Investigation Team(SIT) was formed

and it was directed to the SIT to file report within

stipulated time. The Govt. issued notification of forming of

SIT on 1/4/2008, Dy.S.P., Mr. H.C. Pathak was appointed for

the investigation as SIT I.O., which was formed under the

leadership of Mr. Raghvan retired C.B.I., Director. Dy.S.P.,

Mr. H.C. Pathak took over the investigation on 11/4/2008

and as per the application of complainant and her father

recorded their statements and during that time, out of 44

accused as one accused Harishbhai Dahyabhai died his case

was abetted.


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One witness Alijibhai Ismailbhai had filed an application

before the SIT that the dead bodies of the deceased

persons in this case were thrown in step well(Vav) and well.

As such in view of the application Dy.S.P., Mr. H.C. Pathak

carried out the search operation in the Malav step well and

Malav well from 13/5/2008 to 6/6/2008 and carried out

various panchnamas. During the search operation one bone

and Muslim religious sign moon and star was found which

was ceased by way of panchnama. During search operation

on 30/5/2008 one scull was founding in Malav well and

from 31/5/2008 to 6/6/2008 various bones were found

which was ceased on each day carrying out the panchnama,

at the same time from Sikotar step well bones were found,

primary report regarding bones were also obtained and

after all the procedure adopted by the SIT, report was filed

before the Honble Supreme Court by the SIT.

(4) After report of the SIT was filed before the Honble


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Supreme Court and on 1/2/2009 stay was lifted by the

Honble Supreme Court and the case was sent for trial by

the order of the Honble Supreme Court, Special

Designated Courts were formed, Special Judges were

assigned the work of trial, Special P.P. were appointed for

each case, Witness Protection Cell was formed. As such

present case in Khambholaj Police Station vide I-C.R.

No.27/2002 was came before this Court for the trial as

Special Court.

(5) Initially as stated above, charge-sheet was filed against the

44 accused, out of which accused Natubhai Satabhai,

Ankurbhai Shapurbhai, Samirbhai Vinubhai, Rakeshbhai

Haribhai, Mohanbhai @ Sashin Rameshbhai, Nikulbhai

Ravjibhai Patel; as they were fled away, their bail bond was

cancelled and amount of surety was recovered in the Court

from the Surety and their case was separated. Whereas

accused Harishbhai Dahyabhai died before the proceeding


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came to start during the proceeding of the SIT. As such 37

accused remains present before the Court.

(6) Charge was framed against the 37 accused U/s. 143, 147,

148 r/w Sec.149 of I.P.C; Sec.302, 435, 436, 440, 451 r/w

Sec.149 of I.P.C.; Sec.307 r/w Sec.149 of I.P.C.; Sec.295, 297,

395 r/w Sec.149; Sec.120(b) r/w Sec.34 of I.P.C. and Sec.

135(1) of B.P. Act.

(7) As the accused did not plead guilty, evidence was recorded

in the case. During the course of evidence, complainant

and victim filed application U/s. 173(8) of the Criminal

Procedure Code vide Exh.211 which was rejected. As such

revision was filed being aggrieved by the complainant and

witnesses in the Honble Gujarat High Court which was also

dismissed. As such the proceedings initiated; evidence was

recorded, during the recording of the evidence, the victims

filed an application at Exh.288 and prosecution filed an

application at Exh.345, U/s. 319 to join additional accused


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and after hearing both the parties, this Court ordered for

joining of 4 accused, whose names were disclosed in the

evidence. The proposed 4 accused challenged the order of

this Court in the Honble High Court and they failed to get

any favourable order. As such the matter was again

conducted after joining 4 accused, framing the charge

against accused no. 38 to 41 and thereafter prosecution

filed their closing purshis vide Exh.454 after retrial.

(8) Prosecution has adduced following oral and documentary

evidence in this case as under:

ORAL EVIDENCE

A EVIDENCE OF PANCH WITNESSES:

Sr.No. Witness

No.

Name of witnesses Details Exh.

01 01 Bismillakhan

Akbarkhan Malek

Panch witness of

site of incident

where bones and

ash were seized

79

02 02 Akbarmiya

Husenmiya Malek

Panch witness of

panchnama of

burnt houses

near Bismilla

Masjid

81

03 03 Mustufabhai

Umarbhai Vora

Panch witness of

panchnama of

85


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person injured

witness

04 04 Faridkhan

Jabarukhan Pathan

Panch witness of

the place where

Aaishaben andNuriben were set

to have been

burnt alive

87

05 05 Firozbhai Rasulbhai

Vora

Panch witness of

panchnama of

burnt Metador

89

06 19 Maheshbhai

Vitthalbhai Patel

Panch witness of

panchnama

regarding search

operation in

Sikotar step well

173

07 20 Virendrakumar

Pyarelal Sagar

Panch witness of

panchnama of

search operation

in Malav well

181

B EVIDENCE OF DOCTORS / MEDICAL OFFICERS / FSL

OFFICERS:

Sr.No. Witness

No.


01 06 Dr. Sanjay

Krushnadas Parikh

Medical Officer

of Umreth

Referral Hospital

who treated

injured.

93

02 07 Dr. Chhaganbhai

Jinvarshah Raibarkar

Expert doctor of

examiningMuddamal bones

100

03 08 Dr. Ashish Manibhai Dr. examining 104


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for DNA test

12 17 Dr. Anilkumar

Madhukant Maheta

Forensic DNA

Assistant Director

153

13 63 Dr. Bhupendrabharti

Bhikhabhati Gosai

Expert doctor

examining bonesin year 2002

351

C EVIDENCE OF MAIN EYE WITNESSES AND VICTIMS:

Sr.No. Witness

No.


01 21 Idrisbhai Abdulbhai

Vora

Eye witness and

injured witness

209

02 23 Rehanaben

Yusufbhai Vora

Eye witness /

complainant and

victim

244

03 24 Yusufbhai

Yakubbhai Vora

Father of the

complainant /

eye witness and

victim

249

04 29 Salimbhai Illiyasbhai

Vora

Eye witness 260

05 35 Firozbhai Ismailbhai

Vora Kapadwanjvala

Eye witness /

injured witness

269

06 36 Fakir Mahmad

Gafurbhai Vora

Eye witness /

injured witness

270

07 37 Firoz Ismail VoraMatarvala

Eye witness /injured witness

272

08 39 Samirbhai

Abdulbhai Vora

Eye witness 276

09 47 Razakbhai Abdul

Karimbhai Vora

Eye witness 291

10 48 Mahebubbhai

Abdulbhai

Karimbhai Vora

Eye witness 292

11 49 Alijibhai Ismailbhai

Vora

Eye witness 293


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12 55 Altafbhai

Safimahmad Vora

Eye witness 307

D EVIDENCE OF HOSTILE WITNESSES:

Sr.No. Witness

No.


01 25 Karimbhai Rasulbhai

Vora

Hostile witness 254

02 26 Yasin Nurmahmad

Vora

Hostile witness 255

03 27 Yunusbhai

Ismailbhai Vora

Hostile witness 256

04 28 Inayatbhai Yunisbhai

Vora

Hostile witness 259

05 30 Mahmadbhai

Rasulbhai Vora

Hostile witness 262

06 31 Hanifaben

Sattarbhai Vora

Hostile witness 263

07 32 SafiyabanuKarimbhai Vora

Hostile witness 264

08 33 Rasidaben

Yunusbhai Vora

Hostile witness 265

09 34 Sahenazben

Nurmahmad Vora

Hostile witness 266

10 38 Samikbhai

Karimbhai Vora

Hostile witness 275

11 40 Amitbhai Karimbhai

Vora

Hostile witness 277

12 41 Gulamhusen

Rasulbhai Shaikh

Hostile witness 279

13 42 Mahmadbhai

Abdulbhai Vora

Hostile witness 280

14 43 Saburbhai

Abdulbhai Vora

Hostile witness 281

15 44 Majidbhai Allarakha Hostile witness 285


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Vora

16 50 Nurmahmad

Rasulbhai Vora

Hostile witness 296

E EVIDENCE OF WITNESSES WHOSE PROPERTY WEREDAMAGES:

Sr.No. Witness

No.


01 45 Ahemadbhai

Abdulbhai Vora

Victim of

property damage

286

02 46 Safimahmad

Hasambhai Vora

Victim of

property damage

287

03 51 Ismailbhai

Abdulbhai Vora

Victim of

property damage

297

04 52 Safimahmad

Nurmahmad Vora

Victim of

property damage

301

05 53 Rajmahmad Gulam

Husen Shaikh

Victim of

property damage

302

06 54 Yusufbhai Fakir

Mahmad Vora

Victim of

property damage

303

07 56 Husenmiya

Abbasmiya Malek

Labour engaged

in excavation

process in 2008

308

08 57 Salimbhai Yusufbhai

Vora

Victim of

property damage

309

F GOVERNMENT WITNESSES.

Sr.No. Witness

No.


01 18 Prafulbhai

Vamanbhai Patel

Exe. Engineer,

Irrigation Dept.

who remains

present duringprocedure on

Malav step well

163


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02 22 Dineshchandra

Thakorbhai Modi

Maintenance

Surveyor,

drawing map of

place of incident

235

03 58 SanjaykumarRamjibhai Patel

Police Constablewho has taken

photograhs of

Shiv Sadan

313

04 59 Kamleshbhai

Jaydevbhai

Brahmbhatt

Fire Officer 317

05 60 Vishalbhai

Dhulabhai Bharvad

Executive

Magistrate,

Anand Rural

322

06 66 Ramanbhai Bavaji

Parmar

Dy. Mamlatdar,

Revenue Dept.

432

07 67 Ashokbhai Tulsibhai

Patel

Mamlatdar

Anand Rural

437

G POLICE OFFICERS:

Sr.No. Witness

No.


01 61 Narvatsinh

Bhupatsinh

Head Constable /

PSO, Khambholaj

Police Station

337

02 64 Keshubhai Rambhai

Bhuva

C.P.I.,

InvestigatingOfficer in year

2002

360

03 65 Himanshu

Chandravadan

Pathak

SIT I.O., Dy.S.P. 367

H FORMAL WITNESS:


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Sr.No. Witness

No.


01 62 Sahinben Abdul

Kadar Vora

Daughter of

deceased

KadarbhaiIsmailbhai Vora

344

I DEFENCE WITNESS:

Sr.No. Witness

No.


01 01 Mahendrabhai

Ambalal Patel

Owner of Shiv

Sadan as per

defence

465

DOCUMENTARY EVIDENCES :

The prosecution has filed the documentary evidence in this case

as under:

Sr.NO. Details of Documents Exh.

01 Panchnama of Ode Malav Bhagol near Bismilla

Masjid

80

02 Panchnama of place of offence opposite

Bismilla Masjid, Ode

82

03 Panchnama of the persons of the injuredwitness

87

04 Panchnama of house of Abdul Yakubbhai

Vora, recovered bones and other Muddamal

88

05 Panchnama of Metador No.GJ-7V-9534 and

Rickshaw No.GJ-7W-163

90

06 Injury certificate of injured Idrisbhai

Abdulbhai

94

07 Injury certificate of injured Firoz Ismail

Matarvala

95


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08 Injury certificate of injured Fakir Mahmad

Gafur Vora

96

09 Injury certificate of injured Firoz Ismail

Kapadwanjvala

97

10 Injury certificate of injured Abdul YakubbhaiVora

98

11 Certificate of Mr. P.J. Raibarkar, Anatomist,

Medical College

101

12 Letter dated 11/3/02 and Yadi dated 14/3/02

adduced by Dr.Raibarkar

103

13 Yadi given by Dr. Ashish Patel to the Police 105

14 Yadi given to Dr. Ashish Patel dated 6/3/02 by

CPI

106

15 Letter written by Dr. Ashish Patel to the

Scientific Officer sending sample

107

16 Report of FSL Scientific Officer to Mr. D.M.

Patel

109

17 FSL report of procedure done in Malav step

well

110

18 Yadi given by Chaudhary to Dr. Alok

Rameshwar Prasad Meena

112

19 Report of Dr. Alok Meena dated 30/5/08 113

20 Opinion of Dr. Alok Meena dated 31/5/08 114



23 Certificate of Dr. Alok Meena dated 3/6/08 117



26 Opinion of Dr. Sanjay Jivabhai Chauhan dated

6/6/08

121

27 Yadi written to Forensic Medicine

Department, Baroda regarding opinion for the

Muddamal bones

123

28 Receipt of receiving Yadi of Forensic Medicine

Department, Baroda

124

29 Report regarding bones given by Forensic 125


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Medicine Department, Baroda

30 Certified literature of Forensic Medicine

Department, Baroda

126

31 Letter and Yadi dated 21/10/08 written by SIT

to Anatomy Department S.S.G. Hospital

127

32 Report of S.S.G. Hospital as per Yadi dated

21/10/08

128

33 Report of Additional Director, FSL regarding

work done at Malav well and Malav step well

132

34 Forwarding letter and dispatch note dated

4/7/08 regarding Muddamal blood sent for

DNA test

134

35 Report of FSL, Gandhinagar 135

36 Letter regarding DNA report sent by FSL dated

6/8/08

136

37 D. N. A. report 137

38 Dispatch note sent by SIT regarding D.N.A.

examination of bones dated 24/7/08

138

39 Receipt of Muddamal by FSL, Gandhinagar 139

40 Report and letter of FSL dated 6/2/08

regarding D.N.A.

140 &

141

41 Report and forwarding letter of Muddamal

bones dated 1/1/08

142 &

143

42 Copy of dispatch note sent by SIT dated

1/11/08

144

43 Receipt of dispatch note and Muddamal 144-A

44 Letter of Medical Officer, Anand sending

D.N.A. profile of Shahinbanu alongwith blood

sampe for D.N.A. matching for bones of

deceased Kadarbhai Ismailbhai

146

45 D.N.A. profile performa 147

46 Yadi written for matching of blood sample of

Illiyasbhai Ismailbhai with Kadarbhai dated

16/7/02

151

47 D.N.A. performa of Iliyasbhai Ismailbhai 152

48 Report dated 28/5/02, Ahmedabad D.N.A. 154


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Division

49 Letter written by Ahmedabad D.N.A. Division

to Chandigadh FSL sending part of Muddamal

155

50 Receipt of Chandigadh C.S.F.L. receiving the

Muddamal and letter

156

51 Report of C.F.S.L. Chandigadh 157

52 Report of C.F.S.L. Chandigardh and FSL

Gandhinagar to the Police Station

158

53 Letter written by Dy. Director dated 13/8/03 159

54 Yadi sent to FSL dated 17/10/08 160

55 D.N.A. blood report of Kadarbhai and his

daughter Sahinbanu dated 24/10/08

161

56 Letter written by Dy. Director to SIT dated

1/11/08

162

57 Letter written to Chief Engineer Irrigation

Department by SIT

164

58 Report dated 6/6/08 regarding obtaining

Muddamal article from Sikotar step well and well

165

59 Report dated 10/11/08 written by Executive

Engineer Anand Division to Superintendent

Engineer

166

60 Report received from FSL dated 15/4/02 167

61 Letter and dispatch note written by SIT to

Director, FSL, Gandhinagar dated 19/5/08

168

62 Receipt dated 30/5/08 written by FSL,

Gandhinagar

169

63 Letter written by Dy. Director, FSL to SIT dated

21/5/08

170

64 Panchnama dated 13/5/08 of Sikotar step well 174





69 Panchnama dated 21/10/08 of Sikotar stepwell

179

70 Panchnama of Malav well dated 15/5/08 180


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75 Panchnama of Malav well dated 23/5/08 18676 Panch slip from Muddamal Article no.5 187

77 Panch slip from Muddamal Article no.6 188

78 Panchnama regarding Malav well dated

24/5/08

189


25/5/08

190

80 Panchnama regarding Malav well dated26/5/08

191


27/5/08

192


30/5/08

193

83 Panch slip from Muddamal 194


31/5/08

195

85 Panch slip of Muddamal Article No.8 196










95 Yadi written by CPI Anand to City Surveyor 236

96 Letter written to Maintenance Surveyor, Ode

by SIT

237

97 Map of place of offence 238

98 Original complaint 245

99 Affidavit of complainant filed in the Honble 246


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Supreme Court

100 Application given by complainant to SIT 248

101 Affidavit of father of complainant filed in the

Honble Supreme Court

250

102 Copy of order regarding taking photographsin the name of Sanjaykumar Patani

314

103 Photographs of place of incident 315

104 CD of place of incident 316

105 Abstract of entry of register of Fire Fighter 318

106 Letter of proclaimation U/s.144 323

107 Notification of Executive Magistrate(Rural)

dated 1/3/02

324

108 Curfew relaxing order dated 2/3/02 passed by

the Executive Magistrate

325

109 Curfew relaxing order dated 3/3/02 326

110 Order dated 3/3/02 for relaxing curfew on 4/3/02 327

111 Order dated 4/3/02 for relaxing curfew on

5/3/02

328


5/3/02 from 12.00 noon to 5.00 p.m.

329


6/3/02

330


7/3/02

331


8/3/02

332


9/3/02

333


10/3/02

334


11/3/02

335

119 Order dated 13/3/02 for lifting of curfew 336

120 Letter of CPI, Shri K.R. Bhuva regarding

registration of complaint

338

121 Abstract of station diary 339


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122 Xerox copy of FIR 340

123 Letter written by Community Health Centre,

Ode to Anatomy Department, Baroda

352

124 Specimen seal and covers of sending

Muddamal

354

125 Receipt of Muddamal 355

126 Letter of CPI, Anand regarding sent the

certificate

356

127 Certificate written by Anatomy Department

Baroda to CPI, Khambholaj

357

128 Rough note of Dr. Bhupendrabharti Gosai 358

129 Dispatch note of sending blood sample ofIlliyas Ismail Vora 361

130 Notification U/s.33(1) of Bombay Police Act 365

131 Order of inquiry sent by SIT Convinor to SIT

Dy.S.P., Shri H.C. Pathak

368

132 CD of work done by the SIT 369

133 Letter written SIT Officer to FSL regarding

matching blood sample of Sahinbanu

370

134 Letter written by SIT, Dy.S.P. to FSL to hand

over Muddamal to authorized person

371

135 Letter dated 9/6/08 written by SIT to keep

Muddamal in Khambholaj Police Station

372

136 Receipts of Muddamal received from Sikotar

step well

373

137 Letter written by SIT, Dy.S.P. to Khambholaj

Police Station

374

138 Copy of public notice issued by the SIT 375

139 Letter written by PSI, Khambholaj to SIT,

Dy.S.P.

376

140 Statement of showing proclaimation of public

notice place by Khambholaj Police Station

377

141 Copy of station diary of Khambholaj Police

Station

378

142 Affidavit filed by the complainant in Hon'ble

High Court in Cri. Misc. Application No.1/2011

420


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143 Affidavit filed by the father of complainant in

Cri. Misc. Application No.164/2011

421

144 Voucher of amount paid to the victim 433

145 Letter written by Mamlatdar (Rural) to PSI,

Khambholaj

438

146 Electoral roll and ration card of deceased

mentioning them to residing in Ode

439

147 Order of Dy. Mamlatdar, Anand 440

148 Order of Dy. Mamlatdar, Anand 441

149 Receipt of amount paid to Sahinbanu 442

150 Receipt of amount paid to Idrisbhai Abdulbhai

Vora

443

151 Receipt of amount paid to Fakir Mahmmad

Gafurbhai

444

152 Affidavit of Defence Witness Mahendrabhai

Ambalal filed in bail application of accused

466

Ld. Special P.P. has filed closing pursuits vied Exh.454. Thereafter

further statements of all the accused were recorded, no accused

has deposed on oath, but accused no.8 filed an application for

examining defence witness vide Exh.461. All the accused have

denied the case in toto and have stated that false charge-sheet is

filed against them due to communal enmity

After the defence witness was examined, the defence filed

closing purshis vide Exh.467. Thereafter the matter was fixed for


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argument on behalf of the the parties.

(9) Ld. Special P.P., Mr. B.C. Trivedi has orally argued the

matter and has filed written arguments on behalf of

prosecution vide Exh.472. Whereas on behalf of

complainant and victims, L.A. Mr. Mansuri has filed written

arguments at Eh.474 after seeking permission vide

6Exh.473. Whereas L.A. Mr. C. K. Patel and Mr. A. H.

Dhagat has argued the matter orally and also filed their

written arguments vide Exh.479.

This court has paid sufficient attention towards oral as

well as written arguments advanced and/or submitted

by the Ld. Advocates, appearing on behalf of both the

parties and they are discussed hereunder at the relevant

point in this judgement and therefore, at the cost of

repetition, it is not produced here.


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(10) In this case, Special Prosecutor, Mr. B.C. Trivedi and

Additional Prosecutor, Mr. A. R. Desai as well as L.A.

appearing on behalf of the original complainant and victim

Mr. Mansuri and Mr. Shaikh has cited some authorities in

support of their case. On the other hand, Ld. Advocates on

behalf of accused, Mr. C. K. Patel and Mr. A. H. Dhagat has

also cited some authorities. This court respectfully bows

down with the law laid down by the Hon'ble Apex Court of

India as well as by the Hon'ble High Court of Gujarat and

other Hon'ble High Courts. All the citations are discussed at

the relevant point in this judgement, hereunder for the

sake of convenience.

(11) The following points arise for my determination of this

case.

(1) Whether the prosecution proves that alleged 3

missing persons are dead ? If yes, whether the death

of 3 persons is homicidal death?


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(2) Whether the prosecution proves that the accused or

any of them in furtherance of common object formed

unlawful assembly with a common object of

voluntarily burning properties causing death

intentionally by fire, causing act to attempt to commit

murder and to rob the properties of the muslims

become member of unlawful assembly ?

(3) Whether prosecution proves that accused in

furtherance of common object of unlawful assembly

by using force and violence have committed rioting by

arming themselves with weapons and inflammable

items ?

(4) Whether prosecution proves that all or any accused as

a members of unlawful assembly in furtherance of the

common object have intentionally knowingly cause

death of 3 persons by burning them alive and thereby

have committed murder ?

(5) Whether the prosecution proves that all or any of the

accused have in furtherance of common object of

unlawful assembly by burning witness have attempted

to commit murder of the witness namely Idrisbhai

Vora, Firozbhai Kapadwanjwala, Firozbhai Matarwala

and Fakir Mahmmad Gafurbhai Vora ?


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(6) Whether the prosecution proves that all the accused

in furtherance of common object as a member of

unlawful assembly or any of the accused individually

has voluntarily caused hurt ?

(7) Whether the prosecution proves that in all the

accused or any of the accused have by forming

unlawful assembly committed robbery or dacoity of

the house-hold items of the victims ?

(8) Whether the prosecution proves that accused in

furtherance of the common object of unlawful

assembly of all the accused or any of the accused

have burnt movable and immovable properties of

muslim persons and caused damaged to the property

by fire and have committed the offence ?

(9) Whether the prosecution proves that all the accused

or any of the accused has committed criminal

conspiracy to commit offence punishable for death,

imprisonment for life or rigorous imprisonment ?

(10) Whether the prosecution proves that in furtherance


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of common object of unlawful assembly all the

accused or any of the accused as member of unlawful

assembly have spoken words intentionally to insult

religious feelings of muslims and have committed the

offence ?

(11) Whether the accused have committed offence by

committing breach of the notification of the District

Magistrate by arming themselves deadly weapons,

Dhariya, burning rags, lighting torch and inflammble

items ?

(12) Which of the accused are liable for committing

offence, and if yes, under which sections ?

(13) What order ?

(12) My findings to the above points are as under :

(1) In the affirmative.

(2) In the party affirmative for accused no.8, 9, 10, 11,

12, 13, 26, 29 and 35.

In the negative for other accused.

(3) In the affirmative for accused no.8, 9, 10, 11, 12, 13,

26, 29 and 35.


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26, 29 and 35.In the negative for other accused.


26, 29 and 35.


(6) In the affirmative for accused no.30.


(7) In the negative for all accused.


26, 29 and 35.



26, 29 and 35.



26, 29 and 35.



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26, 29 and 35.


(12) As per final order.

(13) As per the final order.

(13) Before entering into the appreciation of evidence and

deciding all the points in the case first and foremost, it

is desirable to discuss and decide the point regarding

F.I.R.

(14) As per the case of prosecution complainant, Rehanaben

Yusufbhai Vora has lodged the complaint in Sureli Camp

before the C.P.I. Mr. K.R. Bhuva which is produced during

the deposition of the complainant at Exh.245.

(15) As regarding the authenticity of the complaint and

reliability of the complaint and relying upon the evidence


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of complaint and also witness and it is argued by the Special

Prosecutor that there is delay of filing the complaint, but it

cannot be said to be fatal aspect to the entire case of

prosecution. FIR was lodged on 5/3/2002 at the relief camp

at village Sureli, no family members of the complainant or

any other neighbour remained present in Ode after the

incident happened. All the inmates of the locality were

scattered, some going to Anand at the house of their

relative, some going to Bhalej village. Whereas witnesses

including the complainant were so scared and confused

that they did not think of any thing, much less lodging the

complaint. As per the deposition of Rehanaben, it is

specifically mentioned that on 5th March, 2002 police came

to the Camp and took her compliant and at the time of

giving complaint, Firoz, Idris and her elder paternal uncle

were under treatment in Umreth Hospital and she was too

scared who were the police people is not known to her. SIT

has also recorded her statements complaint was read over


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which was true. It is argued by Mr. Trivedi Special

Prosecutor that it is clear when the complaint was recorded

at Sureli Camp Rehanaben was alone, her cousin and her

father have left at Umreth for medical treatment of injured

namely Idrisbhai, Firozbhai Matarvala and Firozbhai

Kapadwanjwala, Fakir Mahmad and Abdulbhai. The question

of Bai Rehana manipulating the complaint being tutored is

out of place. The complainant was victim of the

circumstance, she had not contacted anybody for lodging

the complaint nor she has narrated the incident to anybody

because atmosphere was totally charged with distrust and

animosity.

As regarding the cross examination of the Rehanaben is

concerned in respect of late complaint filing FIR, also there

is nothing substantial which can cast any doubt regarding

lodging of the complaint. The question regarding possibility

of being tutored by somebody is total denied. The witness


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have escaped from the scene of offence, in such a way that

they only priority was to save their lives. Some of them even

came to know subsequently as to who has died and who

were injured. As such based upon these arguments, Mr.

Trivedi has submitted that FIR cannot be doubted in any

manner and considering circumstances is justified.

Moreover so far as FIR has been sent to the Magistrate, it is

sent late, but considering circumstances, so many

communal riots have taken place, naturally police staff must

be under the tremendous pressure. These circumstances are

such in which nobody can be blamed for late sending of

the complaint to the J.M.F.C., Umreth. It is submitted by Mr.

Trivedi that late FIR and late sending sending of the FIR to

the J.M.F.C. are justified because of circumstances were so

unusual and extraordinary.

(16) The prosecution has relied upon the following citation on

the point of delay sending FIR to Judicial Magistrate, First


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Class.

(1) Balram Singh & Anr. V/s. State of Punjab, AIR 2003

S.C. 2213.

(2) Himmat Sukhadeo Wahurwagh & Ors. V/s. State of

Maharashtra, AIR 2009 S.C. 2292

(17) On the other hand L.A. Mr. C.K. Patel has argued on the

point of late FIR and has submitted that the unfortunate

incident has occurred on 1/3/2002 at 1.30 p.m. till evening.

As per the case of prosecution and the complaint if lodged

after 4 days on 5/3/2002. Before 5/3/2002 the complainant

nor any of the injured witness had stated any ingredients of

the incidents or the details of assailants before the police or

in front of any person nor police has filed any complaint on

behalf of the State considering incident. As such

deliberately though the complainant and the witnesses were

having opportunity of declaring the incident before the

police, but have not done so and have adopted unnatural


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conduct. As such concocted and got-up complaint has been

filed by the complainant which cannot be believed in any

manner.

Mr. C. K. Patel has relied upon in the case ofKailash Gour

& Ors. V/s. State of Assam, reported in 2012 Cri.L.J.

1050 S.C.

(18) Upon hearing submissions of both the sides regarding

significance or insignificance of FIR, in the evidence it is true

that unfortunate incident has occurred on 1/3/2002 and FIR

was lodged on 5/3/2002, it is also a fact that in the Camp

when the complainant had gone for shelter has not uttered

single word of the incident before anybody. As it appears

from the evidence of Rehanaben at Exh.244 apparently and

admittedly the complainant had gone to the Camp on

3/3/2002 in the morning. On 4/3/2002 injured were taken

to hospital and so it appears that the injured were also

scared till 4/3/2002. As considering the evidence of Firoz


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Kapadwanjwala and Firoz Matarwala as appears from the

PW-35 at Exh.269 and PW-36 at Exh.270. That both the

witnesses were rescued by the police, however as per the

say of the Firoz Kapadwanjwala it was Military police, it

makes no larger difference, but it is fact that they were

rescued by the police. Both the witnesses have narrated the

facts before the police during their journey to Sureli. Now

regarding the aspect of narrating the question before the

police and there were opportunity to the witnesses is

concerned, I am of the opinion that the incident which has

occurred on 1/3/2002 was not a simple incident, but was

communal riots which broke out after the incident of

Godhra carnage. The atmosphere prevailing at that juncture

was of disharmony and distrust only. The complainant and

the witness who were witnesses of dangerous incident, must

have been suffering from shock, panic and confusion. The

priority at that time was to save their lives and not to go to

the police station to narrate incident what was happened.


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Naturally the complainant who was hardly 18 to 19 years

old young girl and witnesses who were also same age group.

When facing such atmosphere of commotion, panic, scary

atmosphere, they would have gone in such a situation in

shock and must have been stunned and at that time they

would have not gone for filing of the complaint or

disclosing the incident to other member in the Sureli Camp,

which cannot be denied that the complainant was alone on

4/3/2002 as it appears from the deposition of Mr. K.R.

Bhuva and according to him, he rescued two persons also

has also not cared to take down the incident or interrogate

question injured person even if injured have not told them

or opted to go to for treatment, Mr. K.R. Bhuva has not

taken care to take them to the hospital. Mr. K.R. Bhuva has

not come forward to be a complainant of alleged incident

on 3/3/2002 even in the evening nor has come in the

defence of the witnesses, no police personnel present in the

Camp and the suggestions put before the witness regarding


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police personnel in Sureli Camp before 5th March 2002 are

denied. It is also pertinent to note that the complainant or

any other witnesses have never discussed with each other or

has got any opportunity to frame the facts of the complaint

as it appears from the deposition of Rehanaben, Firozbhai

Matarwala, Firozbhai Kapadwanjwala, Fakirbhai and

Idrisbhai, they have not discussed the question with

anybody or inter-se, so there is no question of framing of

any accused wrongly or framing of the facts of complaint

wrongly. It is also pertinent to note that Hon'ble Apex

Court has also taken cognizance of the situation prevailing

in Gujarat after Godhra carnage and have some distrust

towards role of police personnel and for that reasons SIT

was constituted. As such ordinary person knowing nothing

regarding legal action who has concerned to save his life

and to survive in a atmosphere of disharmony cannot be

said to immediately rush to the police first file the

complaint rather than to save one's own live. So in my


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opinion considering circumstances and atmosphere

prevailing at the particular juncture, merely filing of the FIR

if late cannot be said to be a entire cause for considering

the entire prosecution version of the incident to be false

and as such delay of FIR is not fatal considering the facts of

this case to the prosecution. In the case ofKailash Gour V/

s. State of Assam, reported in 2012 Cri. L.J. 1050 S.C.,

wherein it is laid down by the Hon'ble Supreme Court

that Delay in lodging F.I.R. - Murder alleged to have

taken place in incident of attack by mob on house of

deceased in disturbed area Police though reaching on

spot immediately neither recording statement of

witness nor recording F.I.R. - F.I.R. Recorded only after

statement was given by witness owner of house naming

accused only after deliberations with elders of his

community No explanation given for delay in

recording F.I.R. - Evidence of solitary eye-witness that

he had seen murders in moon light doubtful due to


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presence of fog Medical evidence not supporting

prosecution case Motive of crime alleged to be

demolition of mosque also doubtful as witness, owner

of house had land dispute with some accused Held

accused entitled to benefit of doubt.

Mr. C. K. Patel has placed reliance upon the above cited

ruling considering the facts of the case cited as there were

no such compelling circumstances which have come on

record in the present case and so the delay which was not

satisfactorily explained was found to be a fatal to the

prosecution. Whereas herein this case conditions of the

witness and the complainant can be made out from the

incident which has happened all the inmates have left the

locality, no near relative, except the complainant was

present in Camp, the 5 persons who were injured, who were

waiting for their treatment, naturally first priority was to

take treatment as they were burnt in the incident. As such


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considering top priority of their lives, if they had not filed

the complaint in time, it cannot be said that the entire

incident has concocted.

(19) As in the case of (1) Balram Singh & Anr. V/s. State of

Punjab, reported in AIR 2003 S.C. 2213, wherein Hon'ble

Supreme Court has held that F.I.R Delay in sending

jurisdiction Magistrate Whether fatal incident

occurred at 8.30 p.m. on 5/5/1990 Police station

situated at distance of 40 Kms from place of incident

Considering law and order situation in State during

relevant period nothing unusual in police reaching

hospital aroun 9.00 a.m. in morning on 6/6/1990 F.I.R.

Recorded sent to jurisdiction Magistrate which reached

him around 0305 hrs. on 6/5/1990 There is delay in

preparing the F.I.R. - Delay of sending the same to the

jurisdictional Magistrate by itself, would not in any

manner weaken the prosecution case It has to be


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judged keeping in mind creditworthiness of ocular

evidence.

(2) In the case of Himmat Sukhadeo Wahurwagh

& Ors. V/s. State of Maharashtra, reported in the case

of AIR 2009 S.C. 2292, wherein Hon'ble Supreme Court

has held that Evidence showing that accused by their

act had let loose reign of terror and were looking for

more members of family of deceased Delay in filing

F.I.R. And conducting investigation in circumstances

becomes insignificant Conviction of accused not

liable to be interfered with.

(3) As in the case ofRamchandra & Anr. V/s. State of

Punjab, reported in 1982 Criminal Law Journal 36, there

was a delay in lodging the complaint and delay was

caused to anxiety of relative to provide medical aid to

the injured persons before filing of FIR. It was


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observed that delay must be deemed to be well

explained.

Keeping in the mind ratio laid down in the cited ruling in

my opinion no doubt there is a delay in filing FIR, but

considering circumstance the atmosphere prevailing at the

time the delay is not fatal to the prosecution.

So far as FIR is sent to the Magistrate U/s. 157 of the

Criminal Procedure Code is sent late which cannot be

denied. Xerox copy of FIR at Exh.340 reveals that the FIR is

sent to the Magistrate at a later stage. Looking to the

circumstances prevailing at the relevant time communal

riots had taken place under the various villages which were

under the jurisdiction of the I.O., there were communal

riots in Khambholaj, Vasad, Sarsa, Mogar, Mogari and

Vallabh Vidyanagar. As such there was more than six police

station involved in the bringing the situation in control at


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the relevant time and so the staff must would have under

tremendous pressure, hence mere late sending the

complaint to the Judicial Magistrate, First Class at Umreth

can never become the ground for doubting the complaint,

considering circumstances at the relevant time unusual and

extraordinary nobody can be blamed for the delay of

dispatch the complaint to the Magistrate and once the

complaint was lodged recorded in the station diary offence

registered than, only the delay in sending the complaint to

the Magistrate cannot have any importance upon the

impact of the incident occurred and narrated in the

complaint. Hence, in my opinion delay in filing the

complaint and sending it to the Magistrate is not fatal to

the prosecution in any manner.

POINT NO. 1

(20) The most important aspect in this case is that the accused

have charged with the case of causing death of 3 persons

by burning them alive; namely Nooriben, Aaiyeshaben and


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Kadarbhai. No doubt it is unique case in which first of all,

whether 3 persons are dead is to be established and

thereafter, whether the death of the 3 persons is homicidal

is to be seen. It is unique case that in the entire case no

dead body of any person is recovered. The defence has

challenged Corpus of murder, there is no recovery of

dead body nor as per the say of defence Muddamal bone

which are recovered are proved satisfactorily to be human

origin nor any DNA test has been found in this case. As

such defence has come with the case that 3 persons who

have been alleged to be murdered are missing and not

dead.

(21) Whether in the case of murder identification of Corpus

Delictiis necessary is to be seen. The following citations are

relevant on the point of identification of Corpus Delicti

relied upon by the prosecution in the case of (1) State of

West Bengal V/s Mir Mohammad Omar, reported in AIR


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2002 SC 2988, (2) Sevaka Perumal V/s. State of Tamil

Nadu, reported in AIR 1991 S.C. 1463, (3) Badshah V/s.

State of U.P., reported in 2008 AIR S.C.W 1359 and (4)

Mani Kumar Thapa V/s. State of Sikkim, reported in

AIR 2002 SC. 2920.

(22) On behalf of the defence L.A. Mr. C.K. Patel has relied upon

the case ofHari krishna V/s. State of Haryana 1990 Cri.

Law Journal 385 (P & H).

(23) Now appreciating this point first of all, it is required to be

seen that the persons alleged to have been killed namely

Nooriben, Aaiyeshben and Kadarbhai are dead or missing.

No doubt as in this case, no dead body is recovered, no

P.M. is conducted, there cannot be direct evidence

regarding the death of 3 persons. But for appreciating point

of death circumstantial evidence and other ocular evidence

is to be seen in this case, panchnama of the scene of

incident is carried out which is not denied. Panch witness


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Bismillakhan Akbarkhan Malek has been examined at

Exh.79, he has stated in his evidence that 5 to 6 years

before the date of evidence on 6

th

he was called by C.P.I.,

Mr. K. R. Bhuva at Ode Malav Bhagol, there was one

another officer who he does not know, the place was

situated near the residence of Abdulbhai which was open

place, there was heap of ash and some bones of ash were

seized from the place, which were taken in a box, which

was sealed and panchnama was drawn which was exhibited

at Exh.80. In the same way panch witness Faridkhan

Jabarukhan is examined at Exh.87, he has stated in the

evidence on 8/3/2002 police has called him at Ode, Malav

Bhagol as a panch at 6.00 p.m. In evening, Mr. K. R. Bhuva

and other police persons were present, complainant

Rehanaben was present, panch had gone to house no.839

which was of Aaiyeshaben consisting of 2 rooms and one

open Osari. FSL Officer searched the ground with iron rod

and found 200 grams of bones on which there was ash and


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also found one piece of almond colour flower design Sari

and one red colour piece of Petticoat, which was identified

by the complainant Rehanaben as is of Aaiyeshaben. In the

other house no.841, there was nothing found except ash, as

such from the evidence of panch witness Bismillakhan

Akbarkhan Malek and Faridkhan Jabarukhan Pathan, it is

undisputed that charred bones were recovered.

(24) The aspect of collection of bones is also supported by the

say of the Dr. Dhananjay Maganbhai Patel, Scientific

Officer, Mobile who is examined at Exh.108, he has stated

in his evidence that on 6/3/2002 at morning 5.50 a.m., he

departed from Anand towards Ode and went to the place

situated near Manu Bhagats house open place, Mr. K. R.

Bhuva met him, there was a heap of house hold kits burnt

doors, he searched minutely from the heap, pieces of

bones were recovered which was handed over to the I.O.

for sending it for analysis for further procedure.


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In the same way, Dr. D.M. Patel has stated that on

8/3/2002 he had gone to Malav Bhagol at the residence of

Abdulbhai Vora, Rehanaben was also present, they found

some flesh, some bones, burnt piece Sari, burnt piece of

Petticoat which was seized and sent for analysis and from

the residence of Nooriben ash was collected which was sent

for analysis.

As regarding this say Rehanaben has also submitted same

aspect of collection of bones recovery burnt Sari, Petticoat

and lump of flesh. Mr. D. M. Patel as well as Rehanaben has

identified the Muddamal before the Court.

(25) Now regarding aspects of findings of bones is concerned,

bones are examined by Anatomist Dr. Chhaganbhai

Jinvarshah Raibarkar, Anatomist of Karamsad Hospital

examined as PW-7 at 7Exh.100. Dr. Raibarkar has


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specifically stated that on 11/3/2002, he received Yadi from

the Ode Medical Officer and also received a letter dated

10/4/2002 alongwith letter, he had received sample of box

A & B. Bones which were received by him were examined

sample-A consisted of broken & burnt bones and sample-B

consisted of broken pieces of bones. He identified bones in

box-B which were mandibular fossa and part external

auditorymeatus of skull, piece of skull cap, part of

zygomatic bone, Hamate bone of hand, piece of mandible,

middle phalanx, terminal phalanx, piece of spine of cervical

vertebra, navicular one of foot. As per the say of Dr.

Raibarkar all the pieces were identified and appeared to be

of human, as sex cannot be decided and whether belonging

to some persons also cannot be determined, DNA facility

was not available. Dr. Raibarkar was a expert in Anatomy

from 1965 1967 report of Dr. Raibarkar is produced at

Exh.101, whereas letter dated 11/3/2002 is produced at

Exh.202. It is unfortunate as it appears from that letter


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alongwith burnt bones piece, Sari and Chaniyo was also

sent to the FSL, but nothing has come on record which

shows in efficiency of I.O. From the cross examination of

the Dr. Raibarkar, it is admitted that the size of the bones

were not mentioned by the doctor, the possibility of

extracting red and yellow bone marrow from the bones

which are not burnt is answered that if bones are long than

only it can be extracted, hence no such extraction is made.

No doubt Dr. has admitted that as per anti human serum

test, piece of bone precipitation test is done, whether

bones are of human origin can certainly made out. It is also

admitted Dr. Raibarkar that he has not conducted this test,

however, the doctor has suggested DNA test. Considering

evidence of Dr. Raibarkar, he is expert Anatomist, nothing

has come on record in the cross examination that bones

were of any animal. These bones which were identified by

the Dr. Raibarkar were found at the instance of panchnama

drawn at Exh.88, because piece of Sari and Petticoat was


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also sent alongwith Yadi. As such bone which was found at

the residence of Abdul Vora pieces were of human origin

as per the say of Dr. Raibarkar which cannot be disbelieved.

Naturally in small village of Ode nothing has come on

record that the persons who are missing were having

animals in their houses. No doubt there may be different

method to analyze and to find that bones are of human

origin, but Expert Dr. Raibarkar cannot be challenged

merely on the gound that he has not resorted to

alternative method.

(26) As regarding the aspect of 3 persons death is concerned,

one more important witness who has been examined at

Exh.351 in this case is Dr. Bhupendrabharti Bhikhabharti

Gosai, as per his say in 2002 he was serving in Vadodara

Medical College in Anatomy Department. On 26/3/2002

letter of Medical Officer, A. M. Patel serving in Community

Health Centre(CHC), Ode were received on 27/7/2002


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alongwith one cardboard and forwarding letter specimen

seal was received. The Head of Deaprtment(HoD) gave him

sealed box and forwarding letter of CHC, Ode along with

specimen seal. Dr. Deepak Vyas, HoD wrote a letter to

Khambholaj Police Station regarding the receipt of box

which produced at Exh.352 . As per the letter, it was asked

that whether bones sent are of human origin and of one or

more person and also to describe sex and age and to get

the bones DNA analysis from Baroda FSL and to sent the

report. Moreover Dr. has also received dispatch

note(Ravangi Nodh) which is produced at Exh.353, the

specimen seal, sample and letter sent alongwith it is

produced at Exh.354. The receipt of the Muddamal is

produced at Exh.355. The Dr. has also received letter from

C.P.I on 24/5/2002 sending the certificate of the Muddamal

is produced at Exh.356. As per the say of Dr. Gosai on

30/5/2002, he alongwith his colleague Dr. Saroj Kumar

inspected Muddamal sample Mark -A in which there was


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plastic bag containing pieces of bones, (1) part of right and

left complete burnt patella, (2) small pieces completely

charred metatarsal bones, (3) small piece of trochlear part

of completely burnt humerous, (4) small piece of

completely burnt unidentified bones. As per the say of Dr.

unidentified bones sent him were of human origin and age

and sex cannot be determined. Moreover bones were of

single or more than one person was also not determined.

The Dr. had given the certificate in his hand writing on

30/5/2002 which is produced on record at Exh.357. As per

the say of Dr. nobody had come to collect the Muddamal,

as such in this case, Muddamal was destroyed as it appears

in the deposition of panch witness at Exh.79. Dr. has also

deposed that he has made some notes while giving

certificate in his hand writing and he and Dr. Sarojkumar

has signed on notes which are produced at Exh.358.

(27) Now in the cross examination of Dr. by L.A. Mr. C. K. Patel,


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nothing has come on record adverse which say that the

bones are not received nor doctor has inspected bones

and has given the certificate. Merely procedure of seal as

well as regarding correspondence has been challenged,

which does not shake the version of doctor regarding the

inspection of bones.

As in the cross examination by L.A. Mr. A H. Dhagat, it

is admitted that FSL and Anatomy are two different subject

to opine regarding bones, Anatomy is resorted. Dr. has

admitted that he has opined by perception, he has not

used any scientific chemical method though FSL is having

facility of DNA finger printing and chemical analysis. It is

admitted that if chemical analysis of ash of burnt bone is

done, the bones are of human nature can be made out

truly. The Dr. has advised for DNA test, but no facility was

available with the doctor. Dr. has himself stated that on

the basis of his expertise and visual perception the bone


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are of human origin. As placed before the doctor that if

he would had DNA facility, he would have opted for DNA

test, Dr. has replied that DNA is not his subject, hence he

has not called for DNA test. It is admitted fact that doctor

has opined on the basis of his visual perception and

presumption and his expertise.

(28) Considering evidence of Dr. Gosai nothing adverse has

come on record regarding his expertise which goes against

him. He is an Expert Anatomist. He has opined on the basis

of his broad expertise and visual perception, that the bones

received by him were of human origin, then there is no

reason to disbelieve the version of Expert Anatomist. No

doubt, he has not opted for any chemical or scientific

method as that does not come in his purview to do

chemical analysis of the bones, he being expert of bones

i.e. human Anatomist, he has given his opinion regarding

human bones on the basis of his knowledge and expertise


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and experience. As such though alternative method which

must be in existence and the Dr. has not gone for that

alternative method, as it was not in his purview the opinion

given by the doctor Gosai cannot to be said to be a perfect

opinion, this argument on behalf of the defence is not

sustainable. As such evidence of Dr. Gosai on the point of

bones are received by him of human origin is reliable,

trustworthy and believable.

(29) It is admitted facts that in this case that DNA of the

deceased was not found out nor matched with any of the

heirs of deceased. As regarding point of DNA analysis and

DNA matching is concerned, Dr. Anilkumar Madhukant

Maheta is examined at Exh.153. That on 28/5/2002, he

received one sealed box one blood phial of one parcel-A in

which there was one piece of cloth recovered from Ode

Malav Bhagol which was identified as A-1. As A-2 burnt

tissues and piece of bones and A-3 was ash found from


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Noori Gafurbhais house and parcel-B was blood sample of

Idrisbhai Abdulbhai Vora, DNA finger printing was done

and in sample A-1, A-2 and A-3, no blood was found.

Whereas in sample A-2 was completely burnt, no DNA was

extracted, nor any DNA was extracted from sample A-3.

DNA was extracted from sample-B blood of Idrisbhai. As

there was no DNA extracted from any other DNA extracted

from Idrisbhai blood was not able to be matched. As such,

as per the say of doctor DNA was not extracted and so

DNA was not matched.

As per the say of Dr. Anilbhai Mehta on 20/7/2002, he has

received two parcels from Ahmedabad FSL in which there

were pieces of bones, identified as bones of deceased

Kadarbhai and other sample containing 5 ml. blood of

Iliyasbhai Ismailbhai Vora who was brother of deceased

Kadarbhai. One part of both the samples was sent to

Chandigadh CFSL for correct opinion. The report of


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Chandigadh CFSL was received on 16/7/2003. As per the

report of Chandhigadh CFSL piece of bones was of brother

of Iliyasbhai Ismailbhai Vora was not possible to be of

brother of Iliyasbhai Ismailbhai Vora. Report of Chandigadh

CFSL is produced at Exh.157. The letter of receiving the

Muddamal sample is produced at Exh.156. Report of DNA

matching of Idrisbhai and bones sample of A-2 is produced

at Exh.154 and the letter to CFSL Chandigadh sending

sample of bones and blood phial of Iliyasbhai Ismailbhai is

produced at Exh.155. A letter written by Dr.Maheta on

8/8/2003 with his report is produced at Exh.158. A letter

of Dy. Director S.L. Vaya under which report at Exh.157 and

158 is produced produced at Exh.159.

(30) The sample of blood of Iliyasbhai Ismailbhai Vora collected

by Dr. Umaben Jadavbhai Pipliya who is examined at

Exh.150, she has stated that on 16/7/2002 Iliyasbhai

Ismilbhai Vora was sent with police Yadi on 17/7/2002


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alongwith him Majidmiya Muradmiya and Safimiya

Mahmadmiya Malek accompanied him for his

identification. She has collected 5 CC of blood prepared

DNA profile perform of Kadarbhai alonwith the signature

of the witness Iliyasbhai Ismailbhai Vora. Yadi is produced

at Exh.151. DNA profile performa is produced at Exh.152

and DNA matching procedure was done by Dr. Anilkumar

Madhukant Maheta whose deposition is discussed earlier.

(31) It is pertinent to note that in 2002 after constitution of SIT

DNA finger printing procedure has been again resorted by

SIT regarding which blood sample of Shahinbanu Yasinbhai

Vora and deceased Kadarbhai Ismailbhai has been collected

by Dr. Arvind Jethabhai Dalwadi, who is examined at

Exh.145. He has stated in his deposition that on 7/7/2008 at

1.15 p.m.. He received a Yadi from SIT, Dy.S.P., Shri H. C.

Pathak for collection of blood sample of Shahinbanu

Yasinbhai Vora alongwith the prescribed form, two

photographs of Shahinbanu alongwith Mahmad Hanif


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Hasan Vora, Iqbal Abdulbhai Vora also came who

identified Shahinbanu and as per the procedure he

collected the blood of Shahinbanu and sealed the phial

filled up the DNA profile performa. Yadi is sent produced

at Exh.146, whereas DNA performa is produced at Exh.147.

(32) Blood sample of Shahinbanu for DNA finger printing which

was examined by Dr. Nikunj Narhari Brahmbhat alongwith

the second part of sample bones which was sent to

Chandigadh CFSL, alongwith report of CFSL Chandigadh. As

per the test conducted by Brahmbhatt, it was found that

Sahinbanu was not biological daughter of Kadarbhai

Ismailbhai from whose bone DNA was extracted. The report

was sent to the SIT which is produced at Exh.137.

(33) From the evidence of FSL Officer, it appears from the

bones of Aaiyeshaben, no DNA was extracted, which not

matched with the blood of Idrisbhai. Whereas CFSL


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Chandigadh report is concerned recovered bones of pieces

of was not of sibling of Kadarbhai Ismailbhai Vora and at

the same time in the year 2008 when blood sample of

Shahinbanu is sent for DNA finger printing, though DNA is

extracted from the Sahinbanu is not biological daughter of

Kadarbhai. Whereas ash which was recovered from the

house of Nooriben, no DNA was extracted. As such from

the entire evidence the facts which emerges on record are

that bones which are found at the time of panchnama

which are sent to Anatomist inspection are of human origin

which cannot be denied. But bones of Nuriben,

Aaiyeshaben and Kadarbhai is not determined, as DNA is

not turned positive. However, it goes without saying yet the

case is of death of 3 persons, as all the 3 persons are not

yet found out alive in any way, in any manner and in any

place. Because, before the incident all those 3 persons were

alive, they were seen by the witnesses that Aaiyeshben and

Nooriben have entered into the house which was set on


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fire by the mob. Bones are recovered from that place

allegedly one person has been burnt to death, as per the

prosecution case near the open chowk, where Jayeshbhais

residence is situated. Even for the sake of argument, it is

not a place, as per prosecution and if it is a place near

Bismillah Masjid, near the Cabin of Abdulbhai and if bones

are recovered from that place rather than the place at

Exh.80 then also death of third person is proved to have

taken place. It is an admitted fact that incident has

occurred on 1/3/2002 at 1.30 p.m. to 1.45 p.m. Till today

more than 10 years have been passed or till the date of

evidence in the court 8 years had passed, no where has

come on record that any person in the village have seen 3

alleged dead persons to be alive or moving in the village or

any other place, they have been seen. So they are not in

existence more than 7 years.

On the other hand, it has come on record that heirs of


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deceased persons have received their compensation of

death not as missing persons, but as deceased person.

PW-66 Ramanbhai Bavaji Parmar examined at Exh.432 has

stated that in the year 2002 in riots affected person whose

property was damaged and who had expired compensation

was to be paid to the heirs of the deceased and to the

injured persons also in Ode village. In Ode village Malav

Bhagol 3 persons who were died namely Nooriben

Gafurbhai Vora, Abdul Kadar Ismailbhai Vora and

Aaiyeshaben Abdulbhai Vora. The amount of compensation

was paid by cheque for the death; Nooribens amount of

compensation was paid to Fakir Mahmmad Gafurbhai Vora,

Abdul Ismail Kadars Vora amount of compensation was

paid to Shahinben Abdul Kadar and Aaiyeshaben Abduls

amount of compensation was paid to Idrisbhai Abdulbhai

Vora and vouchers were signed which were produced at

Exh.433.


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In the cross-examination, it is admitted that no

documentary evidence regarding their death has been

produced. No documentary evidence regarding their injury

and death in Ode Nagar Palika is produced. The entire

proceedings were done by the Collector and Mamlatdar,

Anand. In the cross-examination of the witness and from

the entire evidence, nothing adverse come on record,

which can be said to affect the deposition of the witness.

(34) PW-67 Ashokbhai Tulsibhai Patel, Mamlatdar Anand Rural,

who examined at Exh.437, he has also stated that in the

year 2002 in communal riots, who were paid compensation,

he has brought on record of the same. Yadi was sent

regarding deceased by the Dy.S.P., Vabang Zamir. 27

persons list were examined. Whereas Executive Magistrate

received list of 37 persons in the list of Mamlatdar Anand

Rural, names of Abdulkadar Ismailbhai, Nooriben

Gafurbhai, Aaiyeshaben Abdulbhai were shown as missing.


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Whereas in the report of Dy.S.P., they were referred as

missing at 25 to 27. The list of missing persons is produced

at Exh.438. To ascertain the existence of the persons in

Ode. Copy of ration card and electoral roll is also obtained

at the relevant time which is produced at Exh.439 alongwith

the main Yadi. On 22/10/2002, Dy. Mamlatdar issued an

order to pay relief amount to the deceased and missing

persons of communal riots in which at no.19 aid to

Nooriben was to be given to his son Fakir Mahmmad Gafur.

The said order is produced at Exh.40. On 22/11/2002 Dy.

Mamlatdar Office issued an order alongwith the details to

pay aid amount to deceased and missing persons of the

communal riots in which is at no.5 aid Abdulkadar Ismail

was paid to his daughter Shahinben as natural guardian

Aminaben Ismailbhai at no.6. Aaiyeshabens aid was paid to

Idrisbhai Abdulbhai Vora. Order is produced at Exh.441.

The receipts of payment of amount to all the 3 persons

heirs was signed which is produced at Exh.442, 443 and 444.


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(35) In the cross examination of said witnesses, nothing has

come on record which can be said to be adverse against

the evidence of all the witnesses. It is admitted facts that

no death certificate has been produced to ascertain the

death in record It has been tried to brought on record

through cross examination that whatever aid has been

given by the Government is not ascertained as to given to

the deceased or missing persons. The defence has tried to

bring the case of 3 persons are missing and not death. But

considering the evidence on record, no doubt in the case

of mass communal riots where persons are burnt alive to

death and the dead body is not recovered only bones are

recovered. The defence has tried a lot to show that

persons are not dead, but 3 persons are missing till today.

But it is impossible to believe the say of defence

considering the evidence on record. If naturally

prosecution has proved case of missing persons is of dead


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to various aspects by ascertainment of the bones by way of

payment of cheque to the family of the deceased. When

persons are missing for more than 7 years, they were not

being heard since more than 7 years and where nobody has

come forward during these years, that the 3 persons

alleged to have been died are alive. Then as per Sec.108 of

Indian Evidence Act, burden of proving that persons is

alive who has not been heard for 7 years is shifted to

person who affirms it.

Section 108 States as under : Provided that when the

question is whether a man is alive or dead, and it is

proved that he has not been heard of for 7 years by

those who would naturally have heard of him. If he

had been alive, the purpose of proving that he is alive

is shifted to the person who affirms it.

Section 108 presumption of death will arise if a person

is not heard for 7 years. This presumption extends no


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further. In short the Sec.108 provides that the person is

unheard for 7 years, there shall be presumption of

death.

There is nothing on record which can ascertain during

these years after the lapse of 10 years, 3 persons who are

not found or alive or were seen some way. As such it

create no doubt in the mind of this Court that all the 3

persons who allegedly to be missing are dead.

(36) Now next aspect which is to be considered that whether

death of 3 persons is homicidal ? It is fact that 3 persons

were found alive before the incident had occurred. As

incident broke out from the same day, all 3 persons are

missing. Bones of human origin which are found at the

place of incident. From the panchnama at Exh.88 there are

clothes and bones found. It is a place where houses were

set on fire and so persons have died is an admitted fact on


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record. Naturally question which is occurred is not a

question which can be primary said to be clear incident of

murder, as no dead bodies are recovered, only on the

basis of bones 3 persons are found to be dead. Naturally 3

persons who are died have not died that of accident. No

where in the entire case, there is claim of accidental fire or

any accidental death of the deceased nor in the entire case

there is claim for natural death of 3 persons, nor is there

any claim for case that the persons have committed suicide

during or after the incident. It is clear case in which 3

persons have met their death and that death is due to fire,

as houses were set on fire, they are burnt alive. And so, it is

case of homicidal death which cannot be denied.

(37) Now as regarding the main point, whether in this case dead

body has not found it can be said that persons who have

died have not met of homicidal death or it has not case of

murder.


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(38) As in the case of Mani Kumar Thapa V/s. State of

Sikkim, reported in AIR 2002 SC 2920. Wherein it is

held that in case of trial for murder, it is not

absolutely necessary nor an essential ingredient to

establish Corpus delicti. Referring to the case of

Sevaka Perumal and Anr. V/s. State of Tamil Nadu,

reported in AIR 1991 S.C. 1463. Honble Supreme Court

in case of Mani Kumar Thapa has observed It is a well

settled principle in law that in a trial for murder, it is

neither an absolute necessity nor an essential

ingredient to establish corpus delicti. The fact of the

death of the deceased must be established like any

other fact. Corpus delicti in some cases may not be

possible to be traced or recovered. There as a number

of possibilities where a dead body could be disposed of

without trace, therefore, if the recovery of the dead

body is to be held to be mandatory to convict an


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accused, in many accuse would manage to see that

the dead body is destroyed which would afford the

accused complete immunity from being held guilty or

from being punished. What is therefore required in law

to base a conviction for an offence of murder is that

there would be reliable and plausible evidence that the

offence of murder like any other factum of death was

committed and it must be proved by direct or

circumstantial evidence albeit the dead body may not

be trace.

(39) In the case of Badshah and Ors. V/s. State of U.P.,

reported in 2008 AIR SCW 1359; wherein Hon'ble

Supreme Co

Ode Massacre Gujarat Riots Case Judgement

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