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SUPREME COURT OF INDIA
K. JAYACHANDRA REDDY AND G.N. RAY, JJ.
Paresh Kalyandas Bhavsar, Appellant
Versus
Sadiq Yakubbhai Jamadar and others, Respondents.
Criminal Appeals Nos. 560 with 247 of 1992#.
Decided on 24-3-1993.
WITH
Sabaskhan Nurkhan Pathan and others, Appellants
Versus
State of Gujarat, Respondent.
Advocates appeared
Mr. Arun Jaitley, Sr. Advocate and Ms. H. Wahi, Advocate with him, for Appellant in Crl. A. No. 560/92; Mr. T. U. Mehta, Sr. Advocate, M/s. M.T. Refai, M.B. Saiyed, and M.V. Goswami, Advocates with him, for Appellant in Crl. A.No.247/92 and for Respondent in Crl. A. No. 560/92; Mr.S. K. Dholakia, Sr. Advocate, M/s. S.K.Sabharwal, Bimal Roy Jad, Anip Sachthey, Ms. Meenakshi Arora, Advocates with him, for Respondent in Crl. A. No. 247/92.
Held; that the Executive Magistrate, C.W. 1 came to the hospital and recorded the dying declaration of P. W. 5 all alone by himself and we have already considered the various submissions regarding various aspects of the statement. Therefore the submission that some other statements must have been recorded either from Nishita, the deceased or Bharati, P.W. 6 or for that matter P.W. 5 is devoid of substance. Learned counsel also commented upon the delay in recording the statements of P.Ws . 5 and 6. P.W.22 has give all the details of the investigation that was carried on 12.4.1990 on which day he recorded the statements of P.Ws. 5 and 6. The evidence of P.W. 22 coupled with the evidence of the Doctors would show that P.Ws. 5 and 6 were undergoing treatment No doubt the Doctor admitted that they were conscious but that by itself is not a ground to infer that the police deliberately avoided recording their statements. At any rate the delay in recording their statements by itself does not render their evidence suspicious and untrustworthy. Their presence at the scene of Occurrence is not in dispute and they were the victim who suffered serious injuries. Even if there are some lapses on the part of the investigating officer it cannot affect their evidence provided we are satisfied that they are reliable w Messes. We have already referred to their evidence in detail and at the risk of repetition we must say that they have given a clear, cogent and convincing version, which is undoubtedly a truthful one. The main attack against their evidence is that they have fallen in line with P.W. 4 and implicated these accused. This submission is based again mainly on the basis of the dying declaration of P. W. 5 recorded by the Executive Magistrate, C.W. 1 in which no names of the assailants were mentioned. This aspect, we have already considered and explained. Another aspect pointed out in their evidence is that their version namely that kerosene was poured and the deceased were set on fire, is not supported by the medical evidence or panch witnesses inasmuch as they did not say that there was smell of kerosene on the dead bodies. This again is a minor thing. It may be that neither the Doctors nor the panch witnesses particularly noticed this detail. At any rate even in the earliest report given by P.W. 4 it is mentioned that kerosene was poured on Nishita and Komal and they were set on fire. The medical evidence ful1y establishes that they died because of burns. Therefore it cannot be said that there is any infirmity in the evidence of P.W.s. 5 and 6 in this regard. (Para 14)
(ii) Evidence - Interested witnesses Communal riots - Mere interestedness is not a ground to reject the evidence of the eye - witnesses particularly those who are injured - Their evidence to be scrutinised with care and caution.
Held: It is needless to say that mere interestedness is not a ground to reject the evidence of the eyewitnesses particularly those who were injured. Firstly their presence during the occurrence cannot be doubted. Secondly the injured witnesses would be the last persons to leave out the real culprits and implicate others falsely. However, it becomes necessary to scrutinise their evidence with great care and caution. Normally in a case of this nature the evidence of such witnesses is scrutinised in the light of the medical evidence, their previous statements, the earliest version put forward and other circumstances like the investigation-being defective and also the effect of omissions or discrepancies, if any. (para 6)
(iii) Evidence - Communal violence - There was already information about the commission of cognizable offence - Any statement recorded thereafter can be used to contradict the witness.
Held: There cannot be any dispute that any statement recorded during the investigation is covered by Section 162, Cr. P.C. In the instant case the vague information was about the communal riots and violence. Even if entry to that effect is made, the question is whether the investigation commenced in the strict sense. In our view we need not seriously consider this submission inasmuch as even assuming that the complaint is hit by Section 162, Cr. P.C. that by itself does not make any difference. A statement of that nature can be used to contradict the witness and if any material discrepancies are there they can be taken note of. We have already referred to the contents of the complaint and P.W. 4 was cross-examined with reference to the contents therein. P.W. 4 is not an eye - witness to the occurrence inside the house of P.W. 5. Therefore even assuming that there are some omissions and discrepancies in the evidence of P.W. 4 they would not affect the evidence of P.Ws. 5 and 6, the most material witnesses in the case. In any event P.W. 4 evidence discloses that he mentioned the names of those accused whom, were active in the crowd and participated in the violence. P.W. 4 evidence only corroborates the evidence of P.W s. 5 and 6 to that extent. (Para 13)
(iv) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 19(1) - Appeal against acquittal- Communal violence - Seeing the police the persons in the crowd started running away - A-1 to A-3 while running away were chased and caught - The evidence not safe to hold that they were also members of the unlawful assembly - Order of acquittal sustainable.
JUDGMENT
K. JAYACHANDRA REDDY, J.:—These two appeals filed under S. 19(1) of the Terrorist And Disruptive Activities (Prevention) Act, 1987 (TADA Act for short) arise out of the same judgment of the Designated Court, Vadodara in TADA Case No. 12/90. Criminal Appeal No. 247/92 is filed by the five convicted accused who figured as original accused Nos. 5 to 9. The other four accused (original accused Nos. 1 to 4) were acquitted. Challenging the said acquittal, the complainant Paresh Kalyandas Bhavsar (P.W. 4) who gave the First Information Report, has filed Criminal Appeal No. 560/92. Both the appeals are being disposed of here by a common judgment. First we shall take up Criminal Appeal No. 247 of 1992.
Criminal Appeal No. 247 of 1992.
2. The facts of the case as put forward by the prosecution are as follows :
Moti Chhipwad is an area In Vadodara City. In one locality in that area Hindus are predominantly the occupants and in another locality called Bhaiswada the Muslims are predominantly the occupants. Since 1985 there have been communal disturbances resulting in rioting between the two communities. Narendrabhai Ramanlal Bhavsar, P.W. 5 residing in Moti Chhipwad was serving in a private firm at Ahmedabad and he used to go to Ahmedabad and come back in the evening to his house where he used to reside with his wife Nishita alias Dipika, his two daughters namely Nainisha aged 6 years and Komal aged 1-1/2 years. His younger sister Bharati, P.W. 6, aged about 18 or 19 years was also residing with him in the same house. His house is situated at the end at the Naka of Bhaiswada and near Sanyas Ashram. Rikshaw garage belonging to Kadarbhai, A-6 is situated opposite his house. The house of Gabubhai, A-4 is situated near the house of A-6. A-4 was residing in his house along with his son Yakubbhai, A-9. A-4 was running it Pan Galla near Sanyas Ashram. All other accused are the residents of Bhaiswada. P.W. 4, the complainant in the case Is also a resident of Moti Chhipwad. Some of other witnesses also belong to the same locality. Oil 7-4-90 Curfew was imposed in those areas and on that day P.W. 5 returned to Vadodara from Ahmedabad at about 8.15 p.m. by train and he learnt at the Station that communal disturbances have started in the city. He was worried about his house and hurriedly reached his house at about 8.30 p.m. and he found his sister, his wife and daughters in the house. They had their meals and P.W. 5 was sitting on the otta of the house. At about 9.15 p.m. he heard some shoutings from the side of Moti Chhipwad and he noticed that stones hurled were coming towards Moti Chhipwad from the corner of Haji Ramjan. Immediately after five minutes stone throwing started in his area. People in their locality were crying for help. P.W. 5 went inside his house and closed the doors by means of a chain. Within five minutes a mob consisting of about 10 to 15 persons belonging to Muslim community rushed towards his house from Bhaiswada Street and Dudhwala Street and they were shouting "Kill, Burn, Beat". They were armed with deadly weapons and were carrying burning rags. Through the rift on the window of the door of his house, P.W. 5 saw the mob. In the meanwhile, the mob climbed up the otta of the house of P.W. 5. They broke open the door of the house by means of pushes. At that time P.Ws 5 and 6 and other family members were sitting inside the house and a light was burning. After breaking open the door A-4 to A-9 rushed into his house while the remaining persons of the mob were standing outside. A-6 Kadarbhai had steel pipe in his hands, A-9, Yakubbhai had a knife with him, A-8, Isaq Mansuri had a kerosene tin in his hands. A-6 rushed towards Bharati, P.W.6. At that time Nishita, who was pregnant, was sitting with her daughter Komal in her lap. A-5 Sabaskhan and A-7 Iqbal Hussain caught hold of her by her hairs and did not allow her to stand up. A-8 brought the kerosene tin and sprinkled the same on Nishita and Komal. In the meanwhile A-9 stab
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