2002 Post-Godhra Riots: Gujarat High Court Upholds Acquittal Of 5 In Vadodara Mob Killing, Says Rioters Were Not Identified

The Gujarat High Court has upheld the acquittal of five persons in a post 2002 Godhra train burning-riots case, who were accused of throwing the deceased alive into a fire, observing that the witnesses could not identify that the accused were the rioters who had committed the alleged act. The court noted that witnesses had categorically stated that they did not know the identity of the persons who committed the offence as the incident was carried out by a large mob of approx 500 people and also the eyewitness's deposition was silent on any "specific overt act or participation of the accused". A division bench of Justice Nirzar S Desai and Justice DN Ray in its order noted that the doctor who had examined bones of the alleged victim had stated that the bones examined by him cannot be conclusively linked to the deceased. The bench noted that this evidence was not only duly considered but also elaborately discussed by the Sessions Judge, and thus the findings regarding medical evidence cannot be termed erroneous. It also said that the evidence of the original complainant, indicates that she had expressed complete ignorance regarding the "identity of the rioters". She had also deposed that the complaint "was merely shown to her and that it bears her signature". Further, the Sessions Court had considered the evidence of another witness who had categorically stated that the incident occurred during the night in darkness and, therefore, he was "not in a position to identify any of the persons" and that he did not personally know any of the persons involved. "All these witnesses have deposed on similar lines and have categorically stated that they did not know the identity of the persons who committed the offence, as the incident was carried out by a large mob comprising approximately 400 to 500 persons. The evidence of the eye-witness, who is the wife of the deceased has also been considered by the learned Sessions Judge. In her deposition, she had identified certain accused persons, namely, Raju Bharwad, Prakash Sharma, Karsan Driver, Tino Thakkar, and Fillip, and had also identified accused Nos. 1, 2, 3 and 5. However, such identification would only indicate the presence of the said persons in the mob. Even in her cross-examination, the witness had not stated anything beyond the mere presence of the accused persons at the place of occurrence. Her deposition is conspicuously silent with regard to any specific overt act or participation of the accused in the commission of the offence in question," the court said. The State had challenged a 2003 sessions court order acquitting respondents for offences under IPC Sections 143(unlawful assembly), 147(rioting), 436(mischief by fire or explosive substance with intent to destroy a house etc), 302 (murder) and 108(abettor).Prosecution alleged that in the aftermath of the Godhra train burning on 27.02.2002, led to widespread communal disturbances across Gujarat, and a Gujarat Bandh was observed on 28.02.2002.It was alleged that the five accused persons, along with approximately 200 others formed an unlawful assembly with the common object of committing the murder of the deceased, Samsuddin @ Kasamkhan, and to set ablaze Muslim residential colonies and shops situated opposite Khodiarnagar in the city of Vadodara.On the night of 28.02.2002, the unlawful assembly allegedly commenced rioting. The prosecution further alleged that the accused and other members of the unlawful assembly forcibly entered the house of the deceased, Samsuddin @ Kasamkhan, removed household articles from the shop belonging to the deceased and his brother and set the same on fire. It is further alleged that the deceased was apprehended by the mob, assaulted, and ultimately thrown alive into the fire, resulting in his death. The accused thus alleged to have committed the murder of the deceased and caused extensive damage to the household articles and the goods kept in the shops of the deceased and his brother.The State argued that the trial court had committed an error in holding that prosecution has failed to prove its case beyond reasonable doubt. It was contended that considering the nature of the incident involving extensive burning of shops and household articles, it was quite natural that the remains of the deceased may not have been immediately traceable at the spot on the following day. The trial court had thus erred in drawing an adverse inference against the prosecution on this count.It was argued that the trial court could not override the testimony of eyewitness who deposed that accused persons threw the deceased into the fire, thereby causing his death and committing an offence punishable under Section 302.The court dismissed the appeal. Case title: STATE OF GUJARAT v/s FILLIPBHAI MAGALBHAI MISTRY & ORSR/CRIMINAL APPEAL NO. 697 of 2003Click Here To Read/Download Order

2002 Post-Godhra Riots: Gujarat High Court Upholds Acquittal Of 5 In Vadodara Mob Killing, Says Rioters Were Not Identified

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