‘At the root lies an anonymous fax’: Gujarat HC upholds acquittals in killing of British nationals in 2002 riots

The HC also considered that no Test Identification Parade (TIP) of the accused had been carried out in the case in which the accused had “not been described” even in the FIR filed by the petitioner in 2002.

The order of the division bench of Justice AY Kogje and Justice Samir J Dave, dated March 6, which was uploaded on March 28, analyses several previous court verdicts in cases connected to 2002 Gujarat riots as well as apex court judgements on the scope of interference in acquittal appeals while also delving into the testimonies of 81 witnesses in the case.

The incident dates back to February 28, 2002, when Imran along with his uncles — Saeed Dawood and Shakeel Dawood — and co-villager Mohammad Aswat, all British nationals, were returning from a trip to Agra and Jaipur to their native Lajpur village of Navsari when they were allegedly attacked by a mob on the highway in Vadvasa village near Prantij in Sabarkantha.

According to the case, the victims were travelling in an SUV driven by Yusuf Suleman Peragar who was killed on the spot while the petitioner and Aswat were injured even as the mob set the vehicle on fire. Aswat was later declared dead at a hospital. Saeed and Shakeel, who ran for their lives into a nearby field, “were not found”.

The HC considered the sessions court verdict acquitting the six accused — Mitha Patel, Chandu alias Prahlad Patel, Ramesh Patel, Manoj Patel, Rajesh Patel and Kala Patel — citing that no TIP had been held in the case as the petitioner had deposed before the court over a video call and also had a “Dock Identification via video”. At the time of identifying the accused, the petitioner had stated that the accused presented before him “somewhat appeared” to be like the accused in the mob as the identification was held for the first time six years after the incident, the HC observed.

The court order stated, “The Sessions Court also while dealing with this issue has taken into consideration the evidence of the witness (Imran) as also the FIR and the evidence of the Investigating Officer and accepted the argument of the defence that the description of the accused given by the witness denying investigation was only about the height, clothes and approximate age. Even in the FIR itself, no description of the accused was given. Therefore, the Sessions Court has rightly concluded that such an (Dock) identification cannot be the sole ground to base conviction…”

The court order also considered the defence argument that the petitioner had stated in his cross-examination during the trial about “difficulty in identifying the accused due to the passage of time”. Challenging the defence argument, the petitioner’s counsel had stated that the “trial court had erred in drawing a negative inference” against the petitioner that he did not “want to take part in the Test Identification Parade”. The request for the petitioner to remain present for the identification parade in May 2002 was “admittedly sent to the British Deputy High Commission, Mumbai” and “there is nothing on record to show that the said request was sent to the Complainant and that he had refused to participate in the TIP”, said the counsel. The petitioner also argued that the police, despite having two other eyewitnesses, apart from Imran, did not conduct the TIP.

Naming of the accused based on an anonymous letter fax received by the British Deputy High Commissioner in Mumbai remained a contentious issue through the trial, the HC observed.

As per the prosecution, on March 24, 2002, the British Deputy High Commissioner, Howard Parkinson, received an anonymous fax, which named 10 persons as suspects in the killing of the petitioner’s uncles. The court order stated that the British Deputy High Commissioner forwarded the anonymous fax to the Director General of Police of Gujarat, requesting him to direct the Prantij police to investigate further into the killings.

The state government constituted a Special Investigation Team (SIT) under former CBI director RK Raghavan, in April 2008, after the Supreme Court directed the Gujarat government to do so while hearing a 2003 petition of the National Human Rights Commission. In 2009, the sessions court framed the charges against the six accused under Indian Penal Code sections 302 (murder), [153(A)] (Promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of harmony), 323(voluntarily causing hurt), 143 (punishment for unlawful assembly), 147 (punishment for rioting), 148 (rioting, armed with deadly weapon) among others.

The order stated, “The issue, therefore, arises that how at all the names of the accused surfaced during the course of investigation and on what basis the respondents were subjected to investigation and trial. The root lies in the anonymous fax letter which was addressed to British High Commission, which narrated the names of the respondents as accused persons…”

It further said, “The initiation of investigation is also based on an anonymous fax message and not on the basis of the evidence of any independent eyewitness. For the foregoing reasons, the Court does not find any reason to interfere with the impugned judgment and order of acquittal passed by the Principal District and Sessions Judge (Specially Designated Court), Sabarkantha at Himmatnagar… The appeal therefore deserves to be and is hereby dismissed.”

The prosecution case was that Bilal Dawood, brother of Saeed, visited the site of the incident later with the then British Deputy High Commissioner, Ian Reakes, and “collected fragments of bone” from the premises of a factory located approximately 400 metres away from the burnt vehicle.

According to the prosecution case, a panchnama was carried out and the police inspector then “handed over the bone fragments to the British Deputy High Commissioner, who then arranged for it to be sent to the British Deputy High Commission, Mumbai, and thereafter couriered to the Forensic Laboratory in Hyderabad”. Later, as per “instruction by the Hyderabad laboratory”, the British Deputy High Commissioner arranged for a local doctor to take blood samples from Bilal and other members of Saeed and Shakeel’s family to assist in the identification.

The defence counsel, Senior Advocate RC Jani, had raised objection to the process “unknown to law” as it was done by the official of British High Commission and “cannot be treated as evidence collected during the course of investigation to be treated as legally admissible evidence.”