‘Motive to gain compensation’: Gujarat High Court acquits three men in post-Godhra rioting case in Anand district

The order pronounced by Justice Gita Gopi on Monday observed that the police had failed to conduct a Test Identification Parade (TIP) and the dock identification of the accused “would become highly doubtful”, especially since none of the accused has been named in the FIR. The court observed that in his deposition, prime prosecution witness Irfan Vohra had not stated about the “role of all the individual accused whom he had seen in the crowd of 100-200 people”.

While four of the nine persons who were tried by the Anand Fast Track Court were convicted to five years of rigorous imprisonment and other concurrent sentences – ranging from one-month rigorous to one-month simple imprisonment in offences of unlawful assembly, armed with deadly weapons, rioting and arson – one of the criminal appeals was abated as the accused, Alpesh Navinchndra Patel, died in May 2009.

While five accused were acquitted with the trial court giving them “benefit of doubt”, the four accused were found guilty.

The court said in its order, “The learned Trial Court Judge had erred in the appreciation of the evidence. Conviction is not based on reliable and corroborative evidence. The identification of the accused has not been proved during the trial. The present appellants whether (they) were the member of the unlawful assembly was not proved, and that they had common object of creating arson had not been proved, and any act of the appellants accused in prosecution of the common object, of setting things on fire and damaging the private and public property had not been proved during the trial. The appeals are allowed. The judgment of conviction and order of sentence… is quashed and set aside.”

The court said that since it had been “more than 19 years”, it would “not be in the interest of the accused to remit or remand the matter to the trial court from the stage of recording the supplementary statement of the concerned accused”. The court order stated, “Failure to put material circumstances to the accused amounts to serious irregularity, which may vitiate the trial if the irregularity has prejudiced the accused…”

The prosecution case was that the four accused, along with five others, had “assembled for the purpose of prosecution of common object, armed with the instruments for setting fire, and, with deadly weapons, formed unlawful assembly, and the members, using force, committed riots… set the complainant’s and other witnesses’ shop on fire… broke the shops of the complainant and other witnesses and caused damage by committing theft of goods and materials from the shop.”

The court also considered the submissions of the advocate for the petitioners, which stated that while Anand Town Police station had seen a suo motu complaint on March 2, 2002, the alleged complainant only recorded his statement before the police on March 17 that year. The court order stated, “In the instant case (the prosecution witness) sat tight, and only on March 17, 2002, they (are) said to have gone to the police. The police at the place of incident was the one engaged in bandobast, but Anand is a small place, where the Police Station would be at a reasonable distance. Till March 17, 2002, the witnesses did not disclose the name… or having witnessed the incident.”
It further said, “The evidence of PW3 (Vohra) as eyewitness is not corroborated by any other witnesses examined, much less by (the witness) who had accompanied him. So no reliance can be placed on the uncorroborated evidence of (Vohra) who even had failed to identify the accused in the Court.”

The court said that the conviction of the accused on the basis of the deposition (Vohra) by the trial court is “not safe without corroboration”.

The HC order stated, “The witness-PW3 (Vohra) has gone to Police Station only on March 17, 2002. He has the motive to gain compensation for his shop. Further the incident by the mob is the aftermath of Godhra incident and when a mob of 100-150 persons were involved, without corroboration and the specific evidence of individual acts of each appellant-accused no conviction can sustain.”

The court observed that even the identification of the accused by their names does not match the mononyms given by the complainant, nor could he state which of the person was causing the destruction. “When more than one accused is involved in a crime, the witness must identify them specifically… The complainant was in the business of lubricating oil. There is no investigation in this respect, if the oil was looted by the accused, then the actual connection to the crime of the accused could have been proved…” the court said.

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