Gujarat High Court
Kirpalsingh Jungbahadursingh ... vs State Of Gujarat & on 5 July, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
KIRPALSINGH JUNGBAHADURSINGH CHHABADA....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/7249/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 7249 of 2013 ================================================================ KIRPALSINGH JUNGBAHADURSINGH CHHABADA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR. BHARGAV N. BHATT, ADVOCATE for the Applicant(s) No. 1 MR PG DESAI, SPECIAL PP, WITH MR AY KOGJE for the Respondent(s) No.2 MR GAURANG VYAS for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 05/07/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Applicant, original accused No.62, seeks suspension of sentence and to release him on bail pending his appeal against conviction. He has been convicted by the learned Special Judge for various offences such as, section 143, 144, 147, 148, 153A, 326, 307 and 302 read with section 149 of the Indian Penal Code. He has been sentenced to rigourous imprisonment for various terms ranging from six months to ten years for all offences other than section 302 of the Indian Penal Code and for offence under section 302 of the Indian Penal Code, he has been sentenced to imprisonment for life.
He along with several other accused were jointly tried by the learned Sessions Judge in connection with one of the post-Godhra riot cases. In an aftermath of an unfortunate incident of burning of Sabarmati Express at Godhra in February 2002, where large number of people were burnt alive, widespread riots took place in several parts of the State of Gujarat including in the city of Ahmedabad. One such unfortunate incident of rioting took place at Naroda-Patiya Gam in the city of Ahmedabad where on 28th February 2002, large mob committed arsoning, looting and killing. In a day long incidents, 96 persons belonging to a particular community were killed and 125 were injured. Several complaints with respect to these offences were registered with the nearby police station. Investigation was carried out and statements of witnesses were recorded. The case of Naroda-Patia and several other riot related cases received the attention of the Supreme Court in a petition filed by the National Human Rights Commission ( NHRC for short). Nine cases involving multiple murders were segregated. After initially staying the investigation/trial in such cases, the Supreme Court passed order in the year 2008 which has been reported in the case of National Human Rights Commission v. State of Gujarat, (2009) 6 SCC 342. The Supreme Court directed the State Government to issue a notification constituting a Special Investigation Team ( SIT for short) comprising of a retired Director of CBI and other senior police officers. The State Government had indicated no objection if further investigation was done by such a team. The Government was directed to provide necessary infrastructure and resources for effective working of SIT. The SIT was to report directly to the Supreme Court and furnish before the Court in a sealed cover the report after completion of the inquiry/investigation. It was directed that SIT shall conduct inquiry/investigation including further investigation in 9 different cases, which included the case of Naroda-Patiya.
A further detailed order was passed by the Supreme Court in the case of NHRC v. State of Gujarat, (2009) 6 SCC 767. For ensuring a sense of confidence in the minds of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly, the Court issued several directions. The Chief Justice of the High Court was also requested to designate special judges in each district to take up such cases on day to day basis. Some of the observations of the Supreme Court may be noted:
40.
We have considered the submissions made by Mr. Harish N. Salve, learned Amicus Curiae, Mr. Mukul Rohtagi, learned counsel for the State, Ms. Indira Jaisingh and other learned counsel. The following directions are given presently :
(i)Supplementary charge-sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought.
(ii)the conduct of the trials has to be resumed on a day-to-day basis-keeping in view the fact that the incidents are of January, 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated.
(iii) the SIT has suggested that the six "Fast Track Courts" be designated by the High Court to conduct trial, on day-to-day basis, in the five districts as follows :
i) Ahmedabad (Naroda Patia, Naroda Gam)
ii) Ahmedabad (Gulbarg).
iii) Mehsana (for two cases).
iv) Saabarkantha opened (British National case)
v) Anand
vi) Godhra Train Case (at Sabarmati Jail, Ahmedabad).
(iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High, Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such "fast track courts", and has also suggested that this may be left to Hon'ble the Chief Justice of the High Court.
(v) Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such Public Prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public Prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should, and the Chairman of the SIT is satisfied that the situation calls for a change of the Public Prosecutor or the appointment of an additional Public Prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by the SIT.
(vi)If necessary and so considered appropriate SIT may nominate officers of SIT to assist the Public Prosecutor in the course of the trial.Such officer shall act as the communication link between the SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor.
(vii) The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this court in regard to the smooth and satisfactory progress of the trials.
(viii) The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, the SIT can request the Public Prosecutor to seek cancellation of the bails already granted.
(ix-i)For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court:
In case of witnesses following steps shall be taken :
(a) Ensuring safe passage for the witnesses to and from the court precincts.
(b) Providing security to the witnesses in their place of residence wherever considered necessary, and Relocation of witnesses to another State wherever such a step is necessary.
(ix-ii) As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
(ix-iii) In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities.
(ix-iv) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the re-location of such witness : The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to re-locate the witnesses.
(ix-v) All the aforesaid directions are to be considered by SIT by looking into the threat perception if any.
(x) SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would also discharge such functions as have been cast upon them by the present order.
(xi) If there are any matters on which directions are considered necessary (including by way of change of Public Prosecutors or witness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this Court for appropriate directions.
(xii) It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area.
Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers.
It was in the background of the above orders of the Supreme Court that the present trial came to be conducted by the Special Judge appointed by the High Court. Voluminous material was presented before the court. More than 300 witnesses were examined. The learned Judge rendered a detailed judgment. Present applicant was accused No.62 who as mentioned above, has been convicted and sentenced to life term.
Learned counsel Shri Bhargav Bhatt for the applicant has painstakingly taken us through the relevant portion of the evidence as well as the discussion and conclusions of the learned Judge in connection with the present applicant. He has mainly urged that the applicant was involved by only two witnesses (remaining isolated witnesses who had tried to rope in the applicant was not even believed by the learned Judge). These two witnesses have also given contradictory versions regarding the presence and role of the applicant. They made major improvements in the statements before the Investigating Agencies. Involvement of the applicant was revealed for the first time in the year 2008. The learned Judge has come to the conclusions which are de hors the evidence on record. The applicant has already been in jail as an under-trial prisoner and as a convict for nearly four years. He contended that when there is every possibility of the conviction of the applicant being reversed, it would be travesty of justice if his bail application is not granted. In his submission, the evidence on record is insufficient to arrive at a conclusion of guilt against the applicant. Particularly when there is no possibility of hearing the appeal in near future, he contended that the applicant should be released on bail. Counsel contended that even the learned Judge has not given any credence to the deposition of PW 157 implicating the applicant in the incident of later part of the day by the mob coming at Uday Gas Agency In support of his contentions, counsel relied on the following decisions :
In the case of Kashmira Singh v. State of Punjab, AIR 1977 SC 2147, wherein the Supreme Court considered the bail plea of the convict. He was convicted by the Sessions Court for offence under section 323 of the Indian Penal Code and sentenced to rigourous imprisonment for six months. Though charged, he was acquitted of the offence under section 302 of the Indian Penal Code. The High Court reversed the judgment of acquittal and convicted the applicant for offence under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. In this context, while considering the bail plea, it was observed as under :
Every practice of the Court must find its ultimate justification in the interest of justice. The practice not be released on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rational of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six for an offence which is ultimately found not to have been committed by him.
In the same context, counsel also relied on a decision in the case of Babu Singh v. State of UP, AIR 1978 SC 527 wherein referring to the decision in the case of Kashmira Singh (supra), it was observed as under:
16.
Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of crimininological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
Counsel also relied on a decision of the Supreme Court in the case of Shah Kantilal Bheemchand v. State of Gujarat, 2002 (1) GLH 315 wherein finding that there was no scope for the appeal to be heard by the High Court in near future and further finding that from the judgment of conviction of the Trial Court, there was no particular overt act attributed to the appellant, he was released on bail pending appeal.
Decision in the case of Tahsildar Singh v. State of UP, AIR 1959 SC 1012, was cited for the purpose that material improvements by witness before the Court would tantamount to contradiction. The counsel drew our attention to the proposition laid down by the Supreme Court in para 26 of the judgment, relevant portion for our purpose, reads as under:
26.
From the foregoing discussion the following propositions emerge:
xxx xxx though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement.
Decision in the case of Ranjit Singh v. State of Madhya Pradesh, AIR 2011 SCC 255, was cited to contend that in case of involvement in an unlawful assembly, the courts would normally look for corroboration from more than one witness. In particular, our attention was drawn to para 17 to 22 in this respect. In para 22, the Apex Court observed as under:
22. Thus, from the above, the law on the issue remains that in a case involving an unlawful assembly with a very large number of of persons, there is no rule of law that states that there cannot be any conviction on the testimony of a sole eye-witness, unless that the court is of the view that the testimony of such sole eye-witness is not reliable.
Though generally it is a rule of prudence followed by the courts that a conviction may not be sustained if it is not supported by two or more witnesses who give a consistent account of the incident in a fit case the court may believe a reliable sole eye-witness if in his testimony he makes specific reference to the identity of the individual and his specific overt acts in the incident. The rule of requirement of more than one witness applies only in a case where a witness deposes in a general and vague manner, or in the case of a riot.
Counsel also relied on a decision in the case of Musakhan v. State of Maharashtra, AIR 1976 SC 2566 wherein in the context of shared common object of the unlawful assembly, it was observed that it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages.
On the other hand, learned counsel Shri P.G.Desai appearing for the respondent strongly opposed the bail petition contending that several persons were done to death. Large scale arson, looting and violence was committed during the day long rioting. The applicant has been convicted for serious offences. There was sufficient reliable evidence of his involvement, He contended that the witnesses had identified the applicant before the Court as PA to accused No.37, MLA of the area. He drew our attention to the discussion in the judgment of the learned Judge in addition to the evidence pertinent to the applicant to contend that in the face of the involvement of the applicant in such serious offences, bail pending appeal should not be granted.
The counsel submitted that it was under extra ordinary circumstances that the Supreme Court was persuaded to hand over the investigation in the present case including 8 other sensitive riot cases to SIT. The reference to the orders of the Supreme Court was made by the counsel particularly to counter the contention of the applicant s counsel that for nearly six years, none of the witnesses had implicated the applicant and it was for the first time in the year 2008 before SIT that any reference to the presence of the applicant was made.
In support of his contentions, Shri Desai relied on the following decisions:
In the case of H.B.Ramavat v. State, 2008 (3) GLR 2345 wherein a Division Bench of this Court observed as under:
9.
It is the settled law that for suspending execution of sentences, the court will look to the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of offence and the desirability of releasing the accused on bail. It is not necessary at all for the court to reappreciate the evidence at this stage, but prima facie, case appearing from the record. This exercise is required to be taken particularly with reference to the the contentions raised by learned counsels for the parties. Convict may point of the glaring infirmities in the prosecution case which would be touching to the vital aspect and the very substratum of the case of the prosecution. Considering, prima facie, such infirmities to be resulting in acquittal, the accused in such appeals, may be admitted to bail, but, however, if the appellate court is not able to take such a view, the course which appears to be open is to reject the plea of bail after rejecting the request for suspension of sentence.
(ii) In the case of Sajal Sureshkumar Jain v. State of Gujarat, 2010 Cri. L.J. 213 wherein a Division Bench of this Court, in the context of suspending sentence pending appeal and releasing the convict on bail, observed as under:
12.
Before we proceed to consider the submission, the case law for scope of Section 389 of Cr.P.C., for exercise of the power for suspension of sentence may be relevant. The law on the said aspect, as such, is well settled, but useful reference can be made to the recent decision of the Apex Court in the case of Sidharth Vashisht alias Manu Sharma v. State (NCT of Delhi), reported in 2008(7) SCALE, 321. It has been held by the Apex Court in the said decision that once a person has been convicted, normally an Appellate Court will proceed on the basis that such person is guilty. The mere fact that during the period of trial, the accused was on bail and there is no misuse of liberty, does not, per se, warrant suspension of execution of sentence and grant of bail. Initial presumption of innocence in favour of the accused and, therefore, is no more available to the applicant. When person is convicted, he cannot be said to be innocent person until the final decision is recorded by the superior Court in his favour. It was also observed by the Apex Court in the said decision and more particularly at para 32 that even after considering that the applicant such person is guilty, it is open to the Appellate Court to suspend the sentence in a given case by recording the reasons. But it is well settled, as observed in Vijay Kumar v. Narendra and Ramji Prasad v. Rattan Kumar, reported in (2002) 9 SCC, 364 that ... The Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.... . (Emphasis supplied) It has also been observed in some of the cases that in normal practice in such cases, not to suspend sentence and it is only in exceptional cases benefits of suspension can be granted.
It may also be recorded that the Apex Court, in the case of State of Punjab v. Deepak Mattu, reported in (2007) 11 SCC, 319, has held that a long time may be taken to decide the appeal or that there are good points to argue would not be sufficient grounds to suspend the sentence for exercise of the power by the High Court under Section 389 of Cr.P.C., more particularly when the offence is a serious offence or the gravity of the offence is very high.
14. In view of the aforesaid legal position, the present applications are required to be examined. The first part that the accused were on bail pending the trial is not, in any case, available to the present applicants, since it is an admitted position that pending the trial the accused were not on bail, but were in jail as undertrial prisoners. Further, as observed by the Apex Court in the above referred decision, once the conviction has taken place,the presumption of innocence is not available to the accused, but the Court would presume the accused to be guilty for the offence, unless the Court, for the valid reasons, finds otherwise, at the time of suspension of the sentence. The valid reasons broadly are classified as under:
(a) The nature of accusation made against the accused.
(b) The manner in which the crime is alleged to have been committed.
(c) Gravity of offence.
(d) Desirability of releasing the accused on bail after he has been convicted for committing serious offence.
Further while considering the aforesaid relevant factors or valid circumstances, the Court has to keep in mind that the normal practice in such cases is not to suspend the sentence and it is only in exceptional cases the benefit of suspension of sentence can be granted.
(iii) In the case of Siddhartha Vashisht v. State (NCT of Delhi), AIR 2008 SC 2889, wherein the Apex Court in he context of bail pending appeal against conviction observed as under:
30. The other consideration, however is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to be ;an innocent person until the final decision is recorded by the superior Court in his favour.
Mr.Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha, v. State of Bihar, (2000) 6 SCC 461; Vinay Kumar v. Narendra & Ors. (2002) 9 SCC 363 : JT 2002 Supp (1) SC 60; Ramji Prasad v. Rattan Kumar Jaiswal & Nr. (2002) 9 SCC 366 : JT 200 (7) SC 477; State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6; Kishori Lal v. Rupa & Ors. (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 Scale 414 : JT 2008(4) SC 461.
In the above cases, it has been observed that once a person has been convicted, normally, an appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vinay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under S.302, I.P.C., the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.
xxx The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.
Reliance was also placed on the decision of the Apex Court in the case of Ramachandran v. State of Kerala, AIR 2011 SC 3581, wherein in the context of involvement of the applicant with the aid of section 149 of the Indian Penal Code, the Apex Court observed as under:
12.
Even if the offence committed is not in direct prosecution of the common object of the assembly, in may yet fall under second part of section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression know does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowlege that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed land all the members of the lawful assembly must be aware of that likelihood and would be guilty under the second part of section 149 IPC.
There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated. (See: Mizaji & Anr. v. State of U.P. AIR 1959 SC 572; and Gangadhar Bahera & Ors. v. State of Orissa, AIR 2002 SC 3633).
14. However, once it is established that the lawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. (See: Dana Kishan v. State of Haryana, (2010) 5 SCC 81 :
(AIR 2010 SC 2147); Sikandar Singh v. State of Bihar, (2010) 7 SCC 477: (AIR 2010 SC 3580, and Debashis Daw v. State of W.B., (2010) 9 SCC 111 : (AIR 2010 SC 3633).
Having thus heard the learned counsel for the parties and having perused the relevant material on record, we remind ourselves that in the present case we are dealing with a petition for suspension of sentence and bail. It is undoubtedly true that the High Court has power to suspend the sentence or in a given case even conviction, and release the convict on bail pending appeal even in cases where the sentence is for life. However, once an accused has been held guilty by a court, the normal presumption of innocence till proved guilty is no longer available. It is equally true that possibility of not hearing the conviction appeal in near foreseeable future is one of the factors which weighs with the court while deciding a bail petition of a convict. This, however, cannot be the sole consideration and several factors including the nature of incident, seriousness of the charges, the sentence awarded, the involvement of the convict, as also the nature of evidence against him would be some of the relevant factors which would guide the court in deciding whether to accept any such request for suspension of sentence and grant of bail pending appeal. It is in this context we have perused the material on record. Our observations in this regard, therefore, would be prima facie in nature and without prejudice to either side in the pending appeal. We have sifted through the evidence and also the conclusions of the learned Judge in this context.
It would appear that PW-157, Mohmadsafi Allabaksh Mansuri, in his deposition before the Court had stated that on 28th February 2002, there was a bandh call. He had kept his shop closed. At 9.30 in the morning when he was at his home, he had heard that a mob was ransacking the shops and setting houses on fire near Nurani Masjid. He had thereupon come out of his house. He found that a large mob had gathered near Nurani Masjid. Another mob was advancing from Krishnanagar and yet another was coming from Natraj Hotel. He saw that members of the mob was carrying weapons such as, sword, iron rods and pipes, etc. He stated that the applicant was also part of the mob. Behind the police Kirpalsingh (the present applicant) was there as part of the mob at the gate of workshop opposite to Nurani Masjid. He had further stated that stone pelting had started by the mob at which time the police had fired tear-gas shells and thereafter also started indiscriminately firing on the people of Muslim community. This witness had thereafter given further account of the violence and rioting involving the present applicant. This witness had also stated about the happenings of the later part of the day also involving the present applicant.
He described the efforts made by him and other members of the community to save themselves including trying to enter the SRP quarters for protection and safety. He stated that it was around 4.30 in the evening when within some time a mob came from Uday Gas Agency. The members of the mob were carrying weapons. In such mob, there were, Bipin of Autostores, Guddu Chhara, Kirpalsingh (present applicant) and Suresh Chhara. He stated that some of these persons gathered on the stairs of Tinia Marathi and started pelting stores from the terrace on him and other persons.
He stated that some time in the year 2008 he learnt that on SIT being constituted, it will undertake an independent investigation. He had, therefore, made an application and the SIT had recorded his statement in which he had disclosed the name of Kirpalsingh. He had identified the convict before the court.
In the cross-examination, this witness was grilled about non-disclosure of various details in his original statements before the police recorded on 13.4.02 and 25.3.02. He was also cross-examined in connection with his statements before SIT and in particular one recorded on 14.9.08 regarding non-disclosure of the role of certain accused including the present applicant. He explained that when his statements were recorded by the police, he was at Shahalam Camp. He was under shock due to the incidents of Naroda-Patiya and his mental condition was also not good. He had, therefore, given the names of those persons he could remember.
PW 232 (Ex.1662), Siddiq Allabaksh Mansuri, is the another witness who had implicated the petitioner before the Court. He had stated that on the date of the incident, he was at his home. At about 8.30 in the morning, he heard that crowd have gathered on the road. He had thereupon gone near Natraj Hotel where a mob of about 5 to 10 thousand people had gathered. When he was there, in a Muruti car Mayaban (local MLA), had come. She came along with her PA/Assistant. They had got down together from the car. Upon seeing them, the crowd had shouted slogan of Jay Shree Ram . Mayaben had given an inflammatory speech and urged the crowd to kill the members of Muslim community.
The witness further stated that at about 11.00 in the morning, Mayaben had come in a white Maruti car near ST workshop. Her car was followed by a treks-jeep. MLA had got down from the Maruti car. She signaled the mob of people standing at Natraj Hotel and called them at the ST workshop. About 100 people gathered there in which PA of Mayaben was also there. Mayaben had some discussion with them, after which the PA had given instructions by gestures. At that time, PA of Mayaben had taken out weapon from the treks-jeep such as, sword, spear, trishul, revolver and were given to the leaders of the mob by PA of Mayaben upon her instructions. After the mob left, her PA was still part of the mob which had attacked Nurani Masjid. The mob had lobbed gas cylinders and caused damage. Members of the mob had thereafter set on fire the shops near Nurani Masjid. The mob had thereafter entered the road leading to Hussainnagar and set on fire the houses at Javannagar and Hussainnagar and also burnt men, women and children. This witness also identified Mayaben, A-37 and the present applicant, PA of Mayaben.
He was also subjected to detailed cross-examination in particular with respect to the so called incident of the applicant distributing weapons in presence of A-37.
The Investigating Officer was also questioned by the defence with respect to the depositions of these witnesses, in particular with respect to PW-236, Siddiq Mansuri. He agreed that regarding the presence of PA of Mayaben amongst 100 odd leaders of the crowd, there was no mention of the PA in the statement of the witness recorded by the Investigation Officer. He also agreed that in the statements, there was no mention that the PA had distributed weapons to the leaders. He stated that the witness had given statement that Mayaben had come in a white Maruti car with her husband.
Such evidence was assessed by the learned Judge in the impugned judgment. The learned Judge had made detailed reference to the examination-in-chief as well as cross-examination of these witnesses and also made reference to relevant portion of the deposition of the Investigating Officer. It is not necessary to record such detailed discussion. Suffice, however, to record her conclusion with respect to accused No.62, i.e. present applicant which reads as under:
33.
A-62.
The prosecution has examined about 4 witnesses who proved involvement of this accused. Three of them have been found dependable, by even not treating the police witnesses as solely reliable to conclude the guilt of the accused.
This accused is residing in the S.R.P. Quarters which is very close-by to the site of the offence. Hew has been implciated in the crime by PW-157 and PW-162 who are found to be reliable witnesses. This accused was also involved by PW-52 but then, the Court has only relied upon the above referred witnesses. This accused has taken a defence contending that he has no connection with A-37 and that he was never her P.A. But, as emerges from the oral evidence of the witnesses A-62 was one of the leading persons of the area and was a political worker.
If the documents produced by A-44 is seen, then it becomes clear that this accused was also a member of Ekta Samiti of the police station and that according to the documents produced by A-44 he can be a member of the said Peace Committee only if he is closed to A-37 or the Councilor of the area. This supports the case of the prosecution of the accused being close aid of A-37 .
The learned Judge has discussed the evidence at length before coming to the above conclusions. But, for the purpose of this order, it is not necessary to reproduce the entire discussion. Suffice it to note, we have reproduced only the concluding portion and not the entire appreciation of the evidence by the court on the involvement of this accused.
17. As correctly urged before us by learned counsel Shri Desai, at this stage of deciding whether to suspend the sentence and release the accused on bail, we would not be justified in reappreciating the entire evidence on record with a focus to conclude finally whether the conviction should be upheld or reversed. At this stage, we have to bear in mind the nature of evidence, consideration of such evidence by the learned Judge for the purpose of prima facie satisfaction of the validity of the conclusions. Such factors would be in addition to the nature of the incident, the involvement of the accused, the seriousness of the offence, the sentence awarded and other relevant factors such as possibility of securing presence of the accused at the time of final hearing, if released on bail.
18. In our opinion, this is not a fit case where the sentence is required to be suspended releasing the convict on bail pending appeal. We have noted for our prima facie sanctification the nature of evidence on record and the conclusion of the learned Judge at the end of assessment of such evidence. In addition to such factors, as already noted, the entire incident, the seriousness of the same, the nature of conviction of the accused with the aid of section 149 of the Indian Penal Code with several offences including one punishable under section 302 of the Indian Penal Code would be sufficient to reject his bail plea. Contention that the applicant was implicated for the first time 6 years after the incident must be viewed in the background of the scale of the tragedy and the extraordinary circumstances under which the Supreme Court was persuaded to form SIT and order further investigations in these cases by the SIT.
19. In the result, this petition is dismissed.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) (vjn) Page 23 of 23