K. JAYACHANDRA REDDY, J. - (1.) 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 stabbed P.W. 5 and his intestines came out. A-8 lit a match stick and threw it on the clothes of Nishita and there was a fire. P.Ws. 5 and 6 tried to go out but A-9 stabbed P.W. 6 also on her left hand. A-6 gave a blow on the head of P.W. 5 with a steel pipe. During this time Nainisha, elder daughter of P.W. 5 escaped from the house. THEreafter the accused who came into the house and others standing outside started running towards Bhaiswada. THE persons who entered the house threw away the cycle belonging to Nainisha and other household articles and they were also burnt. P.W. 5 managed to come outside. THE Police arrived there. P.W. 5 came out of the house and saw P.W. 4 and other boys of the locality who took care of him. P.W. 5 was removed to the hospital in a painful condition and he was treated there. Nishita, his wife and Komal, his daughter were burnt alive and they died. During the course of the rioting, P.W. 4 also received injuries because of acid throwing. Prosecution witness 7 Melasingh, P.W. 8 Mukesh and P.W. 9 Dilipbhai were some of the persons who reached the spot and saw the household articles of P.W. 5 burning. THE Police Inspector Manilal Damor, P.W. 19 who reached the place of occurrence also received injuries by acid. THE Police Inspector Madansingh Rana, P.W. 15, who also reached the place of occurrence, chased some of the persons in-the crowd and he caught hold of A-1 to A-3. Nishita and Komal were taken to the hospital and were declared to be dead. Dr. Babulal Patidar, Prosecution witness 14 sent information to the police regarding the incident. THE officer in the said Police Station made an entry to this effect and handed over the investigation to Police Sub-Inspector Bhimjibhai Barai, P.W. 20 who reached the hospital. Before him P.W. 4 lodged his complaint at about 9.45 p.m. and the same was sent to the Police Station for registration of the crime. Meanwhile Police Inspector Shri Bhugukumar Pathak, P.W. 22 reached there and investigation was handed over to him and he started the investigation. He sent a yadi (request) to record the dying declaration of the injured. From the scene of occurrence he recovered one kerosene tin and one steel pipe under a panchnama. He came to know that Nishita and Komal died. He sent Police Sub-Inspector Narendrakumar Babulal Jani, P.W. 17 to hold inquest. Meanwhile the three arrested accused were produced and they were taken into custody and later sent to judicial custody. THEreafter P.W. 22 recorded the statements of the witnesses. Dr. Rakesh Tandon, P.W. 10 conducted the post-mortem on the bodies of the deceased Nishita and Komal and he found extensive burn injuries on them and opined that both of them died because of the burn injuries and that the injuries were sufficient in the ordinary course of nature to cause death. Dr. Virendra Thakkar, P.W. 12 examined some of other witnesses. Dr. Babulal Patidar, P.W. 14 examined Bharati, P.W. 6 on 7-4-90 at about 10.50 p.m. and he found a stab wound on the left forearm and he issued a medical certificate and admitted her as an indoor patient and she was discharged on 16-4-90. The same Doctor examined P.W. 5 on the same night who came with a requisition. The Doctor found stab wound over the right side of the abdomen and small intestines were perforated. It was felt that an operation was necessary and by applying general anesthesia P.W. 5 was operated for Laparotomy and he was discharged on 16-4-90. The Doctor opined that the injury was of a grievous nature. The same Doctor examined P.W. 4 also at 11.30 p.m. and found on him acid burns. The accused were arrested on various dates and at their instances some recoveries are said to have been effected. After completion of the investigation, the charge-sheet was laid against nine accused. The prosecution examined 22 witnesses. When examined under S. 313, Cr.P.C. the accused pleaded not guilty. They however gave an application to examine the Executive Magistrate, C.W. 1 who recorded the dying declaration of P.W. 5 in the hospital. The Executive Magistrate Shri Manarbhai Savailal Galiyara was examined as Court witness and he produced the copy of the dying declaration Ex. P. 166, the contents of which will be referred to later. Before the trial Court as well as before us the contentions advanced are more or less the same. It is submitted that P.Ws. 5 and 6 as well as other witnesses are all highly interested inasmuch as admittedly there have been such communal riots since 1985 and that these witnesses who belong to Hindu community were deadly inimical towards Muslims who were living in that area and that apart they had something to do with earlier cases having figured either as P.Ws. or as accused. This criticism is specifically directed against the evidence of P.W. 4 who gave the report and it is further contended that he, being a highly interested witness, has falsely implicated these accused and that non-examination of any independent witness belonging to the locality is fatal to the prosecution case. The next submission is that there were number of telephone messages about the incident constituting the F.I.R. in the case and as the investigation was already commenced, therefore the information given by P.W. 4 ought not to be treated as F. I. R. in the case as it is hit by S. 162, Cr.P.C.
(3.) THE next and most important submission, according to the learned counsel appearing for the appellants, is that the Executive Magistrate Manarbhai Savailal Galiyara examined as C.W. 1 recorded the dying declaration of P.W. 5 on 7-4-90 the day of occurrence and in the said statement no names have been mentioned and that the said statement was suppressed by the prosecution and the fact that P.W. 5 in his deposition denied any knowledge about such statement, makes his evidence highly suspicious and untrustworthy. Coming to the occurrence as such, it is submitted that the version that kerosene oil was sprinkled on the two deceased is belied by the fact that the panchas or doctors did not find any kerosene smell emanating from the dead bodies. Finally it is submitted that the investigation had been highly unfair and not objective and that in such a situation the evidence of the witnesses who are under the influence of the police cannot be given any credence. In this context it is submitted that at every step the investigation has been questionable and the deliberate delay and lapses in recording the statements of the alleged witnesses and in not getting the dying declaration recorded in time vitally affect the prosecution case. It is not in dispute that on the night of 7-4-90 communal riots took place in that area and that a crowd consisting of Muslims unlawfully went around and damaged the houses and properties belonging to some of the Hindus in that locality and also attacked .some of them. In this case we are mainly concerned with the occurrence that took place inside the house of P.W. 5. To prove that the deaths of the deceased Nishitaben and Komalben, wife and daughter of P.W. 5 respectively were homicidal the prosecution has examined Dr. Rakesh Tandon, P.W. 10 who conducted the post-mortem and his evidence establishes beyond all reasonable doubt that the deaths of these two deceased were due to shock as a result of burn injuries found on their persons. In the course of the rioting P.W. 5 and some others also received injuries. The evidence of Dr. Praveen Thakkar proves the injuries found on them and there cannot be any doubt that they received these injuries during the same rioting. Now the question is whether the evidence of these witnesses can be relied upon. The learned counsel in this context submitted that all these witnesses are interested And therefore they are likely to speak falsehood and it is not possible to separate truth from falsehood. It is needless to say that mere interestedness is not a ground to reject the evidence of the eye witnesses 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. First we shall briefly refer to the evidence given by these witnesses. The material witnesses are P.Ws. 4 to 9. P.W. 4 is the complainant in the case and is also injured. He lives in Moti Chhipwad. He knows P.W. 5 and his family members. He ,deposed that in Bhaiswada the residents mainly belong to Muslim community. He was serving in P.W.D. as Wireman. On 7-4-90 curfew was imposed in that area. Therefore he came home at about 2 p.m. His house is about 100 ft. away from the house of P.W. 5. On the day of occurrence at night after taking meal he went to the house of his brother Ashwanibhai Kalyanbhai Bhavsar at about 9 p.m. which is closer to the house of P.W. 5. He heard the shouts coming from Moti Chhipwad and also saw the stones being hurled upon their locality. There was no police at that time and the people were shouting for help. Then at about 10 or 10.30 p.m. a mob consisting of 10 to 15 Muslims persons came into that locality being armed with deadly weapons and sharp instruments shouting "Beat, Cut and Burn" and by raising such shouts they rushed towards the house of his brother. In that mob he saw all these- nine accused. Some of them were also having bottles of acid and one of them threw acid bottle as a result of which P.W. 4 received injuries. Just then the accused entered the house of P.W. 5 by breaking open the door and threw away the household articles and started burning them. He and others who were standing outside heard the shrieks of the members of the family of P.W. 5. They also saw smoke emanating and felt smell of kerosene. The persons who entered the house, came out and the mob ran away as soon as the police came and tried to chase them. It is in his evidence that after the arrival of the police, the residents of the locality collected and all of them went inside the house of P.W. 5 and found Nishita and Komal burnt and lying on the ground. They also found P.W. 5 injured on the right side of his abdomen and the wound was bleeding. They also found P.W. 6 Bharati having been injured. An Ambulance van came and P.W. 4 took the two injured deceased to the hospital where the Doctor pronounced Komal to be dead. Then the Police came and he gave a report to them which was signed by him. This witness is cross-examined at length. The first part of the cross-examination is about the location of the houses. Then the next part of the cross-examination is regarding the identification of the accused. He has clearly stated that he knew all the accused. One of the suggestion is that his evidence that he went to his brother's house which is near to P.W. 5's house is false and that he has introduced the same to make himself to be present at the scene of occurrence near P.W. 5's house which he denied. The presence of acid injuries on him also is assailed. But having regard to the medical evidence it has to be accepted that he received acid injuries during the said occurrence. Therefore his presence cannot be doubted at the scene of occurrence. Yet another criticism against the evidence of this witness is that his brother Ashwanibhai figured as a panch witness and that some of his relations figured either as accused or witnesses in the earlier cases. Merely because his brother figured as a panch witness or even accepting that his brother and some relations were accused in the earlier cases, it could not be a valid ground to doubt his veracity and on the suggestion that P.W. 4 was chosen as a complainant purposely and deliberately also has no force since his presence at the scene of occurrence cannot be doubted.;