PW’s DISBELIEVED FOR ACCUSED NO. 44 IN H.C.

JUDGMENT

1. PW - 37 Salimbhai Roshanali Shaikh. @pg. 393 to 422 ,

Para 55 onwards.
 From the testimony of this witness, it emerges that
his first statement was recorded by the police on
11.4.2002 wherein he has not named any accused.
It also appears that he had stated that his son was
killed in the morning by a mob which came from the
side of the canal. Assuming that there may be a
mistake in mentioning the time, one striking fact
which emerges is that he had not named any
accused in his statement recorded by the police. Of
course, it is the case of the witness that he had
named the accused but the police had not recorded
the same. It appears that another statement of this
witness was recorded on 25.6.2002, which was
more or less in the nature of a loss damage analysis
statement. Even at this stage the witness has not
named any accused in his statement and for the
first time that he has named the accused is before
the SIT. While the witness has lodged a complaint in
connection with the loss and damage caused to his
properties in the incident, he has not lodged any
complaint regarding the death of his son. In his
cross examination, it has been elicited that after
 they received compensation for the death of his son,
they had remained silent and it was only when the
SIT was constituted that he had come forth to get
his statement recorded and had named the six
accused referred to in his examination-in-chief.
While it is true that considering the conduct of the
police at the time of the incident, the witnesses
would suffer from lack of faith insofar as the police
authorities are concerned, however, even when the
statement was recorded he has not named any
accused and the version of the incident stated
before the police does not tally with the version
stated before the court. This witness, therefore, does
not appear to be a credible witness and no part of
his evidence can be relied upon. @Pg. 421 /para
55.46
 This witness has referred to the presence of this
accused in the mob at Noorani Masjid in the
morning as well as in the incident of killing Sadiq
and Sharif near the water tank in the evening. This
witness has not been found to be a credible witness
and hence, his testimony would not advance the
prosecution case. @Pg. 3304 /para 1

2. PW- 52, Aminaben Abbasbhai Belim. @pg. 422 to 458,

Para 56 onwards.
 The witness also claims to have witnessed the
killing of Vermaji Panwala. She also claims to have
 seen the mob looting her house. She further claims
that Bipinbhai Autowala had climbed on his shop
and was firing from there. Apart from the fact that
this version does not find corroboration from any
other witness, it is difficult to believe that Bipinbhai
would fire from the terrace of Bipin Auto, inasmuch
as from the testimonies of the witnesses it emerges
that there were mobs of Hindus on both sides of the
national highway, in which case it would be Hindus
who would be injured in such firing. Her version of
having made telephone calls to the police also does
not inspire confidence. Thus, the witness claims to
have seen multiple incidents during the entire day;
however, none of this was disclosed by her at the
relevant time and after a period of six years she has
come all the way from Maharashtra and has
narrated the same before the SIT @Pg. 456 /para
56.56
 This witness has named accused No.37 Mayaben,
her assistant (who as per the prosecution is accused
No.62 Kirpalsingh), accused No.44 Bipinbhai,
Guddu (deceased) and accused No.22 Suresh. Out
of the accused named by her, she has identified
accused No.37. She has identified accused No.44
Bipinbhai but has stated that she cannot remember
his name at present. She has thereafter identified
accused No.38 as Mayaben’s assistant and has not
identified accused No.22 at all. Thus, the witness
 could not identify accused No.62 and 22, and has
identified accused No.44 by his face and not by his
name. @Pg. 457 /para 56.57

 The witness, therefore, appears to have come up

with a highly exaggerated version of the incident,
that too, for the first time after six years.
Considering the overall testimony of this witness she
does not come across as a truthful or credible
witness. Her entire testimony does not inspire any
confidence, and, therefore, no part of her testimony
can be relied upon to convict the accused named by
her. @Pg. 458/para 56.58

 This witness has deposed that this accused was

firing from the terrace of his garage. This witness
has not been found to be a truthful and credible
witness and hence, her testimony is of no avail to
the prosecution. @Pg. 3304/para 56.582

3. PW-105 Hussainbhai Valibhai Kaladiya @pg. 729 to 743,

Para 102 onwards.
 From the overall testimony of this witness, it
emerges that several people in the mob were from
the Naroda Patiya area, out of whom, Kadri, about
whose health he had gone to inquire had identified
several of them to him. The persons whom Kadri
pointed to him were Manoj Sindhi (A-41), Suresh
 Langdo (A-22), Bipin Autowala (A-44), Guddu
Chhara (deceased), Bhavanisingh (deceased) and
Tiwari (A-25). Thus, after considering the
contradictions and omissions in the police
statement, this part of his testimony remains
undislodged. However, from the testimony of the
witness, it is evident that he did not know the
named accused, but it was his friend Kadri, who
identified them to him. The witness has also not
been able to identify any of the accused in the dock.
Under the circumstances, the testimony of this
witness does not in any manner help the
prosecution in establishing any charge against the
named accused. @Pg. 742/para 102.22
 This witness has referred to the presence of this
accused in the mob on the road in the morning but
has failed to identify him. His testimony would,
therefore, be of no avail to the prosecution. @Pg.
3304/para 3

4. PW-143 Dildar Umrao Saiyed @pg. 1043 to 1080, Para

132 onwards.
 Considering the omissions and contradictions that
have been brought out in the cross-examination of
the witness, it has come out that in his statement
dated 4.5.2002, the witness has named only Bipin
Autowala and Guddu as being in the mob, whereas
 before the SIT and the court, he has improved the
version and named Mayaben Kodnani, Murli and
Tiniya also. The entire version regarding the
presence Mayaben together with Murli, Bipin
Panchal and Guddu as well as the presence of
Mysorewala, is, therefore, an improvement in the
statement of the witness, which has come on record
for the first time in the statement recorded by the
SIT. @Pg. 1076/para 132.79
 Insofar as accused No.44 Bipin Panchal is
concerned, the witness has stated that after the
morning incident, in the evening after 5:30 to 6:00,
while he was sitting on the staircase (of Gauri Apa’s
house), he saw Datania (S.R.P. personnel), Bipin (A-
44), Murli (A-2) and Guddu (deceased) lifting Ayub
and putting him in a rickshaw and pouring
kerosene from the can which Tiniya had in his hand
on the rickshaw and setting him ablaze. Thus,
insofar as accused No.44 Bipin Panchal is
concerned, in the original statement, the witness
had only mentioned his presence in the mob which
came to Jawannagar after the wall was broken,
whereas in his deposition, the role attributed to him
is totally different, inasmuch as, he has stated that
he came in the morning in a Maruti car with
Mayaben and upon seeing him, told him to go away,
or else he would hack him down, and once again, in
the evening, he saw him along with the other
 accused, lifting Ayub, putting him in a rickshaw,
pouring kerosene and setting the rickshaw ablaze.
The version given by the witness concerning Bipin,
the sole living accused named by him in his police
statement, is different from the version given by him
in his police statement to such an extent that it is
not possible to reconcile the two versions. Therefore,
even in respect of accused No.44 Bipin, whom he
has named in his police statement, it is not possible
to accept the testimony of this witness as the role
attributed to him in the deposition is totally different
from the role attributed to him in his police
statement. @Pg. 1077/para 132.81

 The upshot of the above discussion is that no part of

the testimony of this witness can be relied upon for
the purpose of proving the charge against any of the
accused named by him. @Pg. 1080/para 132.84

 This witness has referred to the presence of this

accused in the mob; however, he has been found to
be not credible and trustworthy and hence, his
testimony would be of no avail to the prosecution.
@Pg. 3306/para 9

5. PW-169 Jubaidaben Mohammadidrish Belim. @pg. 1379

to 1397, Para 154 onwards.
 From the testimony of this witness it appears
that she has given a different version of the
incidents that took place on 28th February,
2002 than the version given by other
witnesses. In respect of most of her
examination-inchief, omissions and
contradictions as to her previous statements
recorded by the police, have been brought out
and proved. The witness had named four
accused persons in her examination-in-chief
viz. Bipin (A-44), Guddu (deceased), Suresh
Langdo (A-22) and Bhavanisingh (deceased)
and had also named them in her statement
dated 12.5.2002 as well as in her statement
dated 23.5.2008 recorded by the SIT; however,
she has failed to identify any of the accused
before the court. Having regard to the quality
of her evidence, the witness does not come
across as a credible and trustworthy witness.
No part of her testimony can, therefore, be
relied upon to prove the charge against the
accused. @Pg. 1396/para 154.55
 This witness has referred to the presence of
this accused in the mob in the evening
between 7:00 to 8:00 p.m. She, however, has
failed to identify him in the dock and hence,
her evidence is of no avail to the prosecution.
@Pg. 3307/para 14
6. PW-175 Saiyed Yakubali Kasamali @pg. 1450 to 1463,
Para 162 onwards.
 The witness claims to have seen Bipin Panchal
(A44), Guddu Chhara (deceased), Hariyo
Chhara (A-10), Manoj Videowala (A-41) and
Suresh Chhara (A-22) in the mob in the
afternoon at 1:30 and has identified all the
accused in the dock. @Pg. 1462/para 160.30
 From the cross-examination of the witness, it
has been elicited that the witness in his
statement dated 12.5.2002 [recorded by PW
283] has named the accused, but has not
stated as to where he had seen them. It may be
noted that no omissions or contradictions as to
his police statement have been brought out in
the cross-examination of the witness. Certain
parts of his police statement are put to the
witness, without seeking to contradict any part
of his testimony, which is not in consonance
with the provisions of section 162 of the Code
read with section 145 of the Evidence Act;
therefore, such part of his testimony is not
admissible in evidence. It appears that in his
police statement, he had given a different
version. Therefore, this witness appears to
have improved upon the version given by him
before the police. Besides, neither in the police
 statement, nor in his deposition before the
court, has the witness stated as to where he
had seen the accused. The witness has
deposed that he had seen the above named
accused in the mob at 1:30 in the afternoon,
without stating anything more, which is highly
vague. This witness, therefore, does not appear
to be a credible and truthful witness, and,
therefore, it would be hazardous to place
reliance upon such vague evidence to establish
the charge against the accused. No part of the
testimony of this witness can be relied upon
against the named accused. @Pg. 1463/para
160.29
 This witness has referred to the presence of
this accused in the mob at 1:30 in the
afternoon. This witness has not been found to
be a credible and truthful witness and hence,
his testimony would be of no avail to the
prosecution. @Pg. 3307/para 16

7. PW-179 Nasimbanu Abdulrehman Shaikh @pg. 1494 to

1507, Para 163 onwards
 The only admissible part is contained in
paragraph 34 of her deposition, wherein it has
been brought out that the witness has referred
to a huge mob setting their chawls on fire
wherein a man named Bipinkumar was coming
 running and was saying loot the houses of
Muslims and burn them aliveThus, in her
cross examination, it has been brought out
that the witness had named one Bipinkumar
and not Bipinbhai Panchal in her statement
before the police and no test identification
parade had been carried out to ascertain the
identity of the accused. Besides, the witness
has failed to identify Bipin Panchal (A-44) in
the dock. Therefore, her testimony would not
help the prosecution to prove the charge
against accused No.44. @Pg. 1506/para
163.34
 This witness has referred to the presence of
this accused in the mob coming from the side
of Uday Gas Agency. She, however, has failed
to identify the accused and hence, her
testimony would not help the prosecution to
prove the charge against this accused. @Pg.
3307/para 17

8. PW-186 Taerabanu Mohammadkasam Abdulla @pg. 1578

to 1582, Para 171 onwards
 This witness’s house is situated in Pandit-ni-
Chali, somewhat opposite to the ice factory. In
her cross-examination it has been elicited that
Bipinbhai’s garage is adjoining the ice factory
and that when she comes out of her house she
can see Dhanurdhari Mata’s temple and
Bipinbhai’s garage. In her cross-examination it
has further been elicited that in her anxiety,
she had not seen exactly where he was
standing, but that she had seen him standing.
This witness, in her examination-in-chief, has
named two accused viz., Sahejad Chhara (A-
26) and Bipin Panchal (A-44) as leading
different mobs when she was returning from
her work place. Thereafter, she has stated that
she had given Sahejad’s name out of
nervousness. The witness has identified A-44
Bipin Panchal in the dock. However, from her
cross examination it is apparent that Bipin
Panchal’s garage is situated near her house on
the opposite side and when she comes out of
her house she can see his garage. The witness
has not been able to say where she had seen
this accused; therefore, it is quite possible that
she may have seen him in his garage.
Considering the quality of evidence of this
witness, no reliance can be placed upon her
testimony for proving the charge against
accused No.44 Bipin Panchal. The testimony of
this witness, therefore, does not help the
prosecution in proving the charge against
either of the accused named by her. @Pg.
1582/para 171.10
  This witness has deposed that she had seen
that this accused was leading different mobs
when she was returning from her workplace.
Considering the quality of her evidence, the
court has found that her testimony is not
reliable qua this accused. @Pg. 3308/para 19

9. PW-188 Mohammadbhai Bachubhai Belim @pg. 1589 to

1610, Para 173 onwards
 Therefore, insofar as accused Bipin, Manoj and
Suresh are concerned, the witness has named
them for the first time before the SIT in the
year 2008 and insofar as accused Tiwari is
concerned, an allegation has been made
against him for the first time in the court. In
the opinion of this court, since the accused
named by this witness in his statement before
the SIT, have been named by other witnesses
in their police statements, there is no reason to
believe that, at the relevant time, though the
witness has named these accused, the police
had not written them down, more so, when no
such grievance was made before the SIT.
Under the circumstances, it would be
hazardous to rely upon the testimony of this
witness for the purpose of establishing the
charge against the accused, namely, Bipin (A-
 44), Manoj (41) and Suresh (A-22) and Tiwari
(A-25). @Pg. 1610/para 173.51
 This witness has referred to the presence of
this accused in the mob from Krushnanagar at
10:00 a.m. in the morning. The witness has
not named this accused in his first available
statement dated 12.5.2002 and had named
him belatedly in his statement dated 26.5.2008
recorded by the SIT. This court has, therefore,
found that his testimony cannot be relied upon
against this accused. @Pg. 3308/para 20

10. PW-192 Rasidabanu Imtiazhussain Momin @pg. 1673

to 1706 , Para 177 onwards
 Considering the overall testimony of the
witness, it emerges that the witness had given
the names of the accused referred to in
paragraph 9 of her examination-in-chief for the
first time before the SIT, that is, after a period
of more than six years from the date of the
incident. At the relevant time, when her
statement came to be recorded on 12.5.2002 or
even on 11.6.2002, the witness had stated that
she did not know the names or addresses of
any of the people in the mob. It may be noted
that out of the persons named by this witness,
except for accused No.37 Mayaben Kodnani,
the names of the other accused have also been
 mentioned by other witnesses and the same
have been recorded by the concerned
Investigating Officer/assignee officer.
Therefore, there was no reason for the
Investigating Officer not to record the names of
the accused, as stated by the witness in her
testimony. @Pg. 1703/para 177.73

 In paragraph 121, the witness is cross-

examined with regard to acquaintance with
Bipin Autowala, wherein she has stated that
she has not seen Bipin Autowala. She has
never talked with Bipin Autowala and they had
never any occasion to meet each other. @Pg.
1705/para 177.75

 Thus, from the testimony of this witness, it

emerges that she has named the accused for
the first time after a period of six years and
despite the fact that two of her statements
have been recorded at the relevant time, that
too, after a period of more than two months
from the date of the incident, the witness had
not named any accused. Under the
circumstances, it would be hazardous to rely
upon the testimony of this witness to prove the
charge against the accused. @Pg. 1706/para
177.76
  This witness has referred to the presence of
this accused in the mob on the road in the
morning. This witness had not named the
accused in her statements dated 12.5.2002
and 11.6.2002 and has named him for the first
time in her statement dated 10.6.2008
recorded by the SIT. This court has, therefore,
not accepted the testimony of this witness qua
this accused. @Pg. 3308/para 21

11. PW-193 Ibrahim Hasanbhai Shaikh @pg. 1706 to 1711

,Para 178 onwards
 This witness in his examination-in-chief has named
accused No.44 Bipin Panchal. As per the version
given by this witness at around 11:00 to 11:30 he
had seen Bipin Autowala go from his garage towards
Krushnanagar. Thereafter, the mob from the side of
Krushnanagar grew larger. Subsequently, a police
jeep also came. The mob which came from the
direction of Krushnanagar was firing at them and
bursting shells. Thereafter, from the police jeep also,
they were firing and lobbing shells. The witness has
deposed that Bipin Autowala must have told them,
and therefore, the public had come from
Krushnanagar and the police jeep came behind
them. Thus, merely because he had seen Bipin
 Autowala go towards Krushnanagar, the witness
has presumed that he must have told the public to
come there. On the basis of such presumption, the
complicity of the accused cannot be established.
Moreover, the witness has stated that the facts
stated by him that Bipinbhai must have told the
mob, was his personal opinion and has failed to
identify him in the dock. The testimony of this
witness, therefore, does not in any manner support
the prosecution for proving the charge against the
said accused. @Pg. 1711/para 178.18
 This witness has stated that he had seen this
accused going from his garage to Krushnanagar.
The witness has failed to identify the accused in the
dock. Moreover, he had named this accused merely
on thebasis of presumption. His testimony,
therefore, does not in any manner support the
prosecution case. @Pg. 3308/para 21

12. PW-198 Harun Mahammadbhai Shaikh @pg. 1716 to

1740 , Para 180 onwards
 In paragraph 95 of his cross-examination the
witness is confronted with his statement dated
16.1.2009 to the effect that he has stated therein
that at around 5:30 to 6:00 in the evening, while he
was standing at the corner of the Uday Gas Agency
lane, he had seen Mayaben Kodnani and Bipin
 Autowala in a mob on the highway opposite Bipin
Auto. The witness has admitted that in his
statement dated 12.9.2008 he had stated that he
had seen Mayaben Kodnani, Ashok Paan-na
Gallawala and Manoj Videowala in the mob opposite
the S.T. Workshop in the evening time. @Pg.
1739/para 180.52
 The witness has named several accused in his
deposition, namely, Mayaben Kodnani (A-37), Babu
Bajrangi (A-18), Sachin Modi (A-52), Ashok Panna
Gallawala (A-45), Manoj Videowala (A-41), Suresh
Langdo (A-22), Haresh Rathod (A-10), Guddu
(deceased) and Bipin Autowala (A-44). However,
considering the nature of contradictions in the
testimony of this witness as well as the fact that his
version has come on record for the first time only in
the year 2008, when his statement came to be
recorded by the S.I.T. as well as considering the
contradictions in his testimony before the court and
his statement recorded by the S.I.T., the witness
does not come across as a credible and truthful
witness. Under the circumstances, it would be
hazardous to rely upon the testimony of this witness
to prove the charge against the accused in such a
serious offence. @Pg. 1740/para 180.55
 This witness has referred to the presence of this
accused in the mob on the road in the morning.
This witness had not given any statement before the
 police at the relevant time and it is only in the year
2008, when his statement came to be recorded by
the SIT, that he has named the accused. This court
has found the witness to be not a credible and
truthful witness. @Pg. 3309/para 23

13. PW-200 Saukat Nabibhai Mansuri @pg. 1749 to 1764,

Para 182 onwards
 The witness has named Bipin Panchal (A-44) and
Babu Vanzara (A-33) as being amongst the people in
the mob. He has also attributed specific weapons to
them viz., Bipin Panchal had a revolver at that time
and Babu Vanzara had a sword. In the cross-
examination of the witness, a contradiction has
been brought out that in his statement dated
13.5.2002, he had stated that Bipinbhai Patel who
sells and purchases cars opposite Natraj had a
small pistol and he had fired at the Muslims. Such
contradiction has been duly proved through the
testimony of PW-279 Shri B.J. Sadavrati. It is an
admitted position that there is no accused by the
name of Bipinbhai Patel. Subsequently, on
7.6.2002, his statement came to be recorded once
again for the purpose of clarification as to whether
the other accused named by him was Babu Bajrangi
or Babu Vanzara. At that point of time, his previous
statement dated 13.5.2002 was read over to him,
 but he did not point out that there was a mistake in
recording the name of the accused, namely that it
was Bipin Panchal and not Bipin Patel. The
Investigating Officer, who sought clarification
regarding the name of the other accused, did not
deem it fit to seek a clarification as to whether the
accused named by him was Bipin Patel or Bipin
Panchal. It is only much later, when his statement
came to be recorded by the SIT in the year 2008,
that the witness has corrected his statement to the
effect that he had named Bipin Panchal. Thus, the
name of accused No.44 Bipin Panchal was not given
till his statement came to be recorded by the SIT.
Moreover, even the description of the accused as
given by him, does not match with the description of
accused No.44, inasmuch as this accused does not
sell and purchase cars opposite Natraj. Not only
that, despite there being such a discrepancy in the
statement of the witness, no test identification
parade had been conducted by the investigating
agency, to ascertain the identity of the accused.
Under the circumstances, it would be hazardous to
place reliance upon the testimony of this witness to
prove the charge against this accused. @Pg.
1763/para 182.34
 This witness has referred to the presence of this
accused in the mob in the morning, but in his
statement dated 13.5.2002 he had referred to the
 accused as Bipin Patel. Upon an overall
consideration of the testimony of this witness, his
testimony has not been believed qua this accused.
@Pg. 3309/para 24

14. PW-213 Hasibkhan Achchhankhan Pathan @pg. 1943

to 1967 Para 193 onwards
 In his examination-in chief, the witness has stated
that he had seen Bipin Panchal (A-44), Mukesh
Alias Guddu Chara (deceased), Babubhai Alias
Babu Vanjara (A-33), Suresh Langda (A-22) and
Navin Chhara (A-51) in the mob with the police on
the road in the morning. The witness has also
attributed specific weapons to them and has
attributed specific roles to Bipin Panchal and Navin
Chhara. Bipin Panchal, Guddu, Bhavanisingh, who
is known as Ratilal alias Bhavani, killed Ayub and
set the rickshaw ablaze, all of which he had seen
from the terrace. Thereafter, he climbed down from
the terrace of Gangotri Society and went towards
Hussainnagar and took shelter on the terrace of
Pinjara’s house.
 In his cross-examination, the witness has admitted
that from the year 2004 to 2008, till he made
application Exhibit 1529, he had not stated the
facts regarding the incident or names of the accused
before any authority and has voluntarily stated that
he had made oral representations to many
 authorities. From the cross-examination of the
witness as well as cross-examination of the assignee
officer, who had recorded his statement on
17.7.2002, it is established that the witness had not
named any accused in his statement dated
17.7.2002. @Pg. 1966/para 193.52

 Considering the fact that in his initial statement the

witness has not named the accused and has named
them at a much belated stage after a period of six
years without any plausible explanation for the
same, it would be hazardous for the court to rely
upon his testimony for the purpose of proving the
charge against the accused named by him. @Pg.
1967/para 193.53

 This witness has deposed that he has seen this

accused in the mob in the morning on the road with
the police as well as in the incident in which Ayub
was killed in the evening. Considering the fact that
in his initial statement dated 17.7.2002, this
witness had not named the accused and he had
named him at a much belated stage in the year
2008, without any plausible explanation coming
forth, this court has found that his testimony could
not be relied upon against this accused. @Pg.
3309/para 26
15. PW-227 Zuberkhan Islamkhan Pathan @pg. 2060 to
2078 Para 204 onwards
 As per witness at that time, in the mob from the
side of Krushnanagar, he saw Bipin Panchal (A-44),
Guddu Chhara (deceased) and Babu Garagewala (A-
33), all of whom were armed with weapons. The
entire story put forth by the witness is contrary to
the evidence on record. The statement of this
witness was recorded for the first time before the
SIT. Prior thereto, no statement of this witness was
recorded; however, a printed complaint Exhibit-
1616 was made by this applicant, wherein he has
not named any of the accused. A perusal of the
complaint Exhibit-1616 reveals that it is signed by
the witness and, therefore, it appears that the
witness is not illiterate. @Pg. 2075/para 204.38

 Considering the overall testimony of this witness, he

does not come across as a credible and trustworthy
witness and no part of his evidence can be relied
upon for the purpose of proving the charge against
the accused. @Pg. 2078/para 204.43

 This witness has stated that in the mob from the

side of Krushnanagar, he had seen this accused and
that he was armed with a weapon. This court has
not found this witness to be credible and
 trustworthy and hence, his evidence cannot be
relied upon. @Pg. 3310/para 27

16. PW-233 Rajabax alias Rajesh Nabisha Saiyed @pg.

2149 to 2155 Para 210 onwards
 The sole statement of this witness was recorded by
the SIT in the year 2008, after a period of more than
six years from the date of the incident. The witness
has named two accused viz. Bipin Panchal (A-44)
and Manoj Videowala (A-41), and has claimed to
have seen them in a mob throwing his cart along
with a cart belonging to one Usmanbhai inside the
Noorani Masjid and setting them ablaze. He has also
stated that he had seen these accused calling the
mob. Out of the two accused named by him, he
could not identify Bipin Panchal in the dock. From
his cross-examination, it has been elicited that he
had seen the incident from the lane of the
unfinished building. In this regard it may be
pertinent to note that the lane of the unfinished
building is on the same side as the Noorani Masjid,
therefore, a person standing in that lane would not
be in a position to see what was happening inside
the Noorani Masjid.In his cross-examination, he has
stated that as he was afraid, he had not given his
complaint at the relevant time, which does not
appear to be a plausible explanation. In these
 circumstances, it would be very hazardous to place
reliance upon the testimony of this witness to prove
the charge against the accused. @Pg. 2154 /para
210.19
 This witness claims to have seen this accused in a
mob throwing his cart along with the cart belonging
to one Usmanbhai, inside the Noorani Masjid and
setting them ablaze. The witness, however, could
not identify this accused in the dock. Under the
circumstances, the evidence of this witness is of no
avail to the prosecution. @Pg. 3310/para 28

17. PW-234 Mahammadyunus Basirahemad Shaikh @pg.

2155 to 2171 Para 211 onwards
 From the evidence of this witness it emerges that
no statement of this witness was recorded by the
police at the relevant time when the incident had
taken place, and his statement was recorded for
the first time 4.6.2008, after a period of more than
six years after the incident. @Pg. 2169 /para
211.42
 Insofar as the witness having seen Bipin in the mob
and exhorting them is concerned, it is difficult to
believe that with all the commotion going on he
could hear what Bipin was saying. @Pg. 2170
/para 211.44
  The statement of this witness has been recorded
after a considerable delay of more than six years
and no plausible reason has been advanced as to
why his statement was not recorded at the relevant
time. Having regard to the delay in recording of his
statement and considering the evidence of this
witness, he does not come across as a credible and
truthful witness. No reliance can therefore, be
placed upon his testimony to prove the charge
against Bipin Panchal (A-44), the sole living
accused named by him. @Pg. 2171 /para 211.45

 This witness has stated that he had seen this

accused standing at his auto centre and instigating
the mob. The statement of this witness was
recorded for the first time after more than six years
and no plausible reason has been advanced as to
why his statement was not recorded at the relevant
time. Apart from the delay, the witness has not
been found to be a credible and truthful witness
and hence, no reliance can be placed upon his
testimony. @Pg. 3310 /para 29

18. PW-235 Nadeemuddin Sharifuddin Saiyed @pg. 2171

to 2182 Para 212 onwards
 The only material omission which has been brought
out is that in the statement recorded by the police,
he had not stated that Bipinbhai’s surname was
 Panchal. Before the court the witness has identified
Ramesh Chara correctly, but has failed to identify
Bipinbhai Panchal correctly, and instead of him he
has identified accused No.17. Therefore, there is no
proper identification of accused No.44 Bipinbhai
Panchal. @Pg. 2181 /para 212.26
 This witness has deposed that he had seen this
accused in the mob in the afternoon between 11:30
to 12:00. This witness, however, has failed to
identify the accused. The testimony of this witness
is, therefore, of no avail to the prosecution insofar
as this accused is concerned. @Pg. 3310 /para 30

19. PW-236 Nadeemuddin Sharifuddin Saiyed @pg. 2182

to 2182 Para 213 onwards
 While the witness has named only two accused in
his examination-in-chief, namely Mayaben Kodnani
(A-37) and her P.A./Assistant, he has identified
Raju Chomal (A-24), Kishan Korani (A-20), Nandlal
alias J.K. Vishnu (A-17), Murli Naran Sindhi (A-2)
and Bipin Panchal (A-44) by their faces as being
the leaders of the mobs .Thus, while the witness
has not named these accused in any of his
statements or before the court, and no test
identification parade had been carried out to
identify them, the witness has identified them for
the first time before the court. In the opinion of this
court, it would be highly risky to accept such
 identification after a period of eight years from the
date of the incident without having first fixed the
identity of the accused. Therefore, the testimony of
this witness would not help the prosecution in
establishing the charge against the accused where
their implication in the offence is based merely on
such identification. @Pg. 2181 /para 213.72

 Thus, the testimony of this witness will not come to

the aid of the prosecution in proving the charge
against any of the accused, viz. those named and
identified and those who are only identified by him.
@Pg. 2182 /para 213.74

 This witness claims to have seen this accused as

one of the hundred leaders who met Mayaben
Kodnani on the road. This witness has not named
the accused in any of his previous statements
recorded by the investigating agencies nor has be
named him in his deposition before the court. No
test identification parade had been carried out
through this witness to identify the accused;
however for the first time before the court, this
witness has identified the accused by his face as
being a leader of the mob. Under the
circumstances, such identification after a period of
eight years for the first time before the court
without first fixing the identity of the accused has
 not been accepted by this court. @Pg. 3311 /para
31

20. PW-243 Sabbirali Niwasali Ansari @pg. 2258 to

2267 ,Para 219 onwards
 From the testimony of this witness it emerges that
his statement was recorded at the relevant time on
13.5.2002, wherein he had not named any accused.
Subsequently, before the SIT in the year 2008, he
has disclosed the names of four accused, two of
whom are dead. In his cross-examination, on the
one hand he has admitted that his statement was
recorded at the camp and on the other hand, when
he was confronted with his application made to the
SIT wherein he had stated that his statement was
not recorded by the police, he has chosen to stick to
the contents of the application and stated that in
that case his statement was not recorded by the
police. @Pg. 2266 /para 219.28
 Having regard to the fact that the witness in his first
available statement had not named the accused, it
would be hazardous to rely upon his testimony to
prove the charge against the named accused. @Pg.
2267 /para 219.29
 This witness has referred to the presence of this
accused in the mob which came from
 Krushnanagar with something like a revolver with
him. This witness in his first available statement
had not named this accused. Moreover, he has
failed to identify the accused in the dock. Under the
circumstances, no reliance can be placed upon his
testimony qua this accused. @Pg. 3311 /para 32

21. PW-249 Salauddin Sarifuddin Saiyed @pg. 2309 to

2314 ,Para 224 onwards
 As per the testimony of this witness, he and ten to
fifteen persons went to meet Bipinbhai at around
9:00 to 9:30 in the morning and he had told them
that nothing would happen there. He has further
deposed that when they went to meet Bipinbhai,
Babubhai Vanzara was also present there. The
witness has not made any other allegation against
either of the accused. Therefore, no criminality has
been attributed to either of the accused by this
witness. Moreover, the witness has also failed to
identify the accused in the dock. The testimony of
this witness, in no manner helps the prosecution in
proving the charge against both the named accused.
@Pg. 2314 /para 224.17
 This witness has deposed that ten to fifteen persons
from the minority community had gone to meet this
accused who had assured them that nothing would
happen. Apart from the fact that no criminality has
 been attributed to the accused by this witness, the
witness has also failed to identify the accused in the
dock. The testimony of this witness, therefore, does
not in any manner help the prosecution in proving
the charge against this accused. @Pg. 3311 /para
33

22. PW-258 Mahammadusman Mahemoodbhai Shaikh

@pg. 2353 to 2361 ,Para 230 onwards
 No statement of the witness was recorded at the
relevant time and no plausible explanation has
come forth as to why his statement could not be
recorded at that time. The witness has named two
accused, viz. Bipin Panchal and Manoj Sindhi in the
incident and has attributed specific roles to
them.Besides, in his sole statement recorded by the
SIT he has attributed a different role to the accused
than that stated before the court. Considering the
quality of the evidence of this witness, together with
the fact that the statement of the witness was
recorded at a highly belated stage, only in the year
2008, it would be very risky to rely upon the
testimony of this witness to prove the charge against
the accused. @Pg. 2360 /para 230.21
 This witness has deposed that he had seen this
accused instigating the people in the mob. This
witness has named the accused in the incident and
has attributed specific role to him; however, in his
 sole statement recorded by the SIT, he has
attributed a different role to the accused than stated
before the court. Considering the quality of the
evidence of this witness together with the fact that
his statement was recorded at a highly belated stage
in the year 2008, this court has not accepted the
testimony of this witness qua this accused. @Pg.
3312 /para 34

23. PW-260 Rasulbibi Azmuddin Shaikh @pg. 2368 to

2378 ,Para 232 onwards
 This witness’s statement came to be recorded at the
relevant time on 5.5.2002. Subsequently, her
statement also came to be recorded on 21.5.2008 by
the SIT. In her first available statement dated
5.5.2002, the witness has not named any accused
and for the first time, after more than six years,
before the SIT she has implicated four persons viz.
Bipinbhai (A-44), Sureshbhai (A-22), Guddu Chharo
(deceased) and Bhavani (deceased) stating that she
had seen them in the mob which was committing
arson. @Pg. 2377 /para 232.23
 The witness has deposed that when she came on the
road near the S.T. Workshop, she saw cabins being
set ablaze on the side of Krushnanagar. Considering
the overall evidence that has come on record, no
such incidents took place before 9:00 a.m. in the
morning. Whereas several witness have deposed
 about the presence of these accused on the road
near the Noorani Masjid or the S.T. Workshop, this
witness has alleged that the accused had set their
chawls, which are situated at a distance from the
Noorani Masjid, on fire. Since, the accused could
not have been at two places at the same time, it
would be safer to rely upon the version given by
majority of the witnesses than to rely upon the
version of this witness, which has come on record
only in the year 2008, to prove the charge against
the accused. However, insofar as the version of the
incident narrated by the witness is concerned, to the
extent the same is consistent with her original
version and the evidence on record, the same can be
taken into consideration. The testimony of this
witness, therefore, cannot be relied upon to prove
the charge against the named accused. @Pg.
2378 /para 232.23
 This witness has referred to the presence of this
accused in the mob that entered their chawls. This
witness in her first available statement has not
named any accused and for the first time after more
than six years, she has implicated this accused
before the SIT. Under the circumstances, the
testimony of this witness cannot be relied upon to
prove the charge against this accused. @Pg.
3312 /para 35