SCR.A/400/2010 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 400 of 2010 [ENTITY] - Applicant(s) Versus [ENTITY] - Respondent(s) Appearance : MR [ENTITY] for Applicant(s) : 1, MR [ENTITY] for Respondent(s) : 1, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 23/09/2010 ORAL ORDER
Petitioner is a victim and eye-witness of a post-Godhra riot case bearing [CASE NUMBER] (new) arising out of [CASE NUMBER]. Allegations against the accused are those punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT].
During the proceedings of trial, on behalf of the State an application came to be filed on 18.11.05 requesting for adding six persons as additional accused under [SECTION] of the [ACT]. Those persons were as follows:-
[ENTITY].
On the said application Ex.45, the learned Trial Judge passed order dated 2.6.06 keeping such application in abeyance to be taken up for consideration after evidence of the witness [ENTITY] is over. Once again, request was repeated on behalf of the State. Learned Judge thereupon passed the impugned order dated 11th December 2009 and rejected the said application Ex.45 primarily on the ground that in their entire statements before the police, none of the witnesses had involved any of the proposed accused and that in the deposition before the Court also, there are discrepancies between the versions of different witnesses.
Counsel for the petitioner took me through the evidence of relevant witnesses who had attributed roles of the said persons at the time of incident. He contended that the approach of the learned Trial Judge was erroneous. It was not necessary to ascertain whether there would be ultimate conviction if the persons are added as accused. What was required to be seen was whether there is some evidence to proceed against these persons so as to appear that they have committed offences in question. He placed reliance on the following decisions :
In the case of [PRECEDENT] In the case of [PRECEDENT].
In the case of [PRECEDENT].
Learned counsel for the State did not oppose the petition contending that it was the State's application which the Trial Court rejected.
Upon perusal of the evidence of different witnesses produced before me, following aspects emerge :
Witness [ENTITY], PW-4, in his deposition at Ex.44, stated that on the date of the incident, a mob of about 150 people had gathered. He could recognize about 10 to 12 of them. Some he could recognize only by face. He had seen, besides others, [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] in the said crowd. He further stated that [ENTITY] was pouring petrol and throwing burning rags. [ENTITY] was carrying an axe in his hand which he had hit on the door of one of the houses.
Witness [ENTITY], PW-5, in his deposition Ex.59, stated that in the crowd of about 100 to 150 people, he had seen besides others, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. He further stated that [ENTITY] had given blow of axe on the stopper of his house door. [ENTITY] was hitting the door with a stick. This he repeated in the further cross-examination also.
Witness [ENTITY], PW-6, Ex.60, stated that in the mob, he had seen besides others, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], and [ENTITY]. In the cross-examination, he further stated that [ENTITY] had given an axe blow to him.
Witness [ENTITY], PW-12, Ex.74, stated that out of the persons in the mob, [ENTITY] was not present before the Court. His statement, therefore, involves only one person.
From the above depositions of witnesses, it can be seen that at best with respect to th proposed accused, other than [ENTITY] and [ENTITY], even as per the deposition of the witnesses, no overt act is attributed to any of the persons. It is true that certain witnesses, as noted above, have stated about the presence of these proposed accused. However, they are only shown to be part of the mob and they are not shown to be carrying any weapon nor overt act is attributed to anyone of them except [ENTITY] and [ENTITY].
With respect to these persons, considering the conclusion of the learned Trial Judge and bearing in mind the fact the previously before the police also, these persons were not named by witnesses, I see no reason to interfere with the order of the Trial Court. However, with respect to [ENTITY] and [ENTITY], the witnesses have not only indicated their presence, but also have attributed weapons and overt acts. [ENTITY] is stated to have been carrying an axe with which he had tried to break open the door of one of the houses and [ENTITY] is stated to have been carrying a stick which which he hit the door of the house.
To the extent of involvement of these persons, to my mind, case is made out for exercise of powers under [SECTION] of the [ACT]. Bearing in mind the various judicial pronouncements particularity, in the case of [PRECEDENT] (supra) I am of the opinion that the learned Judge committed an error in rejecting the said application in toto.
Under the circumstances, by partially allowing this petition, application Ex.45 is allowed to the extent the same pertains to two proposed accused, namely, [ENTITY] and [ENTITY]. The learned Trial Judge shall issue necessary process against these persons and thereafter proceed in accordance with law. The petition stands disposed of accordingly.
Direct service is permitted.
([ENTITY], J.) (vjn)