2002 Riots: Gujarat High Court Upholds 2015 Order Acquitting Six Men Accused Of Killing Three British Nationals

The Gujarat High Court has upheld a 2015 sessions court order which acquitted six men in a case related to the killing of three British Nationals near Prantij, during the 2002 state-wide riots which followed the Godhra Train Burning incident. 

In doing so the court observed that there had been no test identification parade in the matter and the dock identification was conducted for the first time after a gap of six years. The court thus ruled that the manner in which dock identification of the accused was conducted cannot be a relevant fact to convict them. It further observed that the initiation of probe in this case was not based on independent eye witness evidence but on an "anonymous fax message sent to the British High Commission, which narrated the names of the respondents as accused persons". 

A division bench of Justice AY Kogje and Justice Samir J Dave in its March 6 order after perusing the various testimonies of witness including that of the appellant–complainant (PW 68) and the Investigating Officer observed:

"This Court is of the view that the I.O. made an attempt to carry out the T.I.P. during the course of investigation by the first I.O. However, for the reasons mentioned in his deposition, the T.I.P. could not be proceeded, the Court does not find any reason to attribute any malafide to the role of the I.O. Thereafter, the manner of the identification during the testimony of PW-68 and that too via video conferencing and the answers being given by PW-68 on the issue of identification, the Court is of the view that such an identification may not be treated as an absolute identification to be a substantive evidence on which a conviction can be based or more so, an acquittal can be reversed".

The bench observed that the sessions court had considered the evidence of the complainant, the FIR and the evidence of the IO and had accepted the defence's argument that the description of the accused given by the witness was only about the height, clothes and approximate age; even the FIR did not contain a description of the accused. 

"Therefore, the Sessions Court has rightly concluded that such an identification (Dock) cannot be the sole ground to base conviction," the court observed. 

It further observed that the complainant had in "Dock identification via video conference" identified the accused as a part of the mob, and referred to Supreme Court decisions which provide for safeguards to be kept in mind by the Courts before accepting the Dock identification as an absolute evidence under Section 9 of Evidence Act. 

"In present case, there was no T.I.P. admittedly and PW-68 is a stranger to the area and the people consisting the mob, the Dock identification is for the first time after a gap of 6 years. Therefore, the Court has no hesitation to conclude that the Dock identification of the accused in the manner described in the preceding paras can not be treated as a relevant fact established by prosecution to convict the accused," the court said. 

The court perused the complainant's cross examination during trial and noted that he had admitted in his 2008 statement that he had expressed difficulty identifying the accused due to the passage of time.He had however denied the defence's claim that he had not disclosed details about the attackers' appearance in 2002. 

On the reliability of the complainant's evidence regarding the version depicted by him pertaining to the mob the court observed, "This witness has deposed that the vehicle was intercepted by a mob of 15 to 20 people, where as the mob consisted of large number of people. An independent witness, PW19, Pravin Patel, Exh-111 in his chief has mentioned that the Jeep vehicle was followed by a mob as of 150 to 200 persons. This version is consistent even in his cross". 

It observed that though the carrying of lie detector test of accused was not argued however the court said that conclusion of FSL report on each of the accused-respondents exonerates them from being in the line of suspect. 

On how the names of the accused surfaced in during the course of investigation and on what basis were they subjected to probe and trial the court said:

"The root lies in the anonymous fax letter which was addressed to British High Commission, which narrated the names of the respondents as accused persons. The Court may refer back to the evidence of PW No.75, Exh.297, an officer of British Consulate and who have referred to an anonymous fax with names of 10 suspects, which he in turn had forwarded to Director General of Police and the Investigating Officer. Therefore, the initiation of the investigation is also based on an anonymous fax message and not on the basis of the evidence of any independent eyewitness". 

The court thus dismissing the appeal, noting that it cannot find a reason to interfere with the trial court's acquittal order.

Background

On February 28, 2002 the complainant–Imran Mohamad Salim Dawood along with his two uncles Saeed Safik Dawood and Sakil Abdul Hai Dawood and another person of his village, Mohamad @ Nallabhai Abdulbhai Aswar, all British nationals were on their way back after completing their trip to Agra and Jaipur, in a car along with their driver Yusuf.

The complaint stated that at about 6.00 p.m., there was a mob on the highway carrying sticks and dhariyas in their hands. The mob is stated to have intercepted their vehicle and attacked the passengers. The occupants tried to run, but mob injured Mohamad Aswar on the head. The driver was also seriously injured, as a result of which he died on the spot and the mob is stated to have set fire to the jeep.

As per the complaint, the complainant's two uncles fled away towards nearby fields while being chased by the mob. The complainant and his relative Mohamad Aswar were injured; a police patrolling van reached the spot and the two were brought to the hospital where Mohamad Aswar was declared dead.  

Subsequently the relative of the uncles' from UK, along with the then British Deputy High Commissioner and police personnel from Prantij police station visited a factory near the area where the vehicle was burnt and were stated to have "found small fragments of bone". The police inspector had handed over the bone fragments to the then British Deputy High Commissioner who arranged for it to be sent to the British Deputy High Commission in Mumbai, which was thereafter sent to a Forensic Laboratory in Hyderabad; blood samples of the family were also taken to assist in the identification.

Thereafter on March 24, 2002 "an anonymous fax" was received by the then British Deputy High Commissioner in which name of one of the accused–Pravinbhai Jivabhai Patel was mentioned stating that he along with a "mob of 50-100 persons" allegedly killed the complainant's uncles.

The order notes that the then British Deputy High Commissioner wrote to the then Director General of Police requesting him to direct the Prantij police to investigate further into the killings of the Appellant's uncles. 

Subsequently the Supreme Court had in a 2003 plea–National Human Rights Commission v/s. State of Gujarat and others, directed the State of Gujarat to constitute a Special Investigation Team (SIT) in nine cases, including the appellant's case. 

Pursuant to this on April 1, 2008 the State issued a notification constituting a SIT. In December 2008 the appellant's statement was recorded by the SIT. In 2009 sessions court framed charges against the six accused for various offences of the IPC including Sections 302(murder), 323(voluntarily causing hurt), 153(A)(Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) read with Sections 143(punishment for unlawful assembly), 147(punishment for rioting), 148(Rioting, armed with deadly weapon) among others. 

Case title: IMRAN DAWOOD S/O. MOHAMMAD SALIM DAWOOD BRITISH NATIONAL v/s PATEL MITHABHAI PASHABHAI & others

Click Here To Read/Download Order 

Citation: 2025 LiveLaw (Guj) 55