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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD.
DISTRICT : AHMEDABAD.
OF 2010. CRIMINAL REVISION APPLICATION NO.
Imtiyazkhan Saeedkhan Pathan …Applicant.
VERSUS
The State of Gujarat
I N D E X
SR.NO. ANNEX. PARTICULARS.
(1)
(2)
(3)
(4)
***
***
“A”
“B”
…Respondents.
LIST OF DATES AND EVENTS.
MEMO OF THE APPLICATION.
Copy of the judgement and order dated 18 th January, 2010 passed by the Learned Judge in Application
Exhibit-738.
Copies of the evidences of the relevant witnesses
PAGE
NOS.
(5) “C” Copy of the call records and chart of
M. K. Tondon.

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD.
DISTRICT : AHMEDABAD.
CRIMINAL REVISION APPLICATION NO. OF 2010. s
Imtiyazkhan Saeedkhan Pathan
Resident : Opp. Amber Tower Juhapura
Ahmedabad.
VERSUS
…Applicant.
1.
The State of Gujarat.
(Notice to be served through the
Ld. P.P. High Court of Gujarat
(Ahmedabad)
2. Special Investigation team
Notice to be served through
Special Public Prosecutor,
Special Investigation Team,
Godhra No : 11,
Dr, Jivraj Mehta Bhavan,
(Gandhinagar.) …Respondents.
APPLICATION UNDER SECTION 397
READ WITH SECTIONS 401 & 319 OF
THE CODE OF CRIMINAL PROCEDURE
1973, AGAINST THE JUDGMENT AND
ORDER PASSED BY THE LEARNED
ADDITIONAL SESSIONS JUDGE,
AHMEDBAD, BELOW EXHIBIT-738
DATED 18 TH JANUARY, 2010, IN
SESSIONS CASE NO. 152/2002 AND
ALLIED CASES.
TO;
THE HONOURABLE THE CHIEF JUSITICE AND
THE OTHER HONOURABLE COMPANION JUDGES
OF THE HONOURABLE THE HIGH COURT OF
GUJARAT, AT AHMEDABAD.

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The humble Application of the applicants abovenamed;
MOST RESPECTFULLY SHEWETH THAT;
(1) The applicant hereinabove, is one of the prosecution witnesses in Sessions Case No. 152/2002 and allied cases, pending before the Learned Additional Sessions Judge,
Ahmedabad, wherein as many as 64 accused have been charged for the offences punishable under Sections 120 B,
302, 307, 395, 436 and 435 etc., of the Indian Penal Code.
The accused persons have been alleged to have caused death of as any as 69 people. The applicant states that the eye witnesses have in their depositions in open court during the trial specifically named seven of the accused detailed below for varied criminal acts from active participaton in the mob, arson, looting, killing, criminal dereliction of duty and negligent behaviour and destruction of evidence. However, neither the Learned Additional Sessions Judge, nor the respondent No.2 hereinabove have followed due process and deemed it fit to arraign their names as accused in accordance with the provisions of Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the
CrPC” for short). The accused thus named by eye-witnesses in their testimonies before the Hon. Trial Court are, (1)
Rajesh Dayaram Jinger; (2) Manish Somabhai Patel @

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Manish Splender; (3) Babu Marwadi; (4) Iniyo Harijan; (5)
Mahendra Pukhraj; (6) Jagroopsinh Rajput; (7) then Police
Sub Inspector N.D. Parmar (in 2002) and (8) then Joint
Police Commissioner, Ahmedabad M.K. Tandon (in 2002)
(2) This failure by the Hon. Trial Court and Respondent No. 2 made it incumbent on the applicant and six other eyewitnesses to file an application under section 319 of the
CrPC before the Hon.Trial Court. The applicants therefore, filed Application being Exhibit-738 under Section 319 of the
CrPC which was heard at length on the 6 th and 7 th of
January 2010 and the Learned Judge by impugned judgment and order dated 18 th January, 2010 was pleased to partly dismiss the said Application. Annexed hereto and marked as ANNEXURE “A” to the Application is a copy of the judgment and the order dated 18 th January, 2010 passed by the Learned Judge in Application Exhibit-738.
(3) That the applicant states that the prosecution witnesses have attributed specific overt act to the accused, yet they have not been joined as accused and therefore the present application is being filed before this Hon’ble Court. The applicant craves leave to annex the copies of the evidences of the prosecution witnesses as ANNEXURE : “B” to this application.
(4) Failure to Interrogate Substantive Documentary Evidence of
State Complicity by SIT with a view to protect senior police officers. All these details have been also been submitted by

5 witnesses and their legal support, the CJP to the SIT but
SIT does not appear to be taking these investigations seriously. Annexed hereto are detailed graphs and tables on the call records of then Joint Commissioner of Police,
Ahmedabad, MK Tandon as ANNEXURE : “C” to this application.
(5) The applicant states that the role of the then joint commissioner of police was apparently suspicious, though the applicant relies merely on the evidence of the witnesses, the applicant craves leave to refer to the background and the detailed analysis of the phone calls and mobility of the then commissioner of police obtained from the depositions and CDs produced by the police witnesses before the Nanavati – Shah (Now Mehta) Commission, so as to appreciate the facts of the case.
(i) M K Tandon’s Role as Revealed by an Analysis of the CD
He, too, was in his office late in the night till about
1:15 am on 28.02.2002. In normal times, he also used to leave office at around 7:00 pm. Further, he arrived at his office at about 8:30 am on the morning of 28.02.2002. As in the case of Mr. P.C.
Pandey, his being in his office till late hours and arriving early suggests that he, too, was aware of the gravity of the situation.

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As had been mentioned earlier, Mr. Tandon had visited Gulberg society at around 11:25 am on the morning of 28.02.2002 but as police witness testimonies reveal before the trial court, despite coming with a striking force and a restive and violent mob met him, junior officers pleaded with him to send men and arms, he left with this well equipped force to another location. MK Tandon’s phone calls records show that he was received many calls from both political bigwigs and some accused. Was his decision to leave Gulberg society unprotected a professional decision or governed by political pressure? At 00:00:32 on 28.2.2002 he received a call from Govardhan Zadaphia, MOS
Home and later in the day around 5 p.m. a call from Kaushik Jamnadas Patel, state minister for power. Nimesh Patel, accused of killing eight people was also in touch with him at 22:28:34 on
28.2.2009.
While just outside Gulberg society, Mr. Tandon receives a call from Commissioner of Police PC
Pandey and its is assumed that the two would have spoken about the violence and restiveness of the mob at Gulberg. Eases a bit. This means that when
Mr. Tandon got a call from Mr. Pandey, police had either already resorted to firing or the mob

7 surrounding the Gulberg Society had become so restive that police firing was imminent. In such a situation, According to evidence that has come on the records of the Trial Court from Shri Balwant
Sinh of the Gujarat state’s Home Department, through 61 rounds were fired between 12 noon – 4 pm on the fateful day of 28 th February 2002 when violence was at its height, not one single person was injured in the firing on the restive and violent mob. Who in the police hierarchy told the officers on the spot to make a farce of protecting lives?
Was it Joint Commissioner of Police M K Tandon or
Commissioner of Police P C Pandey? We seek to rely upon relevant sections of the Gujarat Police
Manual and the Special Communal Violence
Scheme for the state that is statutorily binding on senior police officers to establish this point. Even a student of the Indian Police force will say that basic instructions during a growing violent and impending build up to violence are for the police to (i) disperse a mob with tear gas; (ii) if this does not work to us lathi charge; (iii) if, even this does not work then fire in the air and finally, as a last but necessary resort to fire below the knee/waist and lastly to kill.
If 61 rounds have been forced that day outside the
Gulberg society between 12 noon and 4 p.n. and no

8 one was injured does it mean that the police was simply firing in the air?? What were the seniors doing like Joint CP Mr Tandon? These are grave issues related to state complicity of the very highest level in mass communal crime and hence
need to be thoroughly interrogated by the courts. It appears that the Hon. Learned Judge is deliberately ignoring the seriously culpable role played by senior officers.
Mr. Tandon would certainly have mentioned to Mr.
Pandey the grave environment prevailing at the
Gulberg Society. Why did he choose not to do anything about it?
Inexplicably, after talking to Mr. Pandey, Mr.
Tandon heads for Naroda Patiya. If this movement was on the instructions of Mr. Pandey, it shows that
Mr. Pandey, who has reportedly pleaded ignorance of the incidents at Gulberg Society and Naroda
Patiya before the Commission of Inquiry, was actually fully aware of the entire happenings. And that he lied before the Commission (may be also before the SIT).
Mr. Tandon reaches Naroda Patiya at around 12:15 pm, imposes curfew at 12:29 pm in Naroda Patiya
(wireless message is available), and then leaves
Naroda Patiya at about 12:33 pm – within 4

9 minutes of imposing the curfew! At this point a huge mob had already gathered at Naroda Patiya and its intentions to kill and plunder were apparent.
It was for this reason that Mr. Tandon had to order the imposition of the curfew. However, Mr. Tandon made no effort to implement the curfew. He left the place leaving the hapless residents of Naroda Patiya undefended.
After leaving Naroda Patiya, Mr. Tandon goes to
Dariapur & Revdi Bazaar areas where nothing is happening and all is quiet. Thus, Mr. Tandon is neither at Gulberg Society nor at Naroda Patiya despite having full knowledge of the prevailing situation at the two places. He is not present at the place where the crime is taking place despite having sufficient police force at his disposal. He, thus, intentionally abdicates his responsibility and abets the commission of the crime by the riotous mob.
Was this omission on the part of Mr. Tandon a mere act of cowardice or was it an intentional omission to leave the mob to kill, rape and loot? Given that he had earlier been instructed by Mr. P.C. Pandey to
“let things happen”, it is most likely that he fell in line and allowed the pre-planned pogrom to be executed without any obstruction or resistance.

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Gulberg Case: This offence relates to the coldblooded rape and killing of 70 hapless Muslim victims including Ehsaan Jafri, in the heart of
Ahmedabad city, over a 11 hour period on 28 th
February 2002.
(ii) Significantly the SIT has arraigned an additional 25 persons as accused, including K. G. Erda: PI Meghaninagar
Police Station (now promoted to ACP) who was also the Investigating Officer for this case/ offence. However the SIT has totally failed to inquire/ investigate into the circumstances in which repeated calls for police assistance went unheeded, in the very heart of
Ahmedabad city, for almost six to eight hours in broad daylight and whether this was merely criminal neglect or a matter of design.
(iii) P.I. Erda’s phone records show that during the hours of the carnage on 27 th
& 28 th February 2002 he had made regular calls (23 calls: 13 + 10) to the
Police Control Room / Police

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Commissioner P C Pandey, calls (2) to
Joint Commissioner M.K. Tandon & calls
(2) to DCP Gondia. The SIT has apparently not interrogated Jt.
Commissioner Tandon, strongly or thoroughly enough or DCP Gondia or
Commissioner P.C.Pandey (now DGP
Gujarat State) as to the nature of their communicating with PI Erda and the steps they took in the matter or their failure to respond / act. This means that
KG Erda wa sin touch with MK Tandon and therefore Tandon’s making weak excuses about his failure cannor be accepted given his responsibility towards law and order and the state.
(iv) Jt. Commissioner Tandon has admitted to the Nanavati Commission that he was telephonically informed at 2.00 pm that
Ehsaan Jafri was in mortal danger; - he apparently did nothing. Commissioner of Police P. C. Pandey had in fact visited
Gulberg Society at 10.30 am and promised Ehsaan Jafri adequate police protection/ assistance – no such

12 protection was in fact made available.
PC Pandey’s call records indicate that from 2.30 pm to 9.00 pm on the 28 th he was in touch with police officers in charge of these riot hit areas. The SIT does not appear to have questioned
Pandey or Tandon or pursued the matter. (Enclosed copy of M K Tandon’s affidavit before Nanavaty Shah
Commission)
(6) The applicant further says and submits that the allegations in this case are serious, the crimes committed heinous; seven to eight years have passed; the allegations are of downright murder and gender abuse; instigating mobs and stone throwing; tampering with evidence and shielding the officers as far as the two policemen sought to be arraigned are concerned. That despite the fact that this evidence came on record when we found that such serious allegations are being taken lightly by the SIT and even the special PP that no application under 319 is being made by them, that even the Hon Trial Court did not himself initiate such action, that this application was filed.

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(7) That, in such a case where 69 innocents have been slaugheterd in broad day light any person likely to have been involved in the crime should at least have been subjected to trial.
(8) That when the SIT unilaterally on advice of its IO JM
Suthar decided to drop the names of Manish Splender,
Rajesh Ginger, Babu Marwadi and Jagroopsingh Rajput they did not even make a mention of this fact in the chargesheet contrary to law and the requirements of the CRPC. It was only when the section 319 application was filed by us that suddenly a 70 odd page set of documents was preferred before the court
–that too on 6 th January 2010 only not when the application was first filed—and that this set of documents included attempts by IO Suthar to hastily draw up alibis for accused among other documents.
The applicants states that this conduct of the SIT in concealing such vital documents from the charge sheet of the Gulberg society massacre re further adds to the suspicion and charge that the SIT is deliberately concealing critical documents, filing incomplete charge sheets to rush through the trial and in the process protect powerfully connected accused.

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(9) The applicant most respectfully states that the prosecution witness i.e. the applicant has been examined as prosecution witness No.106 at Exhibit: 542, wherein in para-16 the witness he has deposed that the accused No. 38 as per charge, Manish Prabhudas Jain (In S. C. No. 190/09) and
Manish Somabhai Patel @ Manish Splender had caused the death of Gulzarbhai by slashing him with a sword and thereafter had doused him with inflammable liquid. This witness had also stated this fact specifically in his 161 statements recorded by the Special Investigating Team (for short hereinafter referred to as “the SIT”) i.e. the respondent No.2. It is relevant to mention here that the SIT was appointed by the Hon. Supreme Court on 26 th March
2008 on specific and widespread allegations of malafide investigations by the Gujarat police. The applicant and eyewitness had in Court in this statement before SIT also named this accused. The applicant had also identified the other accused Atul Vaidya and Mangilal Jain etc. before the
Trial Court. This witness has also stated in his evidence that
Jagroopsinh Rajput and two other persons had been were seen by him near the railway line and the accused (then PI
Meghaninagar) K.G. Erda was seen by him looking at them and laughing. Thus, this witness had named 3 persons as accused, but the said 3 persons have not been arraigned as accused by the Court. That the 3 persons who have been attributed with specific role by this witness are (1) Manish

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Somabhai Patel @ Manish Splender; (2) Mahendra Pukhraj and (3) Jagroopsinh Rajput.
(10) The applicant most respectfully states that the prosecution witness No.107, Exhibit 548, Rupaben @ Tanaz Dara Modi in para-15 of her evidence has stated that Rajesh Mochi @
Rajesh Jinjer had caused her head injury by pelting stones when he was an active part of the violent mob that had attacked Gulberg society. This Mochi @ Rajesh Jinjer has been subsequently arraigned as accused by the Learned
Judge, vide its order dated 18 th January, 2010.
(11) The applicant most respectfully states that the prosecution witness No.116 Exhibit: 584, Saeedkhan Ahmedkhan
Pathan in his evidence at para-9 has deposed that the mob had climbed on lobby / terrace of house no. 1 and the mob was pelting stones. The mob was instigating many fom outside and among several of those instigated he had identified one Gabbar and Rajesh Jinjer in the mob. Though
Gabbar ( i.e., Jayeshkumar @ Gabbar Maganlal Jinger) has been made an accused No. 14 As per Charge. (In S.C. No.
152/02), Rajesh Jinjer was not arraigned as accused, although the witness had deposed and attributed specific overt acts to him before the Court. That it was the duty of the Honourable Court as well as the respondent No.2 i.e. the Prosecution Agency to immediately file an Application under Section 319 of the CrPC on or around 17 th Nov, 2009.

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(12) The applicant most respectfully states that the prosecution witness No. 128 Exhibit: 633, Mohammed Rafiq Abubaqr
Pathan in para-9 of his evidence has stated that at about
1.30 p.m. when the mob was pelting stones from the house
No.1 belonging to Rajesh Jinjer, this witness had seen
Gabbar i.e. the accused No 14, and Rajesh Dayaram Jinjer as well as others active in the mob attacking people from the society. This witness has further stated in para-9 that in the said mob this witness had identified Manish
Prabhudas Jain i.e. the accused No. 38, Suresh Dhobhi i.e. accused No. 52, Iniyo Harijan who is not an accused, (as per police report Iniyo harijan is now dead) Gabbar accused
No. 14 Ambesh Kantilal Jinger (Mochi) accused No. 32. For inexplicable reasons the respondent No.2 hereinabove had not arraigned Iniyo Harijan as accused. Thus it is a clear apprhension of us, the victims and eyewitnesses that the accused Rajesh Prabhudas Jinjer being a police constable had been protected from prosecution by the investigating agency when despite being named by the witnesses he has not been arraigned as accused in the ongoing trial.
(13) The applicant most respectfully states that the prosecution witness No. 177 Exhibit: 711, Sairaben Salimbhai Sandhi in para-7 of her evidence has stated that she had seen and identified Meghsinh Chaudhari and Jagroopsinh Rajput on the terrace of the office of Meghsinh Chaudhari and that they were clearly instigating the mob to enter into the Society and attack it That Meghsinh Chaudhari is a Lawyer, whereas

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Jagroopsinh is an Ex-Mayor, therefore an influential politician and a lawyer. This witness had also identified Meghsinh
Chaudhari in the Court. In this case, again inexplicably, the investigating agency has charged Meghsingh Chaudhari but not arraigned Jagroopsinh Rajput as accused. The Lawyer Meghsinh has been charged for the offences described by the witnesses.
That this witness had specifically named Jagroopsinh Rajput in her Application sent to the Police Commissioner, way back on
25 th November 2002 as well as her written statement given to the SIT and also in her statement under section 161 of the
CrPC made before the respondent No.2.
(7.1) Moreover, this witness Sairaben Sandhi, Exhibit: 711, has stated in her para-12 of evidence, that she could identify some accused including Manish Splender and few others, who were also studying with her son.
(7.2) This witness in para-19 of her evidence has stated that she had identified Manish Splender and Manish
Prabhudas Jain accused No. 38, who were carrying swords as well as Jayesh accused No. 41, Chirag
Shah accused No. 36, carrying guptis and Babu
Marwadi as well as Bhuriya Mafa Patni As accused in juvenile, carrying “Kerbas” i.e. jerrycans. She has also clearly deposed that she knows both Babu
Marwadi as well as Bhuriyo and that both of them are not joined as accused.
(7.3) Thus, this prosecution witness Sairaben Sandhi has before the Hon. Trial Court specifically named

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Jagroopsinh Rajput; Babu Marwadi and Manish
Splender, specifically attributing criminal and overt acts. However, they have not been charged by
Respondent No.,.2 and arraigned as accused.
(14) The applicant most respectfully states that the prosecution witness No.106, Exhibit-542, Imtiyazkhan Pathan in paras-
20 and 21 of his evidence stated that, the Police Inspector
N.D. Parmar had come to the relief camp on 5 th March 2002 and had taken this witness to the Police Station for inquiry.
This witness had given the details about the assault on the society, the accused identified, the depth of the crime and the police’s abdication of duty to the Police Inspector N.D.
Parmar. During the course of evidence in the Court, this witness found that N.D. Parmar had not written the statement as actually narrated by him.
(15) The prosecution witness No. 107 Exhibit: 548, Rupaben @
Tanaz Dara Modi in para-26 of her evidence states that, on perusing the charge sheet she found that the Police
Inspector N.D. Parmar had not recorded her statement dated 5 th March 2002 correctly. This witness has further stated that her police statement was recorded at
Meghaninagar Police Station by the Police Inspector N.D.
Parmar.
(16) The prosecution witness No. 116 Saeedkhan Ahmedkhan
Pathan Exhibit: 584, has also stated in para21 of his evidence that he was called to the Dudheswar Police Chowky

19 on 5 th March 2002 for recording the police statement and his police statement was recorded on that day and twice thereafter on 11 th March 2002 and again on 9 th March 2002.
After a period of about 3 to 4 months , this witness learnt that his police statement was not recorded correctly and the names of persons mentioned as accused were different from those given by this witness. The police statement was recorded by the then Police Inspector of Meghaninagar
Police Station viz., N.D. Parmar.
(17) The prosecution witness No.159 Exhibit: 635, Firoz
Mohammed Gulzar Mohammed Pathan in para-18 of his evidence has stated that policeman came to the relief camp on 5 th March 2002 and informed him that since his police statement was required to be recorded, , this witness was taken to Dudheshwar Police Chowki from the relief camp.
It was here that this witness had narrated the entire incident and the police had recorded it. Thereafter this witness learnt that the correct facts were not recorded by the police. That the police statements were recorded by the then Police Inspector N.D. Parmar.
(18) The prosecution witness No.142 Exhibit: 654, Ashraf
Shikandar Sandhi in para-14 of his evidence has stated that, his first statement was recorded at Dudheshwar Police
Chowki on 6 th March 2002 and second statement was recorded on 11 th March 2002 at the Meghaninagar Police
Station, which focus on the damage to property. This

20 witness had seen the accused outside the police station, after his statement was recorded on 6 th March 2002 and therefore, he informed his Lawyer about these facts. On perusing the police statement given by his Lawyer to him, this witness found that, the details narrated by this witness to the police, including the names of the accused, were nowhere mentioned in the police statement. And that the police statement was recorded by the Police Inspector N.D.
Parmar of Meghaninagar Police Station.
(19) The prosecution witness No.177 Exhibit: 711, Sairaben
Salimbhai Sandhi, in her evidence at para-24 has deposed that her police statement was recorded at Dudheshwar
Police Chowki on 6 th March 2002 and 11 th March 2002 and her statements were not recorded as narrated by her. That the police statements were recorded by the then Police
Inspector N.D. Parmar of Meghaninagar Police Station.
(20) Thus, the then Police Inspector N.D. Parmar of
Meghaninagar Police Station had not recorded the statement correctly, with a clear motive of safeguarding the interests of the accused. Hence, the Police Inspector N.D.
Parmar has conspired with the accused in protecting their criminal acts. Therefore, the Learned Judge ought to have joined him as accused. That recording of the complaints and police statements wrongly tantamount to tampering with evidence and the said can also amount to gross negligence of duty and criminal misconduct.

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(21) The applicant most respectfully states that the prosecution witness NO.106 Exhibit-542 viz., Imtiyazkhan Pathan has stated in para-18 of his evidence that on his request to then
Joint Commissioner of Police M.K. Tandon that the victims should be allowed to take away the dead bodies of the near and dear ones who had been brutally killed that day, around 5 pm on 28 th February 2002, Mr. M.K. Tandon told that worry about the living and leave the dead to the police.
The prosecution witness No. 116 Exhibit-584, Saeedkhan
Ahmedkhan Pathan has deposed in para-17 of his evidence that when this witness requested Mr. M.K. Tandon to call for the fire brigade, as the house of Ahesan Jafri was set ablaze. Mr. Tandon responded by saying that when the whole of Ahmedabad had been set ablaze and that no fire brigade would be available, and further informed that this witness should save his life rather than caring for others.
That this reflects a sinister and callous attitude of a senior and responsible police officer.
(22) That the prosecution witness No.7 Exhibit-273, Police constable Arvindsinh Shankarsinh Waghela has stated in pra-23 of his evidence that, he had arrived at Gulberg
Society road on 28 th February 2002 between 10.00 a.m. and 10.30 a.m. when Police Inspector Erda was present, and thereafter Joint Police Commissioner M.K. Tandon and
Police Inspector N.D. Parmar arrived along with the striking force and fire brigade, carrying police and splashed water

22 on the mob, so as to disburse the mob. That the witness was standing beside Tandon and Erda. At that time Erda had sought for more police force from Tandon. Erda had also asked Tandon to shift the people residing in Gulbarg
Society to safer place. However, without explanation, though armed with an adequately equipped special striking forces, Tandon took this force away with him and left the place along with the striking force. This witness in para-24 further states that he does not know as to why Tandon has left the place. That this shows inexplicably callous behaviour in a senior officer required to act according to provisions of the law, the Gujarat Police Manual and the
Communal Riot Prevention Scheme.
(23) The applicant most respectfully states that the prosecution witness NO.13 Exhibit-316 viz., Dhanesinh Becharsinh
Kumpawat (ASI) in para-19 of his evidence states that when Tandon came at the scene of offence, PSI Shri Bhati too was present and that Erda had discussed with Tandon about safety and security of residents of Gulbarg Society.
The witness further states that for what-ever reason
Tandon left the scene taking the striking force with him.
(24) This fact is also borne out from the evidence of prosecution witness No.7 Arvindsingh Shankarsingh Waghela and prosecution witness No.13 Dhanesinh Becharsinh
Kumpawat.

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(25) Moreover, as revealed in the evidence of prosecution witness No. 106, Imtiyazkhan and witness No. 116
Saeedkhan Pathan joint police commissione MK Tandon had committed the willfully criminal acts of destruction of evidence because when these witnesses had left Gulberg society, they had requested M.K. Tandon to take away the dead bodies of those killed, but it was Mr. M.K. Tandon who had told the witnesses that they should take care of their lives and leave the dead bodies to him. As per the evidence of the witnesses, at that time the dead bodies could be clearly identified. However, at the time of burial on 3th
March 2002 those dead bodies were found to have been completely burnt to unrecognizable ashes and therefore could not be identified.
(26) The applicant most respectfully states that thus, the Joint
Commissioner of Police Mr. M.K. Tandon had aided and abetted the accused for commission of the offence deliberately and intentionally, with a view to safeguard the interest of the accused.
(27) The applicant most respectfully states that the relevant prosecution witnesses had named the accused in their police statement, affidavit, application, statement before
SIT and computerized statement. However, for what-ever reasons the names of these accused did not appear in the charge sheet.

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(28) That the Ld. Judge ought to have appreciated that the eye witness namely Imtiazkhan Pathan, Exh: 542 has specifically attributed role to Manish Patel i.e., Manish
Splender who caused death of Gulzarbhai. This witness
Imtiazkhan had also mentioned these facts in his affidavit filed on 18 th November, 2002 and his application to the police commissioner dtd. 25 th November, 2002, that
Manish Splender had caused death of Gulzarbhai. That this witness had also repeated the same thing in a typed statement before submitted to the SIT. However, it appears that the respondent no. 2 has for inexplicable reasons wanted to ‘safe guard’ the interest of this accused
Manish Splender and therefore a subsequent statement dtd.
14 th September 2008 exonerating this accused has been written up by JM Suthar IO for Respondent No 2. This is clear from the evidence of Imtiazkhan Exh: 542 para 44 wherein this witness states that his further statement dtd.
14the September 2008 was not recorded. In fact it was only an inquiry made by the officers and no statement whatsoever was actually recorded in the presence of the applicant no. 1 Imtiazkhan as was done on 22 nd May, 2008.
Another eye witness Sairaben Sandhi Exh: 711 in para 12 and 19 of her evidence has attributed presence of Manish
Splender in the mob with deadly weapon i.e., sword.
Sairaben had also alleged in her affidavit filed 14 th
November, 2002, in her application to the police

25 commissioner and the police inspector, Meghaninagar Police
Station has stated the same fact about Manish Splender as well as her statement before SIT that the accused Manish
Splender was armed with sword. That the circumstance that the witness Sairaben, though named the accused Manish
Splender, was purported to have been asked to identify
Manish Splender in an identification parade, coupled with the fact that Imtiazkhan, though had named Manish
Splender in his affidavit as well as statement, the concerned officer of the respondent no. 2 has shown a further statement of the witness Imtiazkhan, though the same was never recorded and he categorically denied the same in his evidence; clearly indicates that concerted efforts were made by the investigating agency to safeguard the interest of the influential accused Manish Splender. That for whatever strange and inexplicable reasons, the respondent no. 2 recorded the so called further statement of Imtiazkhan, which have been denied by the witness in his evidence before the court. That para 46 of the evidence of Imtiazkhan makes it clear that Imtiazkhan had named Manish Splender even in his statement dtd. 22 nd May, 2008 before the respondent no.
2 but the police had not recorded the same. That for whatever reasons the applicant no. 1 was called on
14.9.2008, though only inquiry was made and no statement was recorded. Thus, for more than one reasons its clear that the concerned officer investigating the offence at the relevant time had tried to dilute the case. That the mother of Manish

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Splender i.e., Taraben Somabhai Patel, a municipal corporator of Kubernagar is one of the influential politicians being protected by the investigating agency, respondent No 2..
(29) That the Ld. Judge has materially erred in not impleading the accused Mahendra Pukhraj by rejecting the application u/s 319 Cr.P.C. That the evidence of Imtiazkhan Exh: 542 attributes specific overt act of Mahendra Pukhraj. The Ld.
Judge has materially erred in relying upon the further statement of Imtiazkhan Pathan.
(30) That innumerable judgement by the higher judiciary including this Hon. Court and also the Hon. Apex Court have applied the test of prima facie evidence during the trial as the basic minimum prerequisite threshold for such an application under section 319 of the CrPC.
(31) The minimum threshold level is prima facie proof of the role of the said accused in crimes committed. In this case, moreover is the case of a gruesome mass carnage of 200; trials stayed in 2003; stay lifted after another supposedly independent body was created for re-investigation and further investigation. That the mandate of this specially appointed body, the SIT was to seriously investigate allegations of serious malafide motives in subversion of due process and protection of the accused and that when in previous statements of these witnesses, included affidavits sworn on oath these witnesses have named some of these accused; moreover have thereafter named them in the

27 statements under section 161 taken by the SIT in some cases; named them in the computerized statements submitted to the SIT and thereafter also named them in
their testimony before the court, a thread of consistency in the witness’ stand is borne out. The applicant says and submits that the test to arraign accused under section 319 is that there is prima facie evidence and this prima facie evidence is evidence exists in these previous statements/affidavits and also most crucially the evidence given by witnesses in this Court in the witness box. That the applicants would be pleased to rely upon any of the documents referred to in this revision application.
(32) The applicant further says and submits that the allegations in this case are serious, the crimes committed heinous; seven to eight years have passed; the allegations are of downright murder and gender abuse; instigating mobs and stone throwing; tampering with evidence and shielding the officers as far as the two policemen sought to be arraigned are concerned. That despite the fact that this evidence came on record when we found that such serious allegations are being taken lightly by the SIT and even the special PP that no application under 319 is being made by them, that even the Hon Trial Court did not himself initiate such action, that this application was filed.
(33) That, in such a case where 69 innocents have been slaughtered in broad day light any person likely to have

28 been involved in the crime should at least have been subjected to trial.
(34) That when the SIT unilaterally on advice of its IO JM Suthar decided to drop the names of Manish Splender, Rajesh
Ginger, Babu Marwadi and Jagroopsingh Rajput they did not even make a mention of this fact in the charge sheet contrary to law and the requirements of the CRPC. It was only when the section 319 application was filed by us that suddenly a 70 odd page set of documents was preferred before the court –that too on 6 th January 2010 only not when the application was first filed—and that this set of document s included attempts by IO Suthar to hastily draw up alibis for accused among other documents. The applicants states that this conduct of the SIT in concealing such vital documents from the charge sheet of the Gulberg society massacre re further adds to the suspicion and charge that the SIT is deliberately concealing critical documents, filing incomplete charge sheets to rush through the trial and in the process protect powerfully connected accused.
(35) That the Ld. Judge has materially erred in not impleading the accused Mahendra Pukhraj by rejecting the application u/s 319 Cr.P.C. That the evidence of Imtiazkhan Exh: 542 attributes specific overt act of Mahendra Pukhraj. The Ld.
Judge has materially erred in relying upon the further statement of Imtiazkhan Pathan dtd. 14.09.2008 which

29 appears to have been recorded by the respondent no. 2 merely to exonerate the accused. This witness Imtiazkhan had also mentioned in his affidavit filed on 18 th November,
2002 and his application to the police commissioner dtd.
25 th November, 2002, in his statement the respondent no.
2 dtd. 22 nd May, 2008, he had attributed specific overt act.
It is clear from the evidence of Imtiazkhan Exh: 542 para
44 wherein this witness states that his further statement dtd. 14.9.2008 was not recorded. In fact it was only inquiry made by the officers and no statement whatsoever was actually recorded in presence of the applicant no. 1
Imtiazkhan as was done on 22 nd May, 2008.
(36) That the prosecution witness Imtiazkhan Exh: 542 has stated in para 16 of his evidence that the accused
Jagroopsinh Rajput was present at the scene of the offence and at that time the co-accused K. G. Erda was laughing while looking at him. This fact is also mentioned by
Imtiazkhan in his statement before the respondent no. 2 dtd. 22 nd May, 2002 as well as his computerized statement.
As usual, the respondent no. 2 had tried to exonerate the accused Jagroopsinh Rajput by recording a police statement dtd. 14.9.2008, which was simply an oral inquiry and no questions were put regarding Jagroopsinh Rajput etc, yet the respondent no. 2 had tried to defend this accused by putting a further statement dtd. 14 th Sept, 2008. That the witness namely Sairaben Sandhi Exh: 711 has stated in

30 para 7 of her evidence that Jagroopsinh Rajput along with a co-accused Meghsingh Chowdhry were instigating the mob to enter the society. Both were standing on the terrace of
Meghsingh Chowdhry. This witness had also stated before the respondent no. 2 in her police statement and also named Jagroopsinh Rajput in her affidavit dtd. 14 th Nov,
2002. The Ld Judge has materially erred in accepting the alibi of the accused showing his presence in a nearby court between 11 and 11.15 am which is hardly 2 km away from the scene of the offence. That the Ld. Judge has erred in ignoring the sec. 11 of the Indian Evidence Act. That it takes hardly 5 to 10 minutes to travel from Meghaninagar
Court to the Gulberg Society area of Meghaninagar. Thus the impugned judgment and order of the Ld. Judge is illegal and erroneous and therefore the same is required to be quashed and set aside.
(37) That in the judgment reported in 1997 (1) SCC 283 : AIR
1997 SC 322 it is held as under:
general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in sec. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date: the fact that on that date, A was at Labore is relevant."
convenience when an accused takes recourse to a defense line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which

31 the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide
Dudh Nath Pandey V/s. State of Uttar Pradesh, 1981 2 SCC 166 : (AIR
1981 1 SC 911); State of Maharashtra V/s. Narisingrao Gangaram
Pimple, AIR 1984 SC 63). ”
In the judgment reported in 1999(2) GCD 1271 = 1999 Cri. L. J 2111
(Guj) in the case of Singha Magan Gamit V.s State of Gujarat this
Hon’ble Court was pleased to discard the alibi and convicted the accused.
In the judgment reported in 2002 (1) SCC 351 = AIR 2001 SC 3031 in the case of Munshi Prasad V/s State of Bihar has observed as under:
therefore, it appears that the place of occurrence was at 400-500 yards from the place of Panchayat and it is on this piece of evidence, the learned
Advocate for the State heavily relied upon and contended that the distance was far too short so as to be an impossibility for the accused to be at the place of occurrence - we cannot but lend concurrence to such a submission:
A distance of 400-500 yards cannot possible be said to be 'presence elsewhere' - it is not an impossibility to be at the place of occurrence and also at the panchayat meet, the distance being as noticed above: The evidence on record itself negates the plea and we are thus unable to record our concurrence as regards acceptance of the plea of alibi as raised in the appeal. Before drawing the curtain on this score however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence - witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par

32 with that of the prosecution - a lapse on the part of the defence witness cannot be differentiated and be treated differently than that of the prosecutors' witnesses. ”
Thus, the accused Jagroopsinh Rajput court have remained present in the court as well as near Gulberg Society, considering the distance between the Meghaninagar Court and the ‘scene of the offence’.
(37) That the Ld Judge ought to have appreciated that the accused namely N. D. Parmar was at the material time a police inspector and was required to record the statements of the witnesses correctly. The witnesses Imtiazkhan, Saeedkhan, Firoz
Mohammed Gulzar, Ashraf Sandhi, Sairaben Sandhi and
Salimbhai Sandhi have stated that the police accused N. D.
Parmar had deliberately and intentionally not recorded the true and correct police statements and therefore aided and abetted the accused in commission of the offences. It was only after filing of the charge sheet the witness Imtiazkhan learnt that false statements were recorded by Parmar. The Ld. Judge, unfortunately holds that ‘not recording the police statement correctly’ and ‘had changed the police statement later on’ are different and therefore refused the add Parmar as accused. That it is unfortunate that in a case of a well organized mass carnage where as many as 69 persons have been killed, the Ld. Judge wrongly interprets the meaning of few words spoken in Gujarati.
That in their affidavits the witnesses has stated that the police have changed the statements after the same were actually recorded by the witnesses. However, it was argued that proper statements of the witnesses were not recorded correctly, in respectfully submission of the applicants, this cannot be said to

33 be contradiction at all. Its only after getting charge sheet a witness would know that the police who was writing the police statement had written incorrect police statement and therefore papers carrying their police statements have been thrown so that the charge sheet may contain those statements as actually dictated.
(38) That the Ld. Judge ought to have appreciated that accused
M. K. Tandon was joint police commissioner at the relevant time and as per the evidence of the witness Imtiazkhan Pathan in para
18 of his evidence, this accused Tandon was requested to carry the dead bodies, however, to very shock and surprise, Tandon asked the witnesses to take care of their lives rather than the deadbodies. ! That the witness Saeedkhan Pathan in para 17 of his evidence has stated that on asking Tandon to call for fire brigade, he was asked to save his life as entire Ahmedabad was set ablaze. The witness Arvindsinh Shankarsinh Vaghela in para
23 of his evidence has stated that arrived at the scene of the offence with K. G. Erda and left the place. That the witness
Dhanesinh Becharsinh, a police constable i.e., A. S. I has stated in para 19 of his evidence that the accused Tondon was seen with K. G. Erda. That the witnesses had left the dead bodies at the scene of the offence and the dead bodies could be identified, however, at the time of burial ceremony the dead bodies were totally burnt and therefore could not identify the same. Thus, the accused Tandon must be joined as an accused for aiding and abetting the accused and destroying the evidence.

34
(39). The honorable Supreme Court 2009 (1) G.L.H page no.
114 in the judgment of Pradeepsingh v/s State of Punjab it has been clearly mentioned that, Head Note (A): CRIMINAL LAWS-
Code of Criminal Procedure, 1973- S. 319 – Power of the court to proceed against other persons appearing to be guilty of offence-
Primary object is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same manner as against original accused. (Para 26 to 28)
Head Note [ C] CRIMINAL LAW- Code of Criminal procedure, 1973- S. 173. Report of Police officer on completion of investigation. The report contemplated by this Section should contain the Information required by the said provision investigating Officer is not expected to record findings of fact nor to give clean chit exercising power of a Court. (Para 68 to 70).
1.
2009 Criminal Law General (N.O.C.) on the page no 485 in the judgment of the Allahabad High Court it has been mentioned that,...
HEAD NOTE [B]… Criminal P.C. (2 of 1974) Sc. 161, 162,
319- Plea of alibi- Admissibility- Investigating officer had accepted plea of alibi that revisionist was not present on place of occurrence and was present at ‘P’- Statement recorded u/s.
161 by investigating officer were wholly inadmissible- As it is not substantive piece of evidence- Alleged plea of alibi

35 cannot be taken in account for deciding application moved u/s. 319 Cr.P.C.2007 (5) ALJ 485 (SC) Foll.
[D]… Criminal P.C. (2 of 1974) S. 319- Summoning of additional accused- Validity- Revisionist had initially been named in FIR as accused but not charge sheeted-
Evidence on record showed that revisionist was present and involved in commission of offence along with other accused persons Order of summons issued against revisionist to face trial with other accused persons valid.
2007 AIR SCW 6258, Foll.
2.
2005 Criminal Law General on page no. 1457 in that judgment the honorable Kerala High Court has stated that according to the section-319 of Cri.Po.Co. The application not only the prosecution, but also the complainant witness or the accused can present before the court.
HEAD NOTE: Criminal P.C. (2 of 1974) S. 319(1)-Addition of accused- Petition for under S.319- Can be filed not only by prosecution but also by complainant, witness or even the accused- Power to take cognizance any such person vests with Court- Said power is discretionary in nature.
3.
Apart from the above judgments the honorable court in the below mentioned judgments following Criminal P.C. 319 has given a very clear guideline on which we depend and present the Xerox copy of all the judgments.

36 a) ...2009 Criminal Law General page no. 3978. Supreme
Court. Sarbajeetsingh and others v/s State of Punjab and another. b) ...1979. Criminal law general page no. 333. Supreme
Court. Jogindersingh and another v/s state of Punjab and another. c) …2001 (6) Supreme Court cases- page no. 248.
Rakesh and another v/s State of Punjab and another. d) …2007. Criminal Law General Page no. 3198. Supreme
Court.
Mohammed Shafi v/s Mohammed Rafi and another. e) ...2009 Criminal Law General Page no. 1553.
Rampalsingh and another v/s State of UP and another
(40) The applicant most respectfully states that the applicant has not preferred any other appeal, application or petition with regard to the subject matter of present
Application in any other Court of Law in India, except present Application before this Honourable Court.
(41) The applicant most respectfully states that the applicant has no other equally efficacious alternative remedy available with the applicant save and except by way of preferring present Application before this Honourable
Court.
(42) In the aforementioned premises the applicant most humbly prays before YOUR LORDSHIPS THAT:

37
(A) YOUR LORDSHIPS BE PLEASED TO call for the records and proceedings of Sessions Case No.
152/2002 and allied cases from the Court of
Learned City and Sessions Judge, Ahmedabad and after perusing the same, be pleased to quash and set aside the impugned judgment and order passed below Exhibit-738 dated 18 th
January, 2010.
(B) YOUR LORDSHIPS BE PLEASED TO order that pending admission and / or final disposal of present Application the proceedings of Sessions
Case No. 152/2002 and allied cases being heard by the Court of Learned City Sessions Judge,
Ahmedabad, be stayed, in the interest of justice.
(C) YOUR LORDSHIPS WOULD BE PLEASED TO order that Manish Somabhai Patel @ Manish Splender;
Mahendra Pukhraj; Jagroopsinh Rajput; Police
Inspector N.D. Parmar and Joint Police
Commissioner M.K. Tandon be arraigned as accused in Sessions Case No. 152/2002 and allied cases being tried by the Court of Learned
Additional Sessions Judge, Court No.12,
Ahmedabad, in the interest of justice.

38
(D) YOUR LORDSHIPS BE PLEASED TO order that the
SIT submits all relevant documents related to the investigation before the Trial Court and does not deliberately conceal any evidence documentary or otherwise that is indicting of policemen or powerful accused.
(E) YOUR LORDSHIPS BE PLEASED TO grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice.
AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE APPLICANT
SHALL, AS IN DUTY BOUND, FOR EVER PRAY
AHMEDABAD;
DATED: 19/02/2010.
( M.M. TIRMIZI )
ADVOCATE FOR THE APPLICANT.