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PETITIONER: DILAVER HUSSAIN SON OF MOHAMMADBHAILALIWALA ETC.

       Vs.

RESPONDENT: STATE OF GUJARAT AND ANR.

DATE OF JUDGMENT05/10/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) RAY, B.C. (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR   56            1990 SCR  Supl. (2) 108  1991 SCC  (1) 253        JT 1990 (4)   282  1990 SCALE  (2)788

ACT:     Indian Penal Code: Section 302--Crime emanating from com munal  Frenzy--Law makes no distinction in leading  of  evi- dence  or of its assessment--Held on facts prosecution  left important  lacuna--Failed  to prove  beyond  doubt  dreadful crime committed by appellants.     Terrorist  and Disruptive Activities  (Prevention)  Act, 1985-Section 3(2) (i). Murder Reference for confirmation.

HEADNOTE:     The  agitation  that started in  February  1985  against government  policy  of reservation in the State  of  Gujarat turned  into  communal riots of shocking  magnitude  between Hindus  and  Muslims  in March 1985, and  resulted  in  mass exodus  of Dabgars, a Hindu community, from their houses  in the  affected  locality. When calm was  partially  restored, some  of them returned. Maniben one of the deceased  however continued  to  live in her house with other members  of  her family.     On 9th June, 1985, due to absence of military which  had been  stationed  there, members of minority  community  con- verged  from  two sides and indulged in  most  cowardly  and shameful  act of pushing open the door of  Maniben’s  house, setting  fire to it, and then chaining it from  outside  re- sulting in death of the lady, her two daughters, four grand- children  and son of a neighbour. Next house set ablaze  was of Navin and then many others.     Charge  was framed against sixty three  under  Terrorist and Disruptive Activities (Prevention) Act, 1985 and various offences including section 302, Indian Penal Code. Fifty six were acquitted by the Trial Judge. Those convicted have come up  in appeal. At the same time, a reference has  been  made for confirmation of death sentence.     Allowing  the  appeals and acquitting  the  accused  and discharging reference. this Court, HELD:  (1)  Sentiments or emotions,  howsoever  strong,  are neither 109 relevant nor have any place in a court of law. Acquittal  or conviction depends on proof or otherwise of the criminologi-

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cal  chain which invariably comprises of why,  where,  when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or  loos- ening  in it weakens the prosecution. Each link must  be  so consistent  that  the only conclusion which must  follow  is that the accused is guilty. Heinousness of crime or  cruelty in  its  execution howsoever abhorring  and  hateful  cannot reflect in deciding the guilt. [110H; 111A-B]     (2)  Credibility  of witnesses has to be  measured  with same  yardstick, whether it is an ordinary crime or a  crime emanating  due  to communal frenzy. Law does  not  make  any distinction either in leading of evidence or in its  assess- ment. [111C]     (3) To bring home the guilt the prosecution was required to  prove the presence of witnesses, possibility  of  seeing the  incident by them and identification of the  appellants. [115C]     (4)  From  the location of Ambalal’s house it  is  clear that one could see front of Maniben’s house only if he stood in front of it with face towards west-south. But that is not the prosecution case. In fact prosecution is silent on  this aspect.  There  is no whisper of the place  from  where  the incident was seen by the witnesses. Was it front of house of Ambalal  or inside or roof? This was very relevant as  every witness  admitted that from interior of Ambalal’s house  the front of neither Maniben’s nor Navin’s house could be  seen. Evidence thus regarding possibility of seeing the appellants from house of Ambalal is very shaky. The prosecution left an important lacuna. [116A-C]     (5) Indentification of accused from out of the mob  even if  they  were known from before  becomes  highly  doubtful. [116G]     (6) The finding of the Judge that even though the  house of Ambalal is slightly obliquely situated as compared to the house  of Maniben, it would not at all be difficult for  the witnesses who had hid themselves in the house of Ambalal  to have  correctly  identified  the accused, is  not  based  on appreciation of evidence but on imagination. [117G-H]     (7)  The prosecution version suffered from  serious  in- firmity. Its failure to bring on record evidence which could establish the possibility or even probability of the witness seeing the occurrence demolishes the whole structure. [118A] 110

JUDGMENT:     CRIMINAL  APPELLATE.JURISDICTION: Criminal  Appeal  Nos. 259-64 of 1987.     From  the  Judgment and Order dated 20.4.  1987  of  the Designated Court, Ahmedabad in Terrorist Criminal Case No. 3 of  1985 with Terrorist Criminal Case Nos. 13 of 1985 and  6 of 1986. T.U. Mehta, A.S, Quereshi, Salman Khurshid, S.H. Kureshi, Mrs.  Vimla Sinha, Ifshad Ahmed, Imtiaz Ahmed,  Gopal  Singh and S.M. Qureshi for the Appellants.     P.S.  Poti, M.N. Shroff, Anip Sachthey, Bimal Roy,  Kai- lash  Vasdev,  Ms.  A. Subhashini, Chava  Badri  Nath  Babu, Girish Chandra, Biman Jad and Ashish Verma for the  Respond- ents. The Judgment of the Court was delivered by     R.M.  SAHAI, J. Tragic trauma of ghastly, in  human  and beastly behaviour of one community against another  depicted for weeks and weeks, in this criminal appeal, forcefully, at times,  emotionally  still hangs heavily.  What  a  tragedy?

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Eight  human lives roasted alive. Five in waiting  for  gal- lows. Neighbours residing peacefully for generations sharing common  happiness and sorrow even playing  cricket  together suddenly  went mad. Blood thirsty for each  other.  Burning, looting  and  killing became order of the day.  Even  ladies attempted  to prevent fire brigade from extinguishing  fire. How pathetic and sad.     Still  sadder was the manner in which the  machinery  of law moved. From accusation in the charge sheet that  accused were  part of unlawful assembly of 1500 to 2(100 the  number came  down  to  150 to 200 in evidence and  the  charge  was framed  against sixty three under Terrorist  and  Disruptive Activities  (Prevention) Act, 1985 (in brief TADA  Act)  and various  offences including Section 302 under  Indian  Penal Code. Even from that fifty six were acquitted either because there  was  no evidence, and if there was  evidence  against some it was not sufficient to warrant their conviction. What an affront to fundamental rights and human dignity.  Liberty and  freedom of these persons was in chains for more than  a year. For no reason. One even died in confinement.     All this generated a little emotion during  submissions. But  sentiments or emotions, howsoever, strong  are  neither relevant nor have any place in a court of law. Acquittal  or conviction depends on proof 111 or  otherwise of the criminological chain  which  invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecu- tion.  Each link, must be so consistent that the, only  con- clusion  which  must follow is that the accused  is  guilty. Although guilty should not escape. But on reliable  evidence truthful  witnesses  and honest and fair  investigation.  No free man should be amerced by framing or to assuage feelings as  it is fatal to human dignity and destructive of  social, ethical  and legal norm. Heniousness of crime or cruelty  in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt.     Misgiving,  also, prevailed about appreciation  of  evi- dence.  Without adverting to submissions suffice it to  men- tion  that credibility of witnesses has to be measured  with same yardstick, whether, it is an ordinary crime or a  crime emanating  due  to communal frenzy. Law does  not  make  any distinction either in leading of evidence or in its  assess- ment.  Rule is one and only one namely, if  depositions  are honest  and true: Whether the witnesses, who claim  to  have seen  the incident in this case, withstand this test is  the issue?  But  before that some legal  and  general  questions touching  upon veracity of prosecution version may  be  dis- posed of.     Trial under TADA Act was assailed, both, because of  the Act  being ultra vires of the fundamental  right  guaranteed under  Constitution and absence of circumstances  justifying its  extension  to the State of Gujarat. For the  latter  no foundation  was  laid therefore it was not permitted  to  be raised.  And  the  former is  awaiting  adjudication  before Constitution Bench from where this appeal was got  delinked. Invoking  of provisions of TADA Act, in communal  riot,  was attacked  and  it was submitted that a combined  reading  of Sections 3 and 4 with explanation indicated that the  Legis- lative intention was to confine the applicability of the Act to  secessionist or insurgency activities against the  State and not to ordinary crimes for which provisions exist in the Penal  Code. Since the Constitution Bench is already  ceased of  the matter we are of the opinion that these aspects  too

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can, well be raised there.     From  acquittal  of  thirty seven accused  for  lack  of evidence  even  though they were arrested  in  rounding  off operation  by  the military, after cordoning  off  the  area immediately  after  the incident, it was  vehemently  argued that it demonstrated that prosecution was not fair and there was  deliberated  attempt  to rope in  appellants  who  were well-to-do persons of the community not because they had any hand in 112 the crime but for extraneous reasons. It was emphasised that if persons arrested on the spot residing in the same locali- ty  could not be identified nor any evidence could  be  pro- duced  against them then it was clear that the case  against the appellants was also not trustworthy and they were impli- cated  either  because  of enemity or  for  oblique  motive. Although  the  argument did appear to be attractive  on  the first flush but it was dispelled soon by the learned counsel appearing  for the State who submitted that the  mistake  in charge-sheeting  those  accused  along  with  appellant  was bloated out of proportion. According to him the incident for which  the appellants have been convicted and sentenced  was part  of a different transaction, although it took place  on the  same day, than the incident in which thirty seven  per- sons  were rounded off. The learned counsel  explained  with help  of  Colonel  Sudhakar PW 21’s statement  and,  in  our opinion,  rightly,  that these arrests were made  in  conse- quence of action taken by the military, on a different  mob, as it included many ladies who did not form part of  earlier mob, while attempting to bring situation under control after the  incident.  Therefore, it is not possible  to  draw  any adverse inference against prosecution on this score.     Time,  place, background and manner in  which  dastardly crime  was committed on 9th June, 1985 in broad daylight  at 2.30  p.m. was by and large not in dispute. What started  as agitation  in  February 1985 against  government  policy  of reservation, in the State of Ahmedabad, turned into communal riots  between Hindus and Muslims in March, 1985 which  went on, continuously, for long spell resulting in enormous  loss of  life  and property of both  the  communities.  Situation deteriorated  so  much that military had to  be  called  and stationed  in  sensitive areas, in  April,  1985,  including Dhabgarwad, a large area with Hindus and Muslims residing at places  side by side and others exclusively. In  March  1985 riot  of  shocking magnitude had taken place  in  this  area resulting in mass exodus of Dabgars, a Hindu community,  who earned their livelihood by manufacturing musical instruments such  as drums and also umbrellas and kites. When  calm  was partially  restored,  due to the military  being  stationed, some of them returned and some used to visit their houses in day time to look after their property or business.  Maniben, a  dabgar, whose one of the daughters had married  a  muslim but  was  having strained relations with him,  continued  to live  in her house either because she had no other place  to go or she was confident that she shall not be harmed. Howev- er despite stationing of military incidents went on whenever or wherever least opportunity was available with the  result that curfew was clamped, continuously, in the area from  7th June, 1985. As ill luck would have it the military stationed in 113 the area left for some other place at about 1.30 p.m. on 9th June,  1985. Taking advantage of the vulnerability,  due  to absence of military. members of minority community converged from  two  sides and when they intermingled  in  the  corner

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somewhere  near the house of Maniben or electric power  sub- station  they indulged in most cowardly and shameful act  of pushing  open the door of her house setting fire to  it  and then  chaining  it from outside resulting in  death  of  the lady,  her two daughters. four grand-children and son  of  a neighbour. Next house set ablaze was of Navin and then  many others.     Prosecution  version can thus be divided in three  parts one,  entry of mob from two sides one from Magadom Pole  and other  kalupur  Panchpatti  shouting  ’kill’  ’cut’  pelting stones,  throwing  acid  bulbs and flambeaus  on  houses  of Hindus  while approaching towards Nani Ali Pole. The  second was meeting of the two groups on the corner of Nani Ali Pole and  then pushing open the door of Maniben’s house  by  five appellants  armed with burning flambeau, iron  pipe,  stick, kerosene  and  bottle of petrol sprinkling  of  kerosene  or petrol inside the house setting it ablaze then coming out of the house closing and shutting the door and chaining it from outside. The third was entry of appellants thereafter in the house of Navin setting it on fire and then entering in  Nani Ali  Pole with other members of mob and attacking houses  of Kantilal, Kalidas and others.     To prove it the prosecution examined twenty two witness- es which were grouped by the trial judge in seven’. One  and the main group consisted of Navin PW 1, Ambalal PW 8,  Rati- lal  PW 9, and Kalidas PW 13. These were the  witnesses  who were  ’said to have collected at the house of  Ambalal  from where they witnessed the occurrence and the participation of the appellants in it. The second group consisted of  Kalidas PW  7,  Ramanlal PW 10, Manchharam PW 12, who were  said  to have witnessed the incident from the house of Kalidas  Chha- ganlal.  The  third group consisted of Arun Kumar  PW  I  1, Jaswantlal  PW 14, Dilip Kumar PW 17 and Sanmukhbhai PW  20, who  were witnesses who are said to have arrived on  hearing the  shouts and commotion and witnessed the occurrence  from near  Dabgarwad Police gate. The other groups  comprised  of official witnesses.     No  witness was examined from any of the house  situated on  either side of road from where the two mobs  entered  or from any of the houses ,situated on the route through  which the. mob passed before it reached/the comer of Nani Ali Pole to  establish  identity of accused. Mod which  entered  from Magadom Pole side was admitted by 114 Ambalal  to have passed from,the front of his house. But  he stated  that  he  could not recognise anyone  out  of  them. Appellants  according to prosecution were in the  mob  which came from Kalupur Panchpatti. From the place from where  the mob  entered and to the corner of Nani Ali Pole the mob  had to  pass from a long route which is inhabited by  houses  on both  sides  but not one witness was produced  from  any  of these  house nor it was clearly brought out that inmates  of all these houses were of minority community only.     For  the  second  group of witnesses  who  according  to prosecution, saw the occurrence from the house top of  Kanti Lal the Judge himself found that they were not in a position to see the road in front of house of Navin nor they were  in a position to see the road in front of house of Maniben. He, therefore, observed that so far evidence of these  witnesses in  respect  of attack by the mob on house  of  Maniben  and Navin was concerned it could be relevant only generally that they set fire to the house. That is they could not be  taken to be witnesses to prove that appellants broke open the door of  Maniben’s  house or set fire to it or  chained  it  from outside.

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   Nor is the evidence of third group of witnesses  helpful as  they  had  collected near the gate  of  police  outpost. Distance  between the gate and place of incident appears  to be  not less than 200 to 250 feet. Moreover  they  collected after  the  house  of Maniben was set on fire.  And  it  was admitted  by  PW  1, 8, 9 and 13 that the  house  of  Navin, Kantilal,  Ambalal  could not be seen from  police  outpost. Their testimony thus cannot be taken into account for  prov- ing  second part of the incident which resulted in death  of inmates of Maniben’s house.     Fate of the appellants, therefore, hangs on  credibility of first group of witnesses. For its better appreciation  it is  necessary  to  set out topography of the  place  of  the incident. From the map it is clear that the house of Maniben alongwith  cluster of six other houses in surrounded on  all sides  by  lanes and roads. Immediately above her  house  is house of Navin in North. Then there are two houses, parallel to  each other, in south of her house. There are three  more houses one after the other, in south. On west side of  these is  lane.  So is a lane in north side after which  there  is electric sub-station. On the left of substation there is gap and then there is one house and in its north is the house of Kantilal.  On the east of Maniben’s house is  the  Dabgarwad road which runs somewhat in semi circle running from Kalupur Panchpatti  situated  in extreme south  east  towards  west, taking turn from near Dabgarwad Police outpost in the  South moving up towards 115 north  east  in angle tilting slightly from  somewhere  near cluster of houses round Maniben’s house and then  proceeding towards  Daryapur. House of Ambalal from where first set  of witnesses had seen the occurrence is on this road from where the road tilts. It was admitted by PW 1 that house of  Amba- lal  was obliquely situated. That is clear from the  map  as well.  If  from the two ends of the house, south  and  north facing  the road straight lines are drawn towards west  they shall  pass through the lane in front of Navin’s  house  and power station respectively. Navin PW 1 whose house is  situ- ated  in  north of Maniben’s house  admitted  that  electric sub-station  was in front of Ambalal’s house. Rati Lal PW  9 stated  that  on one side of the road was his house  and  on other of Ambalal. The house of Ambalal was thus above  Mani- ben’s house towards north-east.     To bring home the guilt the prosecution was required  to prove  the presence of witnesses, possibility of seeing  the incident  by  them  and identification  of  the  appellants. Importance  of  first arose as due to riots  in  March  1985 there  was mass exodus of Hindus from  Dabgatwad.  Therefore presence  of these witnesses was attempted to be  challenged as curfew having been imposed from 7th June and Col.  Sudha- kar,  PW  21, incharge of Military stationed, in  the  area, having  stated that no passes were issued to anyone  it  was not  probable  that any of the witnesses who claim  to  have seen the occurrence could have been present. But it  appears to be devoid of any merit in view of unimpeachable testimony of  the  witnesses that they were present  in  their  houses either  because they had come earlier after  restoration  of partial  calm or they had come on the day of  occurrence  to see their business and they were not prevented by the police even  if they did not have any pass. The Judge had  examined this aspect in detail and found from various  circumstances, namely,  restoration  of  partial calm due  to  presence  of military  personnel,  death of eight  persons  in  Maniben’s house  including children, rescuing of many persons  trapped in  the house of Kalidas Chhagan which too was set on  fire,

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admission  by accused in their statements under section  313 Criminal Procedure Code etc. that presence of these witness- es  could  not be doubted. Further if the  Dabgads  had  not returned and the area was deserted then where was the  occa- sion for the mob to indulge in this vendetta.     But mere presence of witnesses was not sufficient.  More important  was if they saw the incident. It  assumed  impor- tance due to two reasons one because entire set of witnesses saw  the incident from house of Ambalal which  was  situated upwards  on the road towards north-east as compared  to  the house of Maniben, and second that each 116 of the witnesses including Ambalal admitted that the exteri- or of Maniben’s or even Navin’s house could not be seen from interior of the house. From the location of Ambalal’s  house it is clear that one could see front of Maniben’s house only if he stood in front of it with face towards west-south. But that  is  not the prosecution case. In fact  prosecution  is silent on this aspect. There is no whisper of the place from where  the incident was seen by the witnesses. Was it  front of  house of Ambalal or inside or roof. Prosecution did  not make  any effort to remove this defect,  obviously,  because the  investigation itself suffered from  this  flaw.Although the defence, also, did not make any attempt to get it clari- fied,  may  be as a part of clever design as to  from  where these witnesses saw the occurrence but the disadvantage,  if any  is  of prosecution. As stated earlier,  this  was  very relevant  as  every witness admitted that from  interior  of Ambalal’s  house the front of neither Maniben’s nor  Navin’s house could be seen. Evidence thus regarding possibility  of seeing  the appellant from house of Ambalal is  very  shaky. The prosecution left an important lacuna.     Unfortunately, each witness’ not only stated that he saw the appellants but they went on to describe with  remarkable similarity  in detail the article which each accused had  in his  hand: What is surprising is that accused had come  from Kalupur  side therefore they could not have been seen  prior to  their  arrival near electric  sub-station  before  which everyone  had  entered house of Ambalal yet it is  they  and they alone who could be identified from the entire mob. PW 1 admitted that when he rushed from his house in fear the  mob of  Kalupur  side was 40 or 50 feet away. He  also  admitted that he saw these accused for the first time from the  house of Ambalal from a distance of 20 feet. No subsequent witness tried to explain it. Others had reached admittedly prior  to Navin.  Therefore, they could not have had occassion to  see the Kalupur mob and if they saw then it must have been at  a longer  distance.  Statement of PW 9,  therefore,  that  the appellants  were  leading the mob is very  difficult  to  be accepted.  And if they saw for the first time from house  of Ambalal, as stated by Navin and not improved upon by others, then  it  is very difficult to accept that they  could  have identified  these appellants. PW 1 further admitted that  if anyone stood with his face towards house of Maniben his then his back only could be visible from Ambalal’s house. That is clear from map as well. Therefore identification of  accused from  out  of the mob even if they were  known  from  before becomes highly doubtful.     Out  of  persons who had collected at house  of  Ambalal only  four were examined. It was admitted by  every  witness that the last to enter 117 the house were Navin and his father. Time of entry as  given by  witnesses  was before mixing of the mob  at  the  corner except  Ambalal  who stated that he came after the  mob  had

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collected.  But that appears to be improbable as he  was  so scared that he ran with his father without even closing door of  his  house. And if he would have come out when  mob  had collected then it is difficult to believe that he would have been  spared  when his house too was burnt.  Navin  was  the first witness to be examined. He stated, categorically, that when  he  entered the house of Ambalal it  was  closed  from inside. It was attempted to be improved upon by Ambalal  who stated  that  he kept the door ajar. But apart  from  normal human  behaviour  to close the door, for protection  in  the background of incident of March and fear generated by  shout of ’kill’, and ’cut’, the other witnesses PW 9 and PW 13 too stated that the door was closed after entry of Navin. In any case  the incident having taken place after entry  of  Navin and  the door having been closed thereafter or even ajar  or half  closed it was necessary for prosecution  to  establish how did the witnesses see the occurrence when they  admitted that the exterior of Maniben’s house or even of Navin  could not  be seen from inside of Ambalal’s house. The  deficiency in prosecution version was attempted to be explained by  the judge  by  adverting to evidence of PW 13 that  Ambalal  was opening  and closing the door every now and then,  therefore there  was nothing improbable in witnesses having  seen  the occurrence. But the approach was, both, faulty and  illegal. The  conclusion  by  picking up  isolated  sentence  without adverting to other parts of his statement where he  admitted that  after  entry,  of all, the doors  of  the  house  were closed,  and,  he was able to identify the  appellants  when they  were effecting entry in house of Maniben and  that  he did  not identify anyone out of the mob till he entered  the house  of  Ambalal was contrary to rule of  appreciation  of evidence.  Reading  the whole statement  together  makes  it consistent  with evidence of other witnesses and  leaves  no room for doubt that opening and closing the door was resort- ed to let in the persons who were reaching house of  Ambalal due to fear of mob. And the exercise of opening and  closing being over after entry of Navin seeing the mob or  identify- ing the accused in process of opening and closing was out of question. The finding of the judge, thus, that ’it is not as if that once the door of the house of Ambalal was closed  it was  never  opened again at any time  before  these  persons escaped  from the house of Ambalal  .....   Therefore,  even though  the house of Ambalal is slightly obliquely  situated as compared to the house of Maniben, it would not at all  be difficult for these witnesses who had hid themselves in  the house of Ambalal to have correctly identified the  accused’, is not based on appreciation of evidence but on imagination. 118     Thus prosecution version suffered from serious  infirmi- ty.  Its  failure to bring on record  evidence  which  could establish the possibility or even probability of the witness seeing the occurrence demolishes the whole structure.  Since it was admitted to all the P.W.s that the exterior of  Mani- ben’s  house  could not be seen from interior  of  Ambalal’s house the prosecution could succeed in establishing its case only  if it could prove that witnesses even then could  have seen  the  occurrence. The only possibility  of  seeing  the occurrence  could  be either from the road  or  standing  in front  of  Ambalal’s shop or if there was  any  source  from inside  house  of Ambalal. Evidence is lacking  for  either. Possibility of the first two alternative from where incident could  have been seen is out of question. Witnesses were  so terrified due to incident of March 1985 that they could  not remain  outside. PW 1 was so afraid that he rushed with  his father  without  even closing door of his house. And  if  he

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would  have come out when mob had reached house  of  Maniben was  stated  by  Ambalal then there would  have  been  every possibility  of  his being attacked. PW 9 and  13  too  were afraid  and  rushed  to Ambalal’s house.  Every  time  these witnesses reached the door was opened and after entry it was closed. Last man to enter was Navin Chandra. No witness  has stated  that  it  was opened thereafter even  once  to  look outside.  How did then these witnesses see pushing  open  of Maniben’s door by appellants, setting fire to her house  and chaining from outside. It was for prosecution to explain. It could  not be taken for granted merely because each  witness repeated  that  they knew the appellant from  childhood  and each  of  them was armed with articles  mentioned  in  their hand. Ambala1 did state that the door of his shop had  seven planks joined by hinges. But the prosecution stopped  there. It did not dare to come out with the case that the witnesses saw  from  the crevices. Therefore the  prosecution  version suffered  from  a  lacuna which was fatal.  The  doubt  thus created  if  the  witnesses saw the  occurrence  at  a11  is strengthened  by subsequent conduct and behaviour  of  these witnesses.  The prosecution version was that the moment  the mob  moved from house of Maniben to house of  Navin  Chandra towards Nani Ali Pole side the witness came out of Ambalal’s house  and dashed towards police gate where large number  of persons had collected. But strangely not one of them told it to  anyone  present there or even to police  personnel  that Maniben’s  house  was burnt by appellants.  It  was  against normal human behaviour as all the appellants were known from before. The incident had taken place due to communal frenzy. It  is,  therefore,  difficult to believe  that  once  these witnesses reached Dabgarwad Police gate they would not  have shouted  at top of their voice that the appellants known  as Lallewallas  had killed Maniben. What is further  surprising is that they did not disclose the 119 names  even to Manchharam whose son had been burnt alive  in house  of  Maniben, nor to anyone in the hospital  and  kept their mouth sealed till 11th June 1985 and opened it for the first  time in the Police Station when their  statement  was recorded  giving graphic description step by step. Not  only that  the  PW 9 and 13 broke down in cross  examination  and admitted that they had not seen the appellants setting  fire to the house of either Maniben or Navin. They were saying so by inference as they had seen smoke coming from the  houses. Thus  witnesses and circumstances both are against  prosecu- tion  version. Although there are contradiction on  material aspects  in statement of these witnesses and arguments  were addressed on late recording of evidence, failure to  produce the  Chief Fire Officer, to establish if house  was  chained ’from  outside, delay in preparation of panchnama  of  Mani- ben’s  house etc. but we consider it unnecessary to  discuss them  as  the prosecution, in our opinion, failed  to  prove beyond shadow of doubt that the dreadful crime was committed by  appellants. There is thus no option but to acquit  these accused.  We, however, hope that our order shall bring  good sense to members of both the communities residing in Dabgar- wad and make them realise the disaster which such  senseless riots result in and they shall in future take steps to avoid recurrence of such incidents and try to resort to the atmos- phere that prevailed before March 1985.     For  the reasons stated above all these appeals  succeed and are allowed. Reference No. 1 of 1987 for confirmation of death  sentence is discharged. The conviction and  sentences of appellants herein under section 3(2)(i) of Terrorist  and Disruptive  Activities  (Prevention)  Act,  1985  read  with

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section  34 of the Indian Penal Code, 302 Indian Penal  Code read  with sections 34,436/149, 449, 143 and 148  of  Indian Penal  Code  are set aside. The conviction and  sentence  of Haroon S/o Kalubhai Laliwala, under section 3(2)(ii) of  the TADA Act 1985 is also set aside. The appellants shall be set at  liberty forthwith unless they are required in any  other connection. R.S.S.                                               Appeals allowed. 120