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PETITIONER: AHER BHAGU JETHA

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT27/11/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR  292            1974 SCR  (2) 477  1974 SCC  (3) 653

ACT: Practice and Procedure Criminal trial--Case with a  communal background-Assessment of evidence.

HEADNOTE: A  riot  which  was alleged to have  a  communal  background resulted  in  the  death  of  a  person.   The  trial  court convicted  the appellant and some others under s.  302  read with  s.  149, I.P.C. The High Court, in  appeal,  convicted only  the  appellant under s. 3020. The  High  Court,  while discarding  the case of unlawful assembly as set up  by  the prosecution held the appellant guilty of murder only because the  appellant  was found lying injured near  the  scene  of occurrence  and had pleaded that he was attacked by a  group of members of the Muslim community. Allowing the appeal to this Court, HELD  : The High Court had not given due importance  to  the fact  that the appellant had serious injuries on  his  body. The  High Court dismissed his statement that he had  only  a stick with him without examining the credibility of his ver- sion  which was supported by the fact that only a stick  was found  near him; while the only injury on the  deceased  was caused by a sharp edged weapon.  It is not uncommon in cases of  a  communal nature to find witnesses coming  forward  to depose  falsely about an attack by a person who is  believed to be guilty, and, partisan witnesses may depose falsely out of  a mistaken or misplaced sense of group loyalty.  In  the present  case,  the participation of the  appellant  in  the occurrence  might have seemed to the witnesses to have  been established by his having been found lying near the scene of occurrence  in an injured condition.  This may be enough  to convince  unsophisticated persons of his complicity  in  the murder,  but a court of justice has to sift and analyse  the evidence  very  carefully,  particularly in a  case  with  a communal  background, to determine whether the case  against the accused is established beyond reasonable doubt. [479E-F; 480B-D)

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  151 of

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1970. Appeal  by Special Leave from the judgment and  order  dated the  25th March 1970 of the Gujarat High Court at  Ahmedabad in Criminal Appeal No. 517 of 1969. N.   P. Maheshwari, for the appellant. S.   N.  Anand,  M.  N.  Shroff and S.  P.  Nayar,  for  the respondent. The Judgment of the Court was delivered by BEG.   J.-The appellant, Ahir Bhagu Jetha, is one of the  18 persons  charged  with the Offence of  rioting,  armed  with deadly weapons, on, 28th of June, 1968 ’ at about 7 30 p. m. at  the  village Kumbharia in the State  of  Gujarat.   This riot,  which was alleGed to have a communal background,  was said  to  have  resulted  in  simple  injuries  to   several persons,  grievous  injuries  to others, and  the  death  of Lalmamad Murvaji. The Sessions Judge of Kutch, who tried the case, acquitted 9 accused  persons and convicted the rest of various  offences said to have been committed in the course of the riot.   Out of those, six accused persons, including the appellant, were convicted under Section 302, 5--602 Sup.CI/74 478 I.P.C.  read  with  s.  149,  I.  P.  C.  and  sentenced  to imprisonment  for life.  On an appeal to the High  Court  of Gujarat,   the  whole  story  of  riot,  as  set   up,   was disbelieved.   Seven convicted persons were acquitted.   The appellant  alone  was convicted under s. 302, I. P.  C.  and sentenced  to life imprisonment.  Another accused,  who  did not  appeal,  and who was convicted under s. 324, I.  P.  C. only and sentenced to 9 months rigorous imprisonment and  to pay a fine of Rs. 300/is not before us.  We are,  therefore, concerned  only  with the case against Bhagu Jetha  who  has been  convicted by the High Court for an offence  punishable under  s.  302,  I.  P. C.,  although  he  was  charged  and convicted of an offence punishable under s. 302 I.P.C.  only with  the aid of s. 149 I. P. C. As the charge  for  rioting failed,  he was not and could not be convicted with the  aid of  s. 149 I. P. C. No separate charge was framed  under  s. 302  I. P. C. simpliciter.  We need not consider the  effect of  the  omission  in this case as  we  are  satisfied,  for reasons  given below, that the appeal must be allowed on-  a bare examination of allegations and evidence in the case. The two groups, between which tension existed, prior to  the occurrence,  consisted of Ahirs, who are Hindu,  and  Samas, who are Muslims, over the taking out of "tazia"  processions during  Mohurrum.  On the day of occurrence,  Bhuraii  Ravii and  Ranaji Viraji, of the Samas community, were said to  be sitting  at   the trance of the Samas  locality  when  Govan Mandam,  an  Ahir, objected to it on the  ground  that  Ahir womenfolk  had to pass that way for fetching  water  Bhuraji and  Ranaji were alleged to have expostulated and said  that they  were  doing no wrong in sitting outside in  their  own locality and that the Ahir ladies are like their own sisters and  daughters  to  them.   It is  said  that  the  deceased Lalmamad  then  appeared at the scene and took the  side  of Bhuraji and Ranaji.  Thereupon, Govan Mandan (acquitted)  is alleged  to  have dragged Lalmamad towards a  dunghill.   At that time, a number of Ahirs are said to have collected  and fallen upon Lalmamad,who was thus said to have been done  to death.   It  was  also alleged that Ahirs  threw  stones  at members of the Samas community, as a result of which Bhuraji and  Ranaji were injured.  One Nandaji, who is said to  have tried  to  save  Lalmamad,  is also  alleged  to  have  been injured.   Shrimati Jambai, P. W. 8., the wife  of  Nandaji,

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who  is alleged lo have come to the scene of occurrence  and covered  her husband, was also injured An F.I.R. was  lodged at  noon  on  29-6-68 by a cousin of  Lalmamad  who  alleged having  seen  the attack on Lalmamad and to have  been  near Lalmamad  (deceased)  when  he was actually  struck  by  the appellant  by  a Dharia.  In this F.I.R. only  four  accused persons,   including  the  appellant,  are  mentioned,   and Lalmamad,  Ranaji  and  Nandaji,  are  shown  to  have  been injured.   No injuries on the person of the  appellant  were mentioned. The  High  Court,  in  the  course  of  a  fairly  elaborate judgment,  came  to the conclusion that the  origin  of  the incident  set up, intended to suggest that the Ahirs  picked up  a quarrel deliberately by saying that their  women  folk were  to  take  water  from the  Samas  locality,  was  most improbable  in view of the previous tension and division  of the   village   into  Ahir   and   Samas   compartmentalised localities.  It pointed out that no quarrel over the  taking of water from any well or 479 pond  from  the Samas locality by Ahir women folk  had  ever before taken place.  It also came to the conclusion that the story  that  the Lalmamad was dragged 50 feet by  the  Ahirs before  he  was  assaulted  and  killed  was  untrue.    The postmortem report shows that there were no marks of dragging on  the body of Lalmamad.  No clothing of the  deceased  was proved to be torn.  It pointed out that all the  prosecution witnesses  spoke  of an attack upon  the  deceased  Lalmamad begun  by  a  heavy blow on the head given  by  Megha  Bhima (acquitted  accused person) with a Lathi which had  an  iron ring  attached to it.  This version was belied by  the  only injury  with  a  sharpedged  weapon found  on  the  body  of Lalmamad (deceased).  The serious injuries of the appellant, who was also found lying on the road, could not be explained by the prosecution version.  It was also found that a  stick and not a Dhariya was found lying beside the appellant.   No one  spoke of the Dhariya, alleged to have been used by  the appellant, having been taken away from the scene by anybody. Therefore, the whole story of an attack by the appellant  on Lalmamad, deceased, with a Dhariya, either in the course  of the riot or after it, became most improbable. The  High  Court, while discarding the case of  an  unlawful assembly,  as  set  up by the evidence  of  the  prosecution witnesses,  had  held  the  appellant  guilty  of  murdering Lalmamad  only because the appellant was  undoubtedly  found lying  injured  on  the spot and had  pleaded  that  he  was attacked  because  he had objected to the beating of  a  boy named  Duda  Pachan  by  a group of  members  of  the  Samas community  approaching  with Dhariya,  spears,  sticks,  and axes.   The  High  Court had found that  the  appellant  had serious injuries on his body.  We think that the High  Court had not given due importance to this fact and had  dismissed the statement of the appellant that he had only a stick with him,  without  examining  the credibility  of  this  version supported by the fact that only a stick was found lying near the appellant who was so badly injured that he could not get up. There was only one injury found on the body of Lalmamad.  It was  described  as  follows by Dr. D.  A.  Joshi,  who  also performed the postmortem examination :               "There  was  only  one  injury  on  the   neck               mentioned  in  the column No. 7.  The  mustoid               bone was not fractured.  The wound was 9" long               4" broad and 3" in depth.  The place where the               impact of the weapon would take place will  be

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             deeper.  The depth of the wound 3" shown by me               is the maximum depth which I found and it  was               at  the back of the neck.  The breadth of  the               injuries  does not depend upon the breadth  of               the  Dhariya.. The width is  correlative  with               the  depth of the wound.  I was not  sent  any               weapon.  The wound is also possible by an  axe               having  a blade 9" or less, and it depends  on               injury of the weapon from the back side of the               neck  upto the chest.  The wound started  from               the middle of the back of neck.  There was  no               injury  on  the  teeth but the  jaw  bone  was               exposed.   This  injury was  possible  by  one               blow". 480 The  injury  on  the  body  of  Lalmamad  belies  the  whole prosecution  case  that a body of persons  had  fallen  upon Lalmamad  and done him to death and that a Dhariya blow  was inflicted  by  the appellant in the course of  that  attack. The place where Lalmamad had fallen as well as the nature of the  injury on his neck indicates that it was most  probable that  Lalmamad was caught alone in the dark near the  Ahirs’ locality  by somebody who cut his neck with a weapon like  a Dhariya.  Night had fallen then.  It could not be  asserted, on the evidence on record, that the person who cut the  neck of Lalmamad, was necessarily the appellant. It  is  not uncommon in cases of a communal nature  to  find witnesses  coming forward to depose falsely about an  attack by a person who is believed to be guilty.  Apparently,  this is  why  the witnesses had tried to ’involve  the  appellant whose  participation in the occurrence seemed to them to  be established by his having been found lying on the road in an injured   condition.   This  may  be  enough   to   convince unsophisticated  persons of his complicity in the murder  of Lalmamad.   But, a court of justice has to sift and  analyse evidence very carefully’ so as to determine whether the case against  an accused person is established beyond  reasonable doubt.   This  is particularly necessary in a  case  with  a communal  background in which partisan witnesses may  depose falsely  out  of a mistaken or misplaced sense  of  a  group loyalty. The  result is that we allow this appeal and set  aside  the conviction  and  sentence  of the  appellant,  who  will  be released forthwith unless wanted in some other connection. V.P.S. Appeal allowed, 481