03 October 1996
Supreme Court
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MOHAMED ARIF & ORS. Vs THE STATE OF GUJARAT

Bench: M.K. MUKHERJEE,S.P. KURDUKAR
Case number: Appeal Criminal 103 of 1994


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PETITIONER: MOHAMED ARIF & ORS.

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT:       03/10/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                           W I T H               CRIMINAL APPEAL NO. 387 OF 1993 The State of Gujarat V. Mohamed Arif & Ors.                       J U D G M E N T M.K. Mukherjee, J.      Seven persons  were tried  by the Additional Designated Court, Ahmedabad under Sections 143, 147, 148, 302/149, 452, 395, 435,  436, 427,  323, 336  and 188  of the Indian Penal Code, Section  105(1) of  the Bombay  Police Act and Section 3(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987  (’TADA’ for  short).   On conclusion of the trial the Designated  court acquitted  three of  them of  all  the charges and convicted the four others under Section 307 read with Section 149 IPC and Section 3 (2) of TADA.  Two of them were also  convicted under  Section 135  (f) of  the  Bombay Police Act.  Against their  conviction and sentence the four convicts (hereinafter  referred to  as the  appellants) have filed one of these appeals (Criminal Appeal No. 103 of 1995) while the  other (Criminal  Appeal No. 387 of 1995) has been filed by the State of Gujarat against their acquittal of the other offences.   Bereft  of details the prosecution case is as under:-      In the  wake of  the  demolition  of  Babri  Masjid  in Ayodhya on  December 6,  1992 a  mob of  about 700  to  1000 members of  the Muslim  Community went  on a  rampage in the city of  Ahmedabad  on  the  following  morning  armed  with various deadly  weapons  and  burning  rage.  After  forming themselves into smell groups they went to different parts of the city  and started  destroying and damaging the shops and other properties  of the  members of the Hindu Community and beating them  up.  The appellants were the members of one of such mobs  comprising 70/80  people which  went  to  Khamasa Chowky under  the Police Station of Karanj and pelted stones on the  houses occupied  by  the  Hindus  there,  broke  the glasses and  ripped the  hoods of  rickshaws parked  on  the roadside and attempted to kill Bharat Kanaiyalal Modi.      The defence  of the appellants, who pleaded not guilty, was that they were implicated on suspicion.

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    Apart from examining a number of witnesses to prove the rampage, the  prosecution examined  Dharat  Kanaiyalal  Modi (P.W.3) and has father Kanaiyalal Modi (P.W.6) to prove that part of it, with which we are concerned in these appeals. In narrating the  incident Bharat  Stated that  on December  7, 1992 it or about 10 A.M. when he was engaged in cleaning his rickshaw outside  his house  a mob consisting of about 60/70 persons and armed with various weapons and burning rags came there and  encircled him.   One  or them  first attacked him with a  razor on the backside on his neck and then two other hit him,  one with  a glass bottle and another with a knife. When his  parents came  to his rescue his mother also got an injury due  to a  stone hurled  at her.   Thereafter both of them were  taken to the hospital, where he was operated upon and kept  as an  indoor patient  for in days.  He identified the four  appellants as  members of  the mob and stated that Mohd. Arif  (Appellant No.  4) with  a  glass  bottle.    As regards the  other two  appellants he averred that they were carrying pipes.  He lastly stated that his rickshaw was also broken and  damaged.   Kanaiyalal fully  supported the above testimony of  his son  and identified the four appellants an some of  the miscreants.   He stated that they used to visit their locality.      Having carefully gone through the evidence of the above two witnesses  we find  no reason to disbelieve them.  There is nothing  on record  to show that they had any enmity with the appellants;  and, though  they were subjected to lengthy cross  examination  the  appellants  could  not  succeed  in discrediting them.   Rather,  we find  that  their  evidence stands amply  corroborated by  that of Dr. Anjanaben (PW 14) who examined  Bharat on  the same  day (December 7, 1992) at 11.30 A.M.  and found  three stab injuries on his person one of which on the chest and another on the lumber region.  She stated that the injury on the lumber region was of a serious nature and  he had  to be operated upon to explore the depth of the  injuries.   The other  corroboration is furnished by the evidence  of Popatji  Javanji Chavada  (PW 15),  a  Sub- Inspector of Karanj Police Station who investigated into the case.   He testified  that when he went to Khamasa Chowky on December 7,  1992 in the afternoon he found 4/5 rickshaws in a broken  condition, stones  lying scattered on the road and signboards of nearby shops broken.      In spite of our above discussion we do not feel it safe to sustain  the conviction of Mohd. Arif (Appellant No.1) as we find  that though  Bharat identified  him correctly,  his father  Kanaiyalal   identified   another   accused   (since acquitted) as Mohd. Arif.  He is, therefore, entitled to the benefit of  reasonable doubt.   We,  therefor, set aside the conviction  and  sentence  of  Mohd.  Arif  but  uphold  the conviction and  sentence of  the other  three appellants  in Criminal Appeal  No. 103  of 1994.    This  appeal  is  thus disposed of.      So far  as the  other  appeal  is  concerned  (Criminal Appeal No.  387 of  1995) we  find from  the record that the activities of  the mob  of which  the  appellants  were  the members were  confined to  terrorising the  members  of  the Hindu community  in and around Khamasa Chowky and attempting to commit  murder of  Bharat.   In such  circumstances  this appeal has got to be dismissed; and we order accordingly.