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PETITIONER: MOHMEDRAFIZ HUSENMIYA THAKORAND OTHERS

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       03/12/1996

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      THOMAS, J.      Girishbhai was  a Secretary  of the local unit (Bhalej) of Vishwa  Hindu Parishad  and he was murdered by a group of people by  attacking him with lethal weapons on the night of 27.3.1990. Police  chargesheeted  63  person  for  the  said murder and  also for  certain other allied offences before a designated court  at Kheda  district (Gujarat  State) set up under the  Terrorists and Disruptive Activities (Prevention) Act, 1987  (for short  ‘the TADA  Act’). Learned  Judge  has convicted nine  of them of the charge of murder with the aid of  section   149  IPC   and  sentenced   them  to   undergo imprisonment for  life. They  are  the  appellants  in  this appeal which  has been  filed under  section 19  of the TADA Act. (We  may mention  here itself  that two  other accused- Jusabmiya Rahimmiya  (A51) and  Mohsinmiya Rasulmiya (A62) - were convicted under section 323 IPC and sentenced to suffer simple imprisonment  for two months and they too have joined as appellants  in this appeal. But in view of the relatively minor offence  found against  them learned  counsel for  the appellants did  not  press  the  appeal  as  for  those  two persons, more  so because both of them had already undergone the sentence).  Appeal on  their  behalf  would,  therefore, stand dismissed. As the accused are so many in number and as the names  of many  of them  have close resemblance with the names of some other accused, we propose, for convenience, to refer to  them in this judgment by the rank given to each of them in the trial court.      Facts of the prosecution case are summarised like this: There  was   communal  unrest  in  the  village  Bhalej  for sometime.  People  belonging  to  two  communities  were  on warpath  against   each  other   and  criminal   cases  were registered by  the police  against some persons belonging to both communities.  Girishbhai, being the Secretary of Bhalej Unit of  Vishwa Hindu  Parishad became a focus for those who were opposed  to the  movement. On  the day  of  occurrence, Girishbhai along  with Jituhai  (PW5)  and  Nathubhai  (PW6) alighted from  a bus at Bhalej old Bus stop around 9.00 p.m. As they  proceeded and  reached near  Rafiq Pan Centre, they were surrounded  by  a  large  number  of  people  who  were

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variously armed  with spear,  razor and law this etc. One of them (Mahemudmiya Isamiya - A49) gave a clarion call to kill the deceased  and so  saying he aimed a blow at the deceased with a  dharia. The blow was warded off by the deceased with his hands.  Then a feeble attempt was made by Jitubhai (PW5) and Nathubhai  (PW6) to  save their  comrade, but  they were driven away  by the  assailants during  the course  of which they too were beaten with lathis. Thereafter, the assailants showered Girishbhai with blows using weapons in their hands. One Anil  Kumar (PW4) who happened to see the beginning part of the  encounter rushed  to house  of the  village Sarpanch (PW3) and  informed him of the incident. PW3 then set out in search of  the deceased but could not locate him even at the place of incident. He later came to know that Girishbhai was taken in a car to the hospital in a badly injured condition. Later, Girishbhai succumbed to his injuries.      First Information Report was registered on the strength of a  complaint lodged  by PW3.  The  Investigating  Officer arrested  the   accused  and   recovered  some  weapons.  On completion of investigation final report was laid against 63 person for offences ranging from section 302 IPC to Sections 3 and  4(4) of  the TADA  Act. However, learned judge of the designated court found that prosecution succeeded in proving that the  nine appellants  have committed  the offence under section 302  read with section 149, IPC, but could not prove any other  offence. Accordingly,  the nine  appellants  were convicted and sentenced as aforesaid.      Girishbhai sustained  a large  number of  injuries from the pate  of his head upto the tibial mallasous of his legs. Such injuries  included lacerated wounds involving his skull and brain  and incised  wounds involving other vital organs. Details of  the wounds  have been  described  by  Dr.  Mohd. Iliyas (PW1)  in the  post-mortem  certificate.  It  is  not necessary to  reproduce the  details of  those injuries here because it  is not  disputed before  us that  Girishbhai was mangled brutally  and fatally  on the  night of 27.3.1990 by attacking him  with lethal  weapons. The  main point  raised before us  by Sri  UR Lalit, learned Senior counsel, is that evidence in  this case  is  too  meagre  to  establish  that appellants were among the assailants.      We have  no doubt  that  PW5  and  PW6  have  seen  the occurrence, at  least the  beginning of it. PW3 who gave FIR on  the  same  night  had  given  a  narration  in  it  that Girishbhai  went  in  the  company  of  PW5  and  PW6  after alighting from  the bus  and later  PW3 knew that Girishbhai became victim  of a violent attack and then he rushed to the scene and on the way he came across PW5 and PW6 who gave him a curt  summary of  the plight  of Girishbhai. Moreover, PW5 and PW6  were also  subjected to assault in the incident and they too  sustained, though  very minor,  some injuries.  We have no  reason to think that PW5 and PW6 would have falsely testified  that   they  witnessed  the  first  part  of  the occurrence.  We   are  satisfied,  on  a  perusal  of  their testimony that  the trial  court has rightly placed reliance on the testimony of those two witnesses.      PW4 (Anil  Kumar) is  another witness  who said that he saw a  part of  the occurrence. His version is that while he was proceeding to the godown of his uncle he happened to see the deceased  in the company of Jitubhai (PW5) and Nathubhai (PW6). As  they were  proceeding near  Rafiq Pan Centre, PW4 saw  some  persons  emerging  from  ambush  near  the  cabin situated on  the road side, armed with weapons and attacking the deceased Girishbhai. PW4 took to his heels and reach the house  of  the  Sarpanch  (PW3)  and  conveyed  to  him  the frightening news.  It is  pertinent to  note in this context

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that PW3  has also said that he came to know of the incident first when  Anil Kumar (PW4) told him about it at his house. Learned trial  judge has  found the  testimony of  PW4 quite reliable and we have no reason to dissent from it.      From the  account given by PW4, PW5 and PW6, we have no doubt that the assailants who attacked the deceased were far more than  five in  number who  formed  themselves  into  an unlawful assembly  whose common  object was  to  finish  off Girishbhai.      But the  crucial question is whether appellants, or any one of  them, were  members of  the unlawful assembly. If it was so,  the conviction  and sentence  passed by  the  trial court on such of them, are liable to be upheld.      The  nine   appellants  are   A42  (Mohmedrafiq),   A43 (Mehboobmiya  Lalmiya),  A44  (Mohmed  Hanif),  A45  (Imtyaz Ibraham), A46 (Idrisbhai Gafoorbhai), A47 (Isamiya Alimiya), A48 (Basirmiya  Insammiya), A-49  (Mahemudmiya Isamiya)  and A58 (Mohmedmiya alias Mamlo Salimmiya)      PW5 (Jitubhai)  has identified  during trial  stage all the nine  appellants as  participants in  the crime  but PW6 (Nathubhai)  has  identified  only  A42  (Mohmedrafik),  A45 (Imtyaz   Ibrahim),    A46   (Idrishbhai   Gafurbhai),   A49 (Mahemudmiya  Isamiya)   and   A58   (Mohmedmiya)   as   the assailants. We  have no  difficulty in  concurring with  the finding of  the trial  court that  those five  persons  were members of  the unlawful assembly. Anil Kumar (PW4) has also said  that  A42,  A45  and  A58  were  participants  in  the incident. But  no other witness has supported the version of PW5 that  A44 (Mohmedhanif)  and A48  (Basirmiya  Insammiya) were also the assailants.      Of  course,   PW4  has   deposed  that   he  identified Mahemudmiya and  Isamiya also  among the  assailants but  we have difficulty in this case for fixing up those two persons as A43  and A47  because among the 63 accused, there are two other  persons   bearing  the   same  names.  They  are  A53 (Maheboobmiy Akbarmiya)  and A1  (Isamiya Mirsabmiya) As PW4 in his  deposition has described the said two accused by the names "Mahboobmiya" and "Isamiya" without any further prefix or suffix,  the reference  made by the witness could as well apply to  A53 and A1 also instead of A43 and A47. There is a real doubt  regarding the  identity of  the  accused  as  to whether PW4  would have  meant A53  when he  said  the  name "Mahmoobmiya" and A1 when he said the name "Isamiya". We are inclined to  extend the  benefit of that reasonable doubt to A43 and A47.      We wish to utilise this opportunity to impress upon the trial courts  of the  need  to  indicate  the  rank  of  the accused, besides using the name, while recording evidence in cases  involving   multiplicity  of  accused.  It  would  be profitable for  the High  Courts to  issue circulars  to the trial courts to implement this practical suggestion to avoid possible miscarriage  of justice resulting solely on account of defective and truncated recording of evidence in criminal cases the case.      The result  of the  above discussion  is  that  we  are unable to  sustain the conviction of four appellants who are A43 (Maheboobmiya Lalmiya), A44 (Mohmedhanif), A47 (Isamiya) and A48  (Basirmiya Insammiya).  We, therefore,  allow their appeal and  set aside  the conviction and sentence passed on them. Their  bail bonds  are discharged.  We acquit them and direct them to be set at liberty if they are not required in any other  case but  we confirm  the conviction and sentence passed by  the trial  court on  other appellants who are A42 (Mohmedrafik),  A45   (Imtyaz   Ibrahim),   A46   (Idrisbhai Gafurbhai), A49  (Mahemudmiya Isamiya)  and A58  (Mohmedmiya

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alias Mamlo). Steps shall be taken to put them back in jail, if they  are not in custody now. Their bail bonds (except of A42) are cancelled.