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
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,
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
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