{"id":187070,"date":"1990-10-05T00:00:00","date_gmt":"1990-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dilaver-hussain-son-of-vs-state-of-gujarat-and-anr-on-5-october-1990"},"modified":"2016-03-01T07:37:05","modified_gmt":"2016-03-01T02:07:05","slug":"dilaver-hussain-son-of-vs-state-of-gujarat-and-anr-on-5-october-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dilaver-hussain-son-of-vs-state-of-gujarat-and-anr-on-5-october-1990","title":{"rendered":"Dilaver Hussain Son Of … vs State Of Gujarat And Anr on 5 October, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dilaver Hussain Son Of … vs State Of Gujarat And Anr on 5 October, 1990<\/div>\n
Equivalent citations: 1991 AIR 56, \t\t 1990 SCR Supl. (2) 108<\/div>\n
Author: R Sahai<\/div>\n
Bench: Sahai, R.M. (J)<\/div>\n
           PETITIONER:\nDILAVER HUSSAIN SON OF MOHAMMADBHAILALIWALA ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT AND ANR.\n\nDATE OF JUDGMENT05\/10\/1990\n\nBENCH:\nSAHAI, R.M. (J)\nBENCH:\nSAHAI, R.M. (J)\nRAY, B.C. (J)\nPANDIAN, S.R. (J)\n\nCITATION:\n 1991 AIR   56\t\t  1990 SCR  Supl. (2) 108\n 1991 SCC  (1) 253\t  JT 1990 (4)\t282\n 1990 SCALE  (2)788\n\n\nACT:\n    Indian Penal Code: Section 302--Crime emanating from com\nmunal  Frenzy--Law makes no distinction in leading  of\tevi-\ndence  or of its assessment--Held on facts prosecution\tleft\nimportant  lacuna--Failed  to prove  beyond  doubt  dreadful\ncrime committed by appellants.\n    Terrorist  and Disruptive Activities  (Prevention)\tAct,\n1985-Section 3(2) (i). Murder Reference for confirmation.\n\n\n\nHEADNOTE:\n    The\t agitation  that started in  February  1985  against\ngovernment  policy  of reservation in the State\t of  Gujarat\nturned\tinto  communal riots of shocking  magnitude  between\nHindus\tand  Muslims  in March 1985, and  resulted  in\tmass\nexodus\tof Dabgars, a Hindu community, from their houses  in\nthe  affected  locality. When calm was\tpartially  restored,\nsome  of them returned. Maniben one of the deceased  however\ncontinued  to  live in her house with other members  of\t her\nfamily.\n    On 9th June, 1985, due to absence of military which\t had\nbeen  stationed\t there, members of minority  community\tcon-\nverged\tfrom  two sides and indulged in\t most  cowardly\t and\nshameful  act of pushing open the door of  Maniben's  house,\nsetting\t fire to it, and then chaining it from\toutside\t re-\nsulting in death of the lady, her two daughters, four grand-\nchildren  and son of a neighbour. Next house set ablaze\t was\nof Navin and then many others.\n    Charge  was framed against sixty three  under  Terrorist\nand Disruptive Activities (Prevention) Act, 1985 and various\noffences including section 302, Indian Penal Code. Fifty six\nwere acquitted by the Trial Judge. Those convicted have come\nup  in appeal. At the same time, a reference has  been\tmade\nfor confirmation of death sentence.\n    Allowing  the  appeals and acquitting  the\taccused\t and\ndischarging reference. this Court,\nHELD:  (1)  Sentiments or emotions,  howsoever\tstrong,\t are\nneither\n109\nrelevant nor have any place in a court of law. Acquittal  or\nconviction depends on proof or otherwise of the criminologi-\ncal  chain which invariably comprises of why,  where,  when,\nhow and who. Each knot of the chain has to be proved, beyond\nshadow of doubt to bring home the guilt. Any crack or  loos-\nening  in it weakens the prosecution. Each link must  be  so\nconsistent  that  the only conclusion which must  follow  is\nthat the accused is guilty. Heinousness of crime or  cruelty\nin  its\t execution howsoever abhorring\tand  hateful  cannot\nreflect in deciding the guilt. [110H; 111A-B]\n    (2)\t Credibility  of witnesses has to be  measured\twith\nsame  yardstick, whether it is an ordinary crime or a  crime\nemanating  due\tto communal frenzy. Law does  not  make\t any\ndistinction either in leading of evidence or in its  assess-\nment. [111C]\n    (3) To bring home the guilt the prosecution was required\nto  prove the presence of witnesses, possibility  of  seeing\nthe  incident by them and identification of the\t appellants.\n[115C]\n    (4)\t From  the location of Ambalal's house it  is  clear\nthat one could see front of Maniben's house only if he stood\nin front of it with face towards west-south. But that is not\nthe prosecution case. In fact prosecution is silent on\tthis\naspect.\t There\tis no whisper of the place  from  where\t the\nincident was seen by the witnesses. Was it front of house of\nAmbalal\t or inside or roof? This was very relevant as  every\nwitness\t admitted that from interior of Ambalal's house\t the\nfront of neither Maniben's nor Navin's house could be  seen.\nEvidence thus regarding possibility of seeing the appellants\nfrom house of Ambalal is very shaky. The prosecution left an\nimportant lacuna. [116A-C]\n    (5) Indentification of accused from out of the mob\teven\nif  they  were known from before  becomes  highly  doubtful.\n[116G]\n    (6) The finding of the Judge that even though the  house\nof Ambalal is slightly obliquely situated as compared to the\nhouse  of Maniben, it would not at all be difficult for\t the\nwitnesses who had hid themselves in the house of Ambalal  to\nhave  correctly\t identified  the accused, is  not  based  on\nappreciation of evidence but on imagination. [117G-H]\n    (7)\t The prosecution version suffered from\tserious\t in-\nfirmity. Its failure to bring on record evidence which could\nestablish the possibility or even probability of the witness\nseeing the occurrence demolishes the whole structure. [118A]\n110\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL  APPELLATE.JURISDICTION: Criminal\tAppeal\tNos.
\n259-64 of 1987.\n<\/p>\n
    From  the  Judgment and Order dated 20.4.  1987  of\t the
\nDesignated Court, Ahmedabad in Terrorist Criminal Case No. 3
\nof  1985 with Terrorist Criminal Case Nos. 13 of 1985 and  6
\nof 1986.\n<\/p>\n
T.U. Mehta, A.S, Quereshi, Salman Khurshid, S.H. Kureshi,
\nMrs.  Vimla Sinha, Ifshad Ahmed, Imtiaz Ahmed,\tGopal  Singh
\nand S.M. Qureshi for the Appellants.\n<\/p>\n
    P.S.  Poti, M.N. Shroff, Anip Sachthey, Bimal Roy,\tKai-
\nlash  Vasdev,  Ms.  A. Subhashini, Chava  Badri\t Nath  Babu,
\nGirish Chandra, Biman Jad and Ashish Verma for the  Respond-
\nents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    R.M.  SAHAI, J. Tragic trauma of ghastly, in  human\t and
\nbeastly behaviour of one community against another  depicted
\nfor weeks and weeks, in this criminal appeal, forcefully, at
\ntimes,\temotionally  still hangs heavily.  What\t a  tragedy?
\nEight  human lives roasted alive. Five in waiting  for\tgal-
\nlows. Neighbours residing peacefully for generations sharing
\ncommon\thappiness and sorrow even playing  cricket  together
\nsuddenly  went mad. Blood thirsty for each  other.  Burning,
\nlooting\t and  killing became order of the day.\tEven  ladies
\nattempted  to prevent fire brigade from extinguishing  fire.
\nHow pathetic and sad.\n<\/p>\n
    Still  sadder was the manner in which the  machinery  of
\nlaw moved. From accusation in the charge sheet that  accused
\nwere  part of unlawful assembly of 1500 to 2(100 the  number
\ncame  down  to\t150 to 200 in evidence and  the\t charge\t was
\nframed\tagainst sixty three under Terrorist  and  Disruptive
\nActivities  (Prevention) Act, 1985 (in brief TADA  Act)\t and
\nvarious\t offences including Section 302 under  Indian  Penal
\nCode. Even from that fifty six were acquitted either because
\nthere  was  no evidence, and if there was  evidence  against
\nsome it was not sufficient to warrant their conviction. What
\nan affront to fundamental rights and human dignity.  Liberty
\nand  freedom of these persons was in chains for more than  a
\nyear. For no reason. One even died in confinement.
\n    All this generated a little emotion during\tsubmissions.
\nBut  sentiments or emotions, howsoever, strong\tare  neither
\nrelevant nor have any place in a court of law. Acquittal  or
\nconviction depends on proof
\n111<\/span>
\nor  otherwise of the criminological chain  which  invariably
\ncomprises of why, where, when, how and who. Each knot of the
\nchain has to be proved, beyond shadow of doubt to bring home
\nthe guilt. Any crack or loosening in it weakens the prosecu-
\ntion.  Each link, must be so consistent that the, only\tcon-
\nclusion\t which\tmust follow is that the accused\t is  guilty.
\nAlthough guilty should not escape. But on reliable  evidence
\ntruthful  witnesses  and honest and fair  investigation.  No
\nfree man should be amerced by framing or to assuage feelings
\nas  it is fatal to human dignity and destructive of  social,
\nethical\t and legal norm. Heniousness of crime or cruelty  in
\nits execution howsoever abhorring and hateful cannot reflect
\nin deciding the guilt.\n<\/p>\n
    Misgiving,\talso, prevailed about appreciation  of\tevi-
\ndence.\tWithout adverting to submissions suffice it to\tmen-
\ntion  that credibility of witnesses has to be measured\twith
\nsame yardstick, whether, it is an ordinary crime or a  crime
\nemanating  due\tto communal frenzy. Law does  not  make\t any
\ndistinction either in leading of evidence or in its  assess-
\nment.  Rule is one and only one namely, if  depositions\t are
\nhonest\tand true: Whether the witnesses, who claim  to\thave
\nseen  the incident in this case, withstand this test is\t the
\nissue?\tBut  before that some legal  and  general  questions
\ntouching  upon veracity of prosecution version may  be\tdis-
\nposed of.\n<\/p>\n
    Trial under TADA Act was assailed, both, because of\t the
\nAct  being ultra vires of the fundamental  right  guaranteed
\nunder  Constitution and absence of circumstances  justifying
\nits  extension\tto the State of Gujarat. For the  latter  no
\nfoundation  was\t laid therefore it was not permitted  to  be
\nraised.\t And  the  former is  awaiting\tadjudication  before
\nConstitution Bench from where this appeal was got  delinked.
\nInvoking  of provisions of TADA Act, in communal  riot,\t was
\nattacked  and  it was submitted that a combined\t reading  of
\nSections 3 and 4 with explanation indicated that the  Legis-
\nlative intention was to confine the applicability of the Act
\nto  secessionist or insurgency activities against the  State
\nand not to ordinary crimes for which provisions exist in the
\nPenal  Code. Since the Constitution Bench is already  ceased
\nof  the matter we are of the opinion that these aspects\t too
\ncan, well be raised there.\n<\/p>\n
    From  acquittal  of\t thirty seven accused  for  lack  of
\nevidence  even\tthough they were arrested  in  rounding\t off
\noperation  by  the military, after cordoning  off  the\tarea
\nimmediately  after  the incident, it was  vehemently  argued
\nthat it demonstrated that prosecution was not fair and there
\nwas  deliberated  attempt  to rope in  appellants  who\twere
\nwell-to-do persons of the community not because they had any
\nhand in
\n112<\/span>
\nthe crime but for extraneous reasons. It was emphasised that
\nif persons arrested on the spot residing in the same locali-
\nty  could not be identified nor any evidence could  be\tpro-
\nduced  against them then it was clear that the case  against
\nthe appellants was also not trustworthy and they were impli-
\ncated  either  because\tof enemity or  for  oblique  motive.
\nAlthough  the  argument did appear to be attractive  on\t the
\nfirst flush but it was dispelled soon by the learned counsel
\nappearing  for the State who submitted that the\t mistake  in
\ncharge-sheeting\t those\taccused\t along\twith  appellant\t was
\nbloated out of proportion. According to him the incident for
\nwhich  the appellants have been convicted and sentenced\t was
\npart  of a different transaction, although it took place  on
\nthe  same day, than the incident in which thirty seven\tper-
\nsons  were rounded off. The learned counsel  explained\twith
\nhelp  of  Colonel  Sudhakar PW 21’s statement  and,  in\t our
\nopinion,  rightly,  that these arrests were made  in  conse-
\nquence of action taken by the military, on a different\tmob,
\nas it included many ladies who did not form part of  earlier
\nmob, while attempting to bring situation under control after
\nthe  incident.\tTherefore, it is not possible  to  draw\t any
\nadverse inference against prosecution on this score.
\n    Time,  place, background and manner in  which  dastardly
\ncrime  was committed on 9th June, 1985 in broad daylight  at
\n2.30  p.m. was by and large not in dispute. What started  as
\nagitation  in  February 1985 against  government  policy  of
\nreservation, in the State of Ahmedabad, turned into communal
\nriots  between Hindus and Muslims in March, 1985 which\twent
\non, continuously, for long spell resulting in enormous\tloss
\nof  life  and property of both\tthe  communities.  Situation
\ndeteriorated  so  much that military had to  be\t called\t and
\nstationed  in  sensitive areas, in  April,  1985,  including
\nDhabgarwad, a large area with Hindus and Muslims residing at
\nplaces\tside by side and others exclusively. In\t March\t1985
\nriot  of  shocking magnitude had taken place  in  this\tarea
\nresulting in mass exodus of Dabgars, a Hindu community,\t who
\nearned their livelihood by manufacturing musical instruments
\nsuch  as drums and also umbrellas and kites. When  calm\t was
\npartially  restored,  due to the military  being  stationed,
\nsome of them returned and some used to visit their houses in
\nday time to look after their property or business.  Maniben,
\na  dabgar, whose one of the daughters had married  a  muslim
\nbut  was  having strained relations with him,  continued  to
\nlive  in her house either because she had no other place  to
\ngo or she was confident that she shall not be harmed. Howev-
\ner despite stationing of military incidents went on whenever
\nor wherever least opportunity was available with the  result
\nthat curfew was clamped, continuously, in the area from\t 7th
\nJune, 1985. As ill luck would have it the military stationed
\nin
\n113<\/span>
\nthe area left for some other place at about 1.30 p.m. on 9th
\nJune,  1985. Taking advantage of the vulnerability,  due  to
\nabsence of military. members of minority community converged
\nfrom  two  sides and when they intermingled  in\t the  corner
\nsomewhere  near the house of Maniben or electric power\tsub-
\nstation\t they indulged in most cowardly and shameful act  of
\npushing\t open the door of her house setting fire to  it\t and
\nthen  chaining\tit from outside resulting in  death  of\t the
\nlady,  her two daughters. four grand-children and son  of  a
\nneighbour. Next house set ablaze was of Navin and then\tmany
\nothers.\n<\/p>\n
    Prosecution\t version can thus be divided in three  parts
\none,  entry of mob from two sides one from Magadom Pole\t and
\nother  kalupur\tPanchpatti  shouting  ‘kill’  ‘cut’  pelting
\nstones,\t throwing  acid\t bulbs and flambeaus  on  houses  of
\nHindus\twhile approaching towards Nani Ali Pole. The  second
\nwas meeting of the two groups on the corner of Nani Ali Pole
\nand  then pushing open the door of Maniben’s house  by\tfive
\nappellants  armed with burning flambeau, iron  pipe,  stick,
\nkerosene  and  bottle of petrol sprinkling  of\tkerosene  or
\npetrol inside the house setting it ablaze then coming out of
\nthe house closing and shutting the door and chaining it from
\noutside. The third was entry of appellants thereafter in the
\nhouse of Navin setting it on fire and then entering in\tNani
\nAli  Pole with other members of mob and attacking houses  of
\nKantilal, Kalidas and others.\n<\/p>\n
    To prove it the prosecution examined twenty two witness-
\nes which were grouped by the trial judge in seven’. One\t and
\nthe main group consisted of Navin PW 1, Ambalal PW 8,  Rati-
\nlal  PW 9, and Kalidas PW 13. These were the  witnesses\t who
\nwere  ‘said to have collected at the house of  Ambalal\tfrom
\nwhere they witnessed the occurrence and the participation of
\nthe appellants in it. The second group consisted of  Kalidas
\nPW  7,\tRamanlal PW 10, Manchharam PW 12, who were  said  to
\nhave witnessed the incident from the house of Kalidas  Chha-
\nganlal.\t The  third group consisted of Arun Kumar  PW  I  1,
\nJaswantlal  PW 14, Dilip Kumar PW 17 and Sanmukhbhai PW\t 20,
\nwho  were witnesses who are said to have arrived on  hearing
\nthe  shouts and commotion and witnessed the occurrence\tfrom
\nnear  Dabgarwad Police gate. The other groups  comprised  of
\nofficial witnesses.\n<\/p>\n
    No\twitness was examined from any of the house  situated
\non  either side of road from where the two mobs\t entered  or
\nfrom any of the houses ,situated on the route through  which
\nthe. mob passed before it reached\/the comer of Nani Ali Pole
\nto  establish  identity of accused. Mod which  entered\tfrom
\nMagadom Pole side was admitted by
\n114<\/span>
\nAmbalal\t to have passed from,the front of his house. But  he
\nstated\tthat  he  could not recognise anyone  out  of  them.
\nAppellants  according to prosecution were in the  mob  which
\ncame from Kalupur Panchpatti. From the place from where\t the
\nmob  entered and to the corner of Nani Ali Pole the mob\t had
\nto  pass from a long route which is inhabited by  houses  on
\nboth  sides  but not one witness was produced  from  any  of
\nthese  house nor it was clearly brought out that inmates  of
\nall these houses were of minority community only.
\n    For\t the  second  group of witnesses  who  according  to
\nprosecution, saw the occurrence from the house top of  Kanti
\nLal the Judge himself found that they were not in a position
\nto see the road in front of house of Navin nor they were  in
\na position to see the road in front of house of Maniben. He,
\ntherefore, observed that so far evidence of these  witnesses
\nin  respect  of attack by the mob on house  of\tManiben\t and
\nNavin was concerned it could be relevant only generally that
\nthey set fire to the house. That is they could not be  taken
\nto be witnesses to prove that appellants broke open the door
\nof  Maniben’s  house or set fire to it or  chained  it\tfrom
\noutside.\n<\/p>\n
    Nor is the evidence of third group of witnesses  helpful
\nas  they  had  collected near the gate\tof  police  outpost.
\nDistance  between the gate and place of incident appears  to
\nbe  not less than 200 to 250 feet. Moreover  they  collected
\nafter  the  house  of Maniben was set on fire.\tAnd  it\t was
\nadmitted  by  PW  1, 8, 9 and 13 that the  house  of  Navin,
\nKantilal,  Ambalal  could not be seen from  police  outpost.
\nTheir testimony thus cannot be taken into account for  prov-
\ning  second part of the incident which resulted in death  of
\ninmates of Maniben’s house.\n<\/p>\n
    Fate of the appellants, therefore, hangs on\t credibility
\nof first group of witnesses. For its better appreciation  it
\nis  necessary  to  set out topography of the  place  of\t the
\nincident. From the map it is clear that the house of Maniben
\nalongwith  cluster of six other houses in surrounded on\t all
\nsides  by  lanes and roads. Immediately above her  house  is
\nhouse of Navin in North. Then there are two houses, parallel
\nto  each other, in south of her house. There are three\tmore
\nhouses one after the other, in south. On west side of  these
\nis  lane.  So is a lane in north side after which  there  is
\nelectric sub-station. On the left of substation there is gap
\nand then there is one house and in its north is the house of
\nKantilal.  On the east of Maniben’s house is  the  Dabgarwad
\nroad which runs somewhat in semi circle running from Kalupur
\nPanchpatti  situated  in extreme south\teast  towards  west,
\ntaking turn from near Dabgarwad Police outpost in the  South
\nmoving up towards
\n115<\/span>
\nnorth  east  in angle tilting slightly from  somewhere\tnear
\ncluster of houses round Maniben’s house and then  proceeding
\ntowards\t Daryapur. House of Ambalal from where first set  of
\nwitnesses had seen the occurrence is on this road from where
\nthe road tilts. It was admitted by PW 1 that house of  Amba-
\nlal  was obliquely situated. That is clear from the  map  as
\nwell.  If  from the two ends of the house, south  and  north
\nfacing\tthe road straight lines are drawn towards west\tthey
\nshall  pass through the lane in front of Navin’s  house\t and
\npower station respectively. Navin PW 1 whose house is  situ-
\nated  in  north of Maniben’s house  admitted  that  electric
\nsub-station  was in front of Ambalal’s house. Rati Lal PW  9
\nstated\tthat  on one side of the road was his house  and  on
\nother of Ambalal. The house of Ambalal was thus above  Mani-
\nben’s house towards north-east.\n<\/p>\n
    To bring home the guilt the prosecution was required  to
\nprove  the presence of witnesses, possibility of seeing\t the
\nincident  by  them  and identification\tof  the\t appellants.
\nImportance  of\tfirst arose as due to riots  in\t March\t1985
\nthere  was mass exodus of Hindus from  Dabgatwad.  Therefore
\npresence  of these witnesses was attempted to be  challenged
\nas curfew having been imposed from 7th June and Col.  Sudha-
\nkar,  PW  21, incharge of Military stationed, in  the  area,
\nhaving\tstated that no passes were issued to anyone  it\t was
\nnot  probable  that any of the witnesses who claim  to\thave
\nseen the occurrence could have been present. But it  appears
\nto be devoid of any merit in view of unimpeachable testimony
\nof  the\t witnesses that they were present  in  their  houses
\neither\tbecause they had come earlier after  restoration  of
\npartial\t calm or they had come on the day of  occurrence  to
\nsee their business and they were not prevented by the police
\neven  if they did not have any pass. The Judge had  examined
\nthis aspect in detail and found from various  circumstances,
\nnamely,\t restoration  of  partial calm due  to\tpresence  of
\nmilitary  personnel,  death of eight  persons  in  Maniben’s
\nhouse  including children, rescuing of many persons  trapped
\nin  the house of Kalidas Chhagan which too was set on  fire,
\nadmission  by accused in their statements under section\t 313
\nCriminal Procedure Code etc. that presence of these witness-
\nes  could  not be doubted. Further if the  Dabgads  had\t not
\nreturned and the area was deserted then where was the  occa-
\nsion for the mob to indulge in this vendetta.
\n    But mere presence of witnesses was not sufficient.\tMore
\nimportant  was if they saw the incident. It  assumed  impor-
\ntance due to two reasons one because entire set of witnesses
\nsaw  the incident from house of Ambalal which  was  situated
\nupwards\t on the road towards north-east as compared  to\t the
\nhouse of Maniben, and second that each
\n116<\/span>
\nof the witnesses including Ambalal admitted that the exteri-
\nor of Maniben’s or even Navin’s house could not be seen from
\ninterior of the house. From the location of Ambalal’s  house
\nit is clear that one could see front of Maniben’s house only
\nif he stood in front of it with face towards west-south. But
\nthat  is  not the prosecution case. In fact  prosecution  is
\nsilent on this aspect. There is no whisper of the place from
\nwhere  the incident was seen by the witnesses. Was it  front
\nof  house of Ambalal or inside or roof. Prosecution did\t not
\nmake  any effort to remove this defect,\t obviously,  because
\nthe  investigation itself suffered from\t this  flaw.Although
\nthe defence, also, did not make any attempt to get it clari-
\nfied,  may  be as a part of clever design as to\t from  where
\nthese witnesses saw the occurrence but the disadvantage,  if
\nany  is\t of prosecution. As stated earlier,  this  was\tvery
\nrelevant  as  every witness admitted that from\tinterior  of
\nAmbalal’s  house the front of neither Maniben’s nor  Navin’s
\nhouse could be seen. Evidence thus regarding possibility  of
\nseeing\tthe appellant from house of Ambalal is\tvery  shaky.
\nThe prosecution left an important lacuna.\n<\/p>\n
    Unfortunately, each witness’ not only stated that he saw
\nthe appellants but they went on to describe with  remarkable
\nsimilarity  in detail the article which each accused had  in
\nhis  hand: What is surprising is that accused had come\tfrom
\nKalupur\t side therefore they could not have been seen  prior
\nto  their  arrival near electric  sub-station  before  which
\neveryone  had  entered house of Ambalal yet it is  they\t and
\nthey alone who could be identified from the entire mob. PW 1
\nadmitted that when he rushed from his house in fear the\t mob
\nof  Kalupur  side was 40 or 50 feet away. He  also  admitted
\nthat he saw these accused for the first time from the  house
\nof Ambalal from a distance of 20 feet. No subsequent witness
\ntried to explain it. Others had reached admittedly prior  to
\nNavin.\tTherefore, they could not have had occassion to\t see
\nthe Kalupur mob and if they saw then it must have been at  a
\nlonger\tdistance.  Statement of PW 9,  therefore,  that\t the
\nappellants  were  leading the mob is very  difficult  to  be
\naccepted.  And if they saw for the first time from house  of
\nAmbalal, as stated by Navin and not improved upon by others,
\nthen  it  is very difficult to accept that they\t could\thave
\nidentified  these appellants. PW 1 further admitted that  if
\nanyone stood with his face towards house of Maniben his then
\nhis back only could be visible from Ambalal’s house. That is
\nclear from map as well. Therefore identification of  accused
\nfrom  out  of the mob even if they were\t known\tfrom  before
\nbecomes highly doubtful.\n<\/p>\n
    Out\t of  persons who had collected at house\t of  Ambalal
\nonly  four were examined. It was admitted by  every  witness
\nthat the last to enter
\n117<\/span>
\nthe house were Navin and his father. Time of entry as  given
\nby  witnesses  was before mixing of the mob  at\t the  corner
\nexcept\tAmbalal\t who stated that he came after the  mob\t had
\ncollected.  But that appears to be improbable as he  was  so
\nscared that he ran with his father without even closing door
\nof  his\t house. And if he would have come out when  mob\t had
\ncollected then it is difficult to believe that he would have
\nbeen  spared  when his house too was burnt.  Navin  was\t the
\nfirst witness to be examined. He stated, categorically, that
\nwhen  he  entered the house of Ambalal it  was\tclosed\tfrom
\ninside. It was attempted to be improved upon by Ambalal\t who
\nstated\tthat  he kept the door ajar. But apart\tfrom  normal
\nhuman  behaviour  to close the door, for protection  in\t the
\nbackground of incident of March and fear generated by  shout
\nof ‘kill’, and ‘cut’, the other witnesses PW 9 and PW 13 too
\nstated that the door was closed after entry of Navin. In any
\ncase  the incident having taken place after entry  of  Navin
\nand  the door having been closed thereafter or even ajar  or
\nhalf  closed it was necessary for prosecution  to  establish
\nhow did the witnesses see the occurrence when they  admitted
\nthat the exterior of Maniben’s house or even of Navin  could
\nnot  be seen from inside of Ambalal’s house. The  deficiency
\nin prosecution version was attempted to be explained by\t the
\njudge  by  adverting to evidence of PW 13 that\tAmbalal\t was
\nopening\t and closing the door every now and then,  therefore
\nthere  was nothing improbable in witnesses having  seen\t the
\noccurrence. But the approach was, both, faulty and  illegal.
\nThe  conclusion\t by  picking up\t isolated  sentence  without
\nadverting to other parts of his statement where he  admitted
\nthat  after  entry,  of all, the doors\tof  the\t house\twere
\nclosed,\t and,  he was able to identify the  appellants\twhen
\nthey  were effecting entry in house of Maniben and  that  he
\ndid  not identify anyone out of the mob till he entered\t the
\nhouse  of  Ambalal was contrary to rule of  appreciation  of
\nevidence.  Reading  the whole statement\t together  makes  it
\nconsistent  with evidence of other witnesses and  leaves  no
\nroom for doubt that opening and closing the door was resort-
\ned to let in the persons who were reaching house of  Ambalal
\ndue to fear of mob. And the exercise of opening and  closing
\nbeing over after entry of Navin seeing the mob or  identify-
\ning the accused in process of opening and closing was out of
\nquestion. The finding of the judge, thus, that ‘it is not as
\nif that once the door of the house of Ambalal was closed  it
\nwas  never  opened again at any time  before  these  persons
\nescaped\t from the house of Ambalal  …..   Therefore,\teven
\nthough\tthe house of Ambalal is slightly obliquely  situated
\nas compared to the house of Maniben, it would not at all  be
\ndifficult for these witnesses who had hid themselves in\t the
\nhouse of Ambalal to have correctly identified the  accused’,
\nis not based on appreciation of evidence but on imagination.\n<\/p>\n
118<\/span><\/p>\n
    Thus prosecution version suffered from serious  infirmi-
\nty.  Its  failure to bring on record  evidence\twhich  could
\nestablish the possibility or even probability of the witness
\nseeing the occurrence demolishes the whole structure.  Since
\nit was admitted to all the P.W.s that the exterior of  Mani-
\nben’s  house  could not be seen from interior  of  Ambalal’s
\nhouse the prosecution could succeed in establishing its case
\nonly  if it could prove that witnesses even then could\thave
\nseen  the  occurrence. The only possibility  of\t seeing\t the
\noccurrence  could  be either from the road  or\tstanding  in
\nfront  of  Ambalal’s shop or if there was  any\tsource\tfrom
\ninside\thouse  of Ambalal. Evidence is lacking\tfor  either.
\nPossibility of the first two alternative from where incident
\ncould  have been seen is out of question. Witnesses were  so
\nterrified due to incident of March 1985 that they could\t not
\nremain\toutside. PW 1 was so afraid that he rushed with\t his
\nfather\twithout\t even closing door of his house. And  if  he
\nwould  have come out when mob had reached house\t of  Maniben
\nwas  stated  by\t Ambalal then there would  have\t been  every
\npossibility  of\t his being attacked. PW 9 and  13  too\twere
\nafraid\tand  rushed  to Ambalal’s house.  Every\t time  these
\nwitnesses reached the door was opened and after entry it was
\nclosed. Last man to enter was Navin Chandra. No witness\t has
\nstated\tthat  it  was opened thereafter even  once  to\tlook
\noutside.  How did then these witnesses see pushing  open  of
\nManiben’s door by appellants, setting fire to her house\t and
\nchaining from outside. It was for prosecution to explain. It
\ncould  not be taken for granted merely because each  witness
\nrepeated  that\tthey knew the appellant from  childhood\t and
\neach  of  them was armed with articles\tmentioned  in  their
\nhand. Ambala1 did state that the door of his shop had  seven
\nplanks joined by hinges. But the prosecution stopped  there.
\nIt did not dare to come out with the case that the witnesses
\nsaw  from  the crevices. Therefore the\tprosecution  version
\nsuffered  from\ta  lacuna which was fatal.  The\t doubt\tthus
\ncreated\t if  the  witnesses saw the  occurrence\t at  a11  is
\nstrengthened  by subsequent conduct and behaviour  of  these
\nwitnesses.  The prosecution version was that the moment\t the
\nmob  moved from house of Maniben to house of  Navin  Chandra
\ntowards Nani Ali Pole side the witness came out of Ambalal’s
\nhouse  and dashed towards police gate where large number  of
\npersons had collected. But strangely not one of them told it
\nto  anyone  present there or even to police  personnel\tthat
\nManiben’s  house  was burnt by appellants.  It\twas  against
\nnormal human behaviour as all the appellants were known from
\nbefore. The incident had taken place due to communal frenzy.
\nIt  is,\t therefore,  difficult to believe  that\t once  these
\nwitnesses reached Dabgarwad Police gate they would not\thave
\nshouted\t at top of their voice that the appellants known  as
\nLallewallas  had killed Maniben. What is further  surprising
\nis that they did not disclose the
\n119<\/span>
\nnames  even to Manchharam whose son had been burnt alive  in
\nhouse  of  Maniben, nor to anyone in the hospital  and\tkept
\ntheir mouth sealed till 11th June 1985 and opened it for the
\nfirst  time in the Police Station when their  statement\t was
\nrecorded  giving graphic description step by step. Not\tonly
\nthat  the  PW 9 and 13 broke down in cross  examination\t and
\nadmitted that they had not seen the appellants setting\tfire
\nto the house of either Maniben or Navin. They were saying so
\nby inference as they had seen smoke coming from the  houses.
\nThus  witnesses and circumstances both are against  prosecu-
\ntion  version. Although there are contradiction on  material
\naspects\t in statement of these witnesses and arguments\twere
\naddressed on late recording of evidence, failure to  produce
\nthe  Chief Fire Officer, to establish if house\twas  chained
\n‘from  outside, delay in preparation of panchnama  of  Mani-
\nben’s  house etc. but we consider it unnecessary to  discuss
\nthem  as  the prosecution, in our opinion, failed  to  prove
\nbeyond shadow of doubt that the dreadful crime was committed
\nby  appellants. There is thus no option but to acquit  these
\naccused.  We, however, hope that our order shall bring\tgood
\nsense to members of both the communities residing in Dabgar-
\nwad and make them realise the disaster which such  senseless
\nriots result in and they shall in future take steps to avoid
\nrecurrence of such incidents and try to resort to the atmos-
\nphere that prevailed before March 1985.\n<\/p>\n
    For\t the reasons stated above all these appeals  succeed
\nand are allowed. Reference No. 1 of 1987 for confirmation of
\ndeath  sentence is discharged. The conviction and  sentences
\nof appellants herein under section 3(2)(i) of Terrorist\t and
\nDisruptive  Activities\t(Prevention)  Act,  1985  read\twith
\nsection\t 34 of the Indian Penal Code, 302 Indian Penal\tCode
\nread  with sections 34,436\/149, 449, 143 and 148  of  Indian
\nPenal  Code  are set aside. The conviction and\tsentence  of
\nHaroon S\/o Kalubhai Laliwala, under section 3(2)(ii) of\t the
\nTADA Act 1985 is also set aside. The appellants shall be set
\nat  liberty forthwith unless they are required in any  other
\nconnection.\n<\/p>\n
R.S.S.\t\t\t\t\t\t     Appeals\nallowed.\n120<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dilaver Hussain Son Of … vs State Of Gujarat And Anr on 5 October, 1990 Equivalent citations: 1991 AIR 56, 1990 SCR Supl. (2) 108 Author: R Sahai Bench: Sahai, R.M. (J) PETITIONER: DILAVER HUSSAIN SON OF MOHAMMADBHAILALIWALA ETC. Vs. RESPONDENT: STATE OF GUJARAT AND ANR. DATE OF JUDGMENT05\/10\/1990 BENCH: SAHAI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-187070","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDilaver Hussain Son Of ... vs State Of Gujarat And Anr on 5 October, 1990 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dilaver-hussain-son-of-vs-state-of-gujarat-and-anr-on-5-october-1990\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dilaver Hussain Son Of ... vs State Of Gujarat And Anr on 5 October, 1990 - 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