{"id":266022,"date":"1973-11-27T00:00:00","date_gmt":"1973-11-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aher-bhagu-jetha-vs-the-state-of-gujarat-on-27-november-1973"},"modified":"2018-01-17T01:03:33","modified_gmt":"2018-01-16T19:33:33","slug":"aher-bhagu-jetha-vs-the-state-of-gujarat-on-27-november-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aher-bhagu-jetha-vs-the-state-of-gujarat-on-27-november-1973","title":{"rendered":"Aher Bhagu Jetha vs The State Of Gujarat on 27 November, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Aher Bhagu Jetha vs The State Of Gujarat on 27 November, 1973<\/div>\n
Equivalent citations: 1974 AIR 292, 1974 SCR (2) 477<\/div>\n
Author: M H Beg<\/div>\n
Bench: Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nAHER BHAGU JETHA\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF GUJARAT\n\nDATE OF JUDGMENT27\/11\/1973\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nCHANDRACHUD, Y.V.\n\nCITATION:\n 1974 AIR  292\t\t  1974 SCR  (2) 477\n 1974 SCC  (3) 653\n\n\nACT:\nPractice and Procedure Criminal trial--Case with a  communal\nbackground-Assessment of evidence.\n\n\n\nHEADNOTE:\nA  riot\t which\twas alleged to have  a\tcommunal  background\nresulted  in  the  death  of  a\t person.   The\ttrial  court\nconvicted  the appellant and some others under s.  302\tread\nwith  s.  149, I.P.C<\/a>. The High Court, in  appeal,  convicted\nonly  the  appellant under s. 3020<\/a>. The\t High  Court,  while\ndiscarding  the case of unlawful assembly as set up  by\t the\nprosecution held the appellant guilty of murder only because\nthe  appellant\twas found lying injured near  the  scene  of\noccurrence  and had pleaded that he was attacked by a  group\nof members of the Muslim community.\nAllowing the appeal to this Court,\nHELD  : The High Court had not given due importance  to\t the\nfact  that the appellant had serious injuries on  his  body.\nThe  High Court dismissed his statement that he had  only  a\nstick with him without examining the credibility of his ver-\nsion  which was supported by the fact that only a stick\t was\nfound  near him; while the only injury on the  deceased\t was\ncaused by a sharp edged weapon.\t It is not uncommon in cases\nof  a  communal nature to find witnesses coming\t forward  to\ndepose\tfalsely about an attack by a person who is  believed\nto be guilty, and, partisan witnesses may depose falsely out\nof  a mistaken or misplaced sense of group loyalty.  In\t the\npresent\t case,\tthe participation of the  appellant  in\t the\noccurrence  might have seemed to the witnesses to have\tbeen\nestablished by his having been found lying near the scene of\noccurrence  in an injured condition.  This may be enough  to\nconvince  unsophisticated persons of his complicity  in\t the\nmurder,\t but a court of justice has to sift and analyse\t the\nevidence  very\tcarefully,  particularly in a  case  with  a\ncommunal  background, to determine whether the case  against\nthe accused is established beyond reasonable doubt. [479E-F;\n480B-D)\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  151 of
\n1970.\n<\/p>\n
Appeal\tby Special Leave from the judgment and\torder  dated
\nthe  25th March 1970 of the Gujarat High Court at  Ahmedabad
\nin Criminal Appeal No. 517 of 1969.\n<\/p>\n
N.   P. Maheshwari, for the appellant.\n<\/p>\n
S.   N.\t Anand,\t M.  N.\t Shroff and S.\tP.  Nayar,  for\t the
\nrespondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nBEG.   J.-The appellant, Ahir Bhagu Jetha, is one of the  18
\npersons\t charged  with the Offence of  rioting,\t armed\twith
\ndeadly weapons, on, 28th of June, 1968 ‘ at about 7 30 p. m.
\nat  the\t village Kumbharia in the State\t of  Gujarat.\tThis
\nriot,  which was alleGed to have a communal background,\t was
\nsaid  to  have\tresulted  in  simple  injuries\tto   several
\npersons,  grievous  injuries  to others, and  the  death  of
\nLalmamad Murvaji.\n<\/p>\n
The Sessions Judge of Kutch, who tried the case, acquitted 9
\naccused\t persons and convicted the rest of various  offences
\nsaid to have been committed in the course of the riot.\t Out
\nof those, six accused persons, including the appellant, were
\nconvicted under Section 302<\/a>,
\n5-<\/a>-602 Sup.CI\/74
\n478<\/span>
\nI.P.C<\/a>.\tread  with  s.\t149<\/a>,  I.  P.  C.  and  sentenced  to
\nimprisonment  for life.\t On an appeal to the High  Court  of
\nGujarat,   the\twhole  story  of  riot,\t as  set   up,\t was
\ndisbelieved.   Seven convicted persons were acquitted.\t The
\nappellant  alone  was convicted under s. 302<\/a>, I. P.  C.\t and
\nsentenced  to life imprisonment.  Another accused,  who\t did
\nnot  appeal,  and who was convicted under s. 324<\/a>, I.  P.  C.
\nonly and sentenced to 9 months rigorous imprisonment and  to
\npay a fine of Rs. 300\/is not before us.\t We are,  therefore,
\nconcerned  only\t with the case against Bhagu Jetha  who\t has
\nbeen  convicted by the High Court for an offence  punishable
\nunder  s.  302<\/a>,\t I.  P. C.,  although  he  was\tcharged\t and
\nconvicted of an offence punishable under s. 302<\/a> I.P.C.\tonly
\nwith  the aid of s. 149 I. P. C. As the charge\tfor  rioting
\nfailed,\t he was not and could not be convicted with the\t aid
\nof  s. 149 I. P. C. No separate charge was framed  under  s.
\n302  I. P. C. simpliciter.  We need not consider the  effect
\nof  the\t omission  in this case as  we\tare  satisfied,\t for
\nreasons\t given below, that the appeal must be allowed on-  a
\nbare examination of allegations and evidence in the case.
\nThe two groups, between which tension existed, prior to\t the
\noccurrence,  consisted of Ahirs, who are Hindu,\t and  Samas,
\nwho are Muslims, over the taking out of “tazia”\t processions
\nduring\tMohurrum.  On the day of occurrence,  Bhuraii  Ravii
\nand  Ranaji Viraji, of the Samas community, were said to  be
\nsitting\t at   the trance of the Samas  locality\t when  Govan
\nMandam,\t an  Ahir, objected to it on the  ground  that\tAhir
\nwomenfolk  had to pass that way for fetching  water  Bhuraji
\nand  Ranaji were alleged to have expostulated and said\tthat
\nthey  were  doing no wrong in sitting outside in  their\t own
\nlocality and that the Ahir ladies are like their own sisters
\nand  daughters\tto  them.   It is  said\t that  the  deceased
\nLalmamad  then\tappeared at the scene and took the  side  of
\nBhuraji and Ranaji.  Thereupon, Govan Mandan (acquitted)  is
\nalleged\t to  have dragged Lalmamad towards a  dunghill.\t  At
\nthat time, a number of Ahirs are said to have collected\t and
\nfallen upon Lalmamad,who was thus said to have been done  to
\ndeath.\t It  was  also alleged that Ahirs  threw  stones  at
\nmembers of the Samas community, as a result of which Bhuraji
\nand  Ranaji were injured.  One Nandaji, who is said to\thave
\ntried  to  save\t Lalmamad,  is also  alleged  to  have\tbeen
\ninjured.   Shrimati Jambai, P. W. 8., the wife\tof  Nandaji,
\nwho  is alleged lo have come to the scene of occurrence\t and
\ncovered\t her husband, was also injured An F.I.R. was  lodged
\nat  noon  on  29-6-68 by a cousin of  Lalmamad\twho  alleged
\nhaving\tseen  the attack on Lalmamad and to have  been\tnear
\nLalmamad  (deceased)  when  he was actually  struck  by\t the
\nappellant  by  a Dharia.  In this F.I.R. only  four  accused
\npersons,   including  the  appellant,  are  mentioned,\t and
\nLalmamad,  Ranaji  and\tNandaji,  are  shown  to  have\tbeen
\ninjured.   No injuries on the person of the  appellant\twere
\nmentioned.\n<\/p>\n
The  High  Court,  in  the  course  of\ta  fairly  elaborate
\njudgment,  came\t to the conclusion that the  origin  of\t the
\nincident  set up, intended to suggest that the Ahirs  picked
\nup  a quarrel deliberately by saying that their\t women\tfolk
\nwere  to  take\twater  from the\t Samas\tlocality,  was\tmost
\nimprobable  in view of the previous tension and division  of
\nthe   village\tinto  Ahir   and   Samas   compartmentalised
\nlocalities.  It pointed out that no quarrel over the  taking
\nof water from any well or
\n479<\/span>
\npond  from  the Samas locality by Ahir women folk  had\tever
\nbefore taken place.  It also came to the conclusion that the
\nstory  that  the Lalmamad was dragged 50 feet by  the  Ahirs
\nbefore\the  was\t assaulted  and\t killed\t was  untrue.\t The
\npostmortem report shows that there were no marks of dragging
\non  the body of Lalmamad.  No clothing of the  deceased\t was
\nproved to be torn.  It pointed out that all the\t prosecution
\nwitnesses  spoke  of an attack upon  the  deceased  Lalmamad
\nbegun  by  a  heavy blow on the head given  by\tMegha  Bhima
\n(acquitted  accused person) with a Lathi which had  an\tiron
\nring  attached to it.  This version was belied by  the\tonly
\ninjury\twith  a\t sharpedged  weapon found  on  the  body  of
\nLalmamad (deceased).  The serious injuries of the appellant,
\nwho was also found lying on the road, could not be explained
\nby the prosecution version.  It was also found that a  stick
\nand not a Dhariya was found lying beside the appellant.\t  No
\none  spoke of the Dhariya, alleged to have been used by\t the
\nappellant, having been taken away from the scene by anybody.
\nTherefore, the whole story of an attack by the appellant  on
\nLalmamad, deceased, with a Dhariya, either in the course  of
\nthe riot or after it, became most improbable.
\nThe  High  Court, while discarding the case of\tan  unlawful
\nassembly,  as  set  up by the evidence\tof  the\t prosecution
\nwitnesses,  had\t held  the  appellant  guilty  of  murdering
\nLalmamad  only because the appellant was  undoubtedly  found
\nlying  injured\ton  the spot and had  pleaded  that  he\t was
\nattacked  because  he had objected to the beating of  a\t boy
\nnamed  Duda  Pachan  by\t a group of  members  of  the  Samas
\ncommunity  approaching\twith Dhariya,  spears,\tsticks,\t and
\naxes.\tThe  High  Court had found that\t the  appellant\t had
\nserious injuries on his body.  We think that the High  Court
\nhad not given due importance to this fact and had  dismissed
\nthe statement of the appellant that he had only a stick with
\nhim,  without  examining  the credibility  of  this  version
\nsupported by the fact that only a stick was found lying near
\nthe appellant who was so badly injured that he could not get
\nup.\n<\/p>\n
There was only one injury found on the body of Lalmamad.  It
\nwas  described\tas  follows by Dr. D.  A.  Joshi,  who\talso
\nperformed the postmortem examination :\n<\/p>\n
\t      “There  was  only\t one  injury  on  the\tneck
\n\t      mentioned\t in  the column No. 7.\tThe  mustoid
\n\t      bone was not fractured.  The wound was 9″ long
\n\t      4″ broad and 3″ in depth.\t The place where the
\n\t      impact of the weapon would take place will  be
\n\t      deeper.  The depth of the wound 3″ shown by me
\n\t      is the maximum depth which I found and it\t was
\n\t      at  the back of the neck.\t The breadth of\t the
\n\t      injuries\tdoes not depend upon the breadth  of
\n\t      the  Dhariya.. The width is  correlative\twith
\n\t      the  depth of the wound.\tI was not  sent\t any
\n\t      weapon.  The wound is also possible by an\t axe
\n\t      having  a blade 9″ or less, and it depends  on
\n\t      injury of the weapon from the back side of the
\n\t      neck  upto the chest.  The wound started\tfrom
\n\t      the middle of the back of neck.  There was  no
\n\t      injury  on  the  teeth but the  jaw  bone\t was
\n\t      exposed.\t This  injury was  possible  by\t one
\n\t      blow”.\n<\/p><\/blockquote>\n
480<\/span><\/p>\n
The  injury  on\t the  body  of\tLalmamad  belies  the  whole
\nprosecution  case  that a body of persons  had\tfallen\tupon
\nLalmamad  and done him to death and that a Dhariya blow\t was
\ninflicted  by  the appellant in the course of  that  attack.
\nThe place where Lalmamad had fallen as well as the nature of
\nthe  injury on his neck indicates that it was most  probable
\nthat  Lalmamad was caught alone in the dark near the  Ahirs’
\nlocality  by somebody who cut his neck with a weapon like  a
\nDhariya.  Night had fallen then.  It could not be  asserted,
\non the evidence on record, that the person who cut the\tneck
\nof Lalmamad, was necessarily the appellant.
\nIt  is\tnot uncommon in cases of a communal nature  to\tfind
\nwitnesses  coming forward to depose falsely about an  attack
\nby a person who is believed to be guilty.  Apparently,\tthis
\nis  why\t the witnesses had tried to ‘involve  the  appellant
\nwhose  participation in the occurrence seemed to them to  be
\nestablished by his having been found lying on the road in an
\ninjured\t  condition.   This  may  be  enough   to   convince
\nunsophisticated\t persons of his complicity in the murder  of
\nLalmamad.   But, a court of justice has to sift and  analyse
\nevidence very carefully’ so as to determine whether the case
\nagainst\t an accused person is established beyond  reasonable
\ndoubt.\t This  is particularly necessary in a  case  with  a
\ncommunal  background in which partisan witnesses may  depose
\nfalsely\t out  of a mistaken or misplaced sense\tof  a  group
\nloyalty.\n<\/p>\n
The  result is that we allow this appeal and set  aside\t the
\nconviction  and\t sentence  of the  appellant,  who  will  be
\nreleased forthwith unless wanted in some other connection.
\nV.P.S.\n<\/p>\n
Appeal allowed,
\n481<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Aher Bhagu Jetha vs The State Of Gujarat on 27 November, 1973 Equivalent citations: 1974 AIR 292, 1974 SCR (2) 477 Author: M H Beg Bench: Beg, M. Hameedullah PETITIONER: AHER BHAGU JETHA Vs. RESPONDENT: THE STATE OF GUJARAT DATE OF JUDGMENT27\/11\/1973 BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, […]<\/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-266022","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAher Bhagu Jetha vs The State Of Gujarat on 27 November, 1973 - 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\/aher-bhagu-jetha-vs-the-state-of-gujarat-on-27-november-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aher Bhagu Jetha vs The State Of Gujarat on 27 November, 1973 - 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