Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
PETITIONER:
DILAVER HUSSAIN SON OF MOHAMMADBHAILALIWALA ETC.
Vs.
RESPONDENT:
STATE OF GUJARAT AND ANR.
DATE OF JUDGMENT05/10/1990
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
RAY, B.C. (J)
PANDIAN, S.R. (J)
CITATION:
1991 AIR 56 1990 SCR Supl. (2) 108
1991 SCC (1) 253 JT 1990 (4) 282
1990 SCALE (2)788
ACT:
Indian Penal Code: Section 302--Crime emanating from com
munal Frenzy--Law makes no distinction in leading of evi-
dence or of its assessment--Held on facts prosecution left
important lacuna--Failed to prove beyond doubt dreadful
crime committed by appellants.
Terrorist and Disruptive Activities (Prevention) Act,
1985-Section 3(2) (i). Murder Reference for confirmation.
HEADNOTE:
The agitation that started in February 1985 against
government policy of reservation in the State of Gujarat
turned into communal riots of shocking magnitude between
Hindus and Muslims in March 1985, and resulted in mass
exodus of Dabgars, a Hindu community, from their houses in
the affected locality. When calm was partially restored,
some of them returned. Maniben one of the deceased however
continued to live in her house with other members of her
family.
On 9th June, 1985, due to absence of military which had
been stationed there, members of minority community con-
verged from two sides and indulged in most cowardly and
shameful act of pushing open the door of Maniben’s house,
setting fire to it, and then chaining it from outside re-
sulting in death of the lady, her two daughters, four grand-
children and son of a neighbour. Next house set ablaze was
of Navin and then many others.
Charge was framed against sixty three under Terrorist
and Disruptive Activities (Prevention) Act, 1985 and various
offences including section 302, Indian Penal Code. Fifty six
were acquitted by the Trial Judge. Those convicted have come
up in appeal. At the same time, a reference has been made
for confirmation of death sentence.
Allowing the appeals and acquitting the accused and
discharging reference. this Court,
HELD: (1) Sentiments or emotions, howsoever strong, are
neither
109
relevant nor have any place in a court of law. Acquittal or
conviction depends on proof or otherwise of the criminologi-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
cal chain which invariably comprises of why, where, when,
how and who. Each knot of the chain has to be proved, beyond
shadow of doubt to bring home the guilt. Any crack or loos-
ening in it weakens the prosecution. Each link must be so
consistent that the only conclusion which must follow is
that the accused is guilty. Heinousness of crime or cruelty
in its execution howsoever abhorring and hateful cannot
reflect in deciding the guilt. [110H; 111A-B]
(2) Credibility of witnesses has to be measured with
same yardstick, whether it is an ordinary crime or a crime
emanating due to communal frenzy. Law does not make any
distinction either in leading of evidence or in its assess-
ment. [111C]
(3) To bring home the guilt the prosecution was required
to prove the presence of witnesses, possibility of seeing
the incident by them and identification of the appellants.
[115C]
(4) From the location of Ambalal’s house it is clear
that one could see front of Maniben’s house only if he stood
in front of it with face towards west-south. But that is not
the prosecution case. In fact prosecution is silent on this
aspect. There is no whisper of the place from where the
incident was seen by the witnesses. Was it front of house of
Ambalal or inside or roof? This was very relevant as every
witness admitted that from interior of Ambalal’s house the
front of neither Maniben’s nor Navin’s house could be seen.
Evidence thus regarding possibility of seeing the appellants
from house of Ambalal is very shaky. The prosecution left an
important lacuna. [116A-C]
(5) Indentification of accused from out of the mob even
if they were known from before becomes highly doubtful.
[116G]
(6) The finding of the Judge that even though the house
of Ambalal is slightly obliquely situated as compared to the
house of Maniben, it would not at all be difficult for the
witnesses who had hid themselves in the house of Ambalal to
have correctly identified the accused, is not based on
appreciation of evidence but on imagination. [117G-H]
(7) The prosecution version suffered from serious in-
firmity. Its failure to bring on record evidence which could
establish the possibility or even probability of the witness
seeing the occurrence demolishes the whole structure. [118A]
110
JUDGMENT:
CRIMINAL APPELLATE.JURISDICTION: Criminal Appeal Nos.
259-64 of 1987.
From the Judgment and Order dated 20.4. 1987 of the
Designated Court, Ahmedabad in Terrorist Criminal Case No. 3
of 1985 with Terrorist Criminal Case Nos. 13 of 1985 and 6
of 1986.
T.U. Mehta, A.S, Quereshi, Salman Khurshid, S.H. Kureshi,
Mrs. Vimla Sinha, Ifshad Ahmed, Imtiaz Ahmed, Gopal Singh
and S.M. Qureshi for the Appellants.
P.S. Poti, M.N. Shroff, Anip Sachthey, Bimal Roy, Kai-
lash Vasdev, Ms. A. Subhashini, Chava Badri Nath Babu,
Girish Chandra, Biman Jad and Ashish Verma for the Respond-
ents.
The Judgment of the Court was delivered by
R.M. SAHAI, J. Tragic trauma of ghastly, in human and
beastly behaviour of one community against another depicted
for weeks and weeks, in this criminal appeal, forcefully, at
times, emotionally still hangs heavily. What a tragedy?
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
Eight human lives roasted alive. Five in waiting for gal-
lows. Neighbours residing peacefully for generations sharing
common happiness and sorrow even playing cricket together
suddenly went mad. Blood thirsty for each other. Burning,
looting and killing became order of the day. Even ladies
attempted to prevent fire brigade from extinguishing fire.
How pathetic and sad.
Still sadder was the manner in which the machinery of
law moved. From accusation in the charge sheet that accused
were part of unlawful assembly of 1500 to 2(100 the number
came down to 150 to 200 in evidence and the charge was
framed against sixty three under Terrorist and Disruptive
Activities (Prevention) Act, 1985 (in brief TADA Act) and
various offences including Section 302 under Indian Penal
Code. Even from that fifty six were acquitted either because
there was no evidence, and if there was evidence against
some it was not sufficient to warrant their conviction. What
an affront to fundamental rights and human dignity. Liberty
and freedom of these persons was in chains for more than a
year. For no reason. One even died in confinement.
All this generated a little emotion during submissions.
But sentiments or emotions, howsoever, strong are neither
relevant nor have any place in a court of law. Acquittal or
conviction depends on proof
111
or otherwise of the criminological chain which invariably
comprises of why, where, when, how and who. Each knot of the
chain has to be proved, beyond shadow of doubt to bring home
the guilt. Any crack or loosening in it weakens the prosecu-
tion. Each link, must be so consistent that the, only con-
clusion which must follow is that the accused is guilty.
Although guilty should not escape. But on reliable evidence
truthful witnesses and honest and fair investigation. No
free man should be amerced by framing or to assuage feelings
as it is fatal to human dignity and destructive of social,
ethical and legal norm. Heniousness of crime or cruelty in
its execution howsoever abhorring and hateful cannot reflect
in deciding the guilt.
Misgiving, also, prevailed about appreciation of evi-
dence. Without adverting to submissions suffice it to men-
tion that credibility of witnesses has to be measured with
same yardstick, whether, it is an ordinary crime or a crime
emanating due to communal frenzy. Law does not make any
distinction either in leading of evidence or in its assess-
ment. Rule is one and only one namely, if depositions are
honest and true: Whether the witnesses, who claim to have
seen the incident in this case, withstand this test is the
issue? But before that some legal and general questions
touching upon veracity of prosecution version may be dis-
posed of.
Trial under TADA Act was assailed, both, because of the
Act being ultra vires of the fundamental right guaranteed
under Constitution and absence of circumstances justifying
its extension to the State of Gujarat. For the latter no
foundation was laid therefore it was not permitted to be
raised. And the former is awaiting adjudication before
Constitution Bench from where this appeal was got delinked.
Invoking of provisions of TADA Act, in communal riot, was
attacked and it was submitted that a combined reading of
Sections 3 and 4 with explanation indicated that the Legis-
lative intention was to confine the applicability of the Act
to secessionist or insurgency activities against the State
and not to ordinary crimes for which provisions exist in the
Penal Code. Since the Constitution Bench is already ceased
of the matter we are of the opinion that these aspects too
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
can, well be raised there.
From acquittal of thirty seven accused for lack of
evidence even though they were arrested in rounding off
operation by the military, after cordoning off the area
immediately after the incident, it was vehemently argued
that it demonstrated that prosecution was not fair and there
was deliberated attempt to rope in appellants who were
well-to-do persons of the community not because they had any
hand in
112
the crime but for extraneous reasons. It was emphasised that
if persons arrested on the spot residing in the same locali-
ty could not be identified nor any evidence could be pro-
duced against them then it was clear that the case against
the appellants was also not trustworthy and they were impli-
cated either because of enemity or for oblique motive.
Although the argument did appear to be attractive on the
first flush but it was dispelled soon by the learned counsel
appearing for the State who submitted that the mistake in
charge-sheeting those accused along with appellant was
bloated out of proportion. According to him the incident for
which the appellants have been convicted and sentenced was
part of a different transaction, although it took place on
the same day, than the incident in which thirty seven per-
sons were rounded off. The learned counsel explained with
help of Colonel Sudhakar PW 21’s statement and, in our
opinion, rightly, that these arrests were made in conse-
quence of action taken by the military, on a different mob,
as it included many ladies who did not form part of earlier
mob, while attempting to bring situation under control after
the incident. Therefore, it is not possible to draw any
adverse inference against prosecution on this score.
Time, place, background and manner in which dastardly
crime was committed on 9th June, 1985 in broad daylight at
2.30 p.m. was by and large not in dispute. What started as
agitation in February 1985 against government policy of
reservation, in the State of Ahmedabad, turned into communal
riots between Hindus and Muslims in March, 1985 which went
on, continuously, for long spell resulting in enormous loss
of life and property of both the communities. Situation
deteriorated so much that military had to be called and
stationed in sensitive areas, in April, 1985, including
Dhabgarwad, a large area with Hindus and Muslims residing at
places side by side and others exclusively. In March 1985
riot of shocking magnitude had taken place in this area
resulting in mass exodus of Dabgars, a Hindu community, who
earned their livelihood by manufacturing musical instruments
such as drums and also umbrellas and kites. When calm was
partially restored, due to the military being stationed,
some of them returned and some used to visit their houses in
day time to look after their property or business. Maniben,
a dabgar, whose one of the daughters had married a muslim
but was having strained relations with him, continued to
live in her house either because she had no other place to
go or she was confident that she shall not be harmed. Howev-
er despite stationing of military incidents went on whenever
or wherever least opportunity was available with the result
that curfew was clamped, continuously, in the area from 7th
June, 1985. As ill luck would have it the military stationed
in
113
the area left for some other place at about 1.30 p.m. on 9th
June, 1985. Taking advantage of the vulnerability, due to
absence of military. members of minority community converged
from two sides and when they intermingled in the corner
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
somewhere near the house of Maniben or electric power sub-
station they indulged in most cowardly and shameful act of
pushing open the door of her house setting fire to it and
then chaining it from outside resulting in death of the
lady, her two daughters. four grand-children and son of a
neighbour. Next house set ablaze was of Navin and then many
others.
Prosecution version can thus be divided in three parts
one, entry of mob from two sides one from Magadom Pole and
other kalupur Panchpatti shouting ’kill’ ’cut’ pelting
stones, throwing acid bulbs and flambeaus on houses of
Hindus while approaching towards Nani Ali Pole. The second
was meeting of the two groups on the corner of Nani Ali Pole
and then pushing open the door of Maniben’s house by five
appellants armed with burning flambeau, iron pipe, stick,
kerosene and bottle of petrol sprinkling of kerosene or
petrol inside the house setting it ablaze then coming out of
the house closing and shutting the door and chaining it from
outside. The third was entry of appellants thereafter in the
house of Navin setting it on fire and then entering in Nani
Ali Pole with other members of mob and attacking houses of
Kantilal, Kalidas and others.
To prove it the prosecution examined twenty two witness-
es which were grouped by the trial judge in seven’. One and
the main group consisted of Navin PW 1, Ambalal PW 8, Rati-
lal PW 9, and Kalidas PW 13. These were the witnesses who
were ’said to have collected at the house of Ambalal from
where they witnessed the occurrence and the participation of
the appellants in it. The second group consisted of Kalidas
PW 7, Ramanlal PW 10, Manchharam PW 12, who were said to
have witnessed the incident from the house of Kalidas Chha-
ganlal. The third group consisted of Arun Kumar PW I 1,
Jaswantlal PW 14, Dilip Kumar PW 17 and Sanmukhbhai PW 20,
who were witnesses who are said to have arrived on hearing
the shouts and commotion and witnessed the occurrence from
near Dabgarwad Police gate. The other groups comprised of
official witnesses.
No witness was examined from any of the house situated
on either side of road from where the two mobs entered or
from any of the houses ,situated on the route through which
the. mob passed before it reached/the comer of Nani Ali Pole
to establish identity of accused. Mod which entered from
Magadom Pole side was admitted by
114
Ambalal to have passed from,the front of his house. But he
stated that he could not recognise anyone out of them.
Appellants according to prosecution were in the mob which
came from Kalupur Panchpatti. From the place from where the
mob entered and to the corner of Nani Ali Pole the mob had
to pass from a long route which is inhabited by houses on
both sides but not one witness was produced from any of
these house nor it was clearly brought out that inmates of
all these houses were of minority community only.
For the second group of witnesses who according to
prosecution, saw the occurrence from the house top of Kanti
Lal the Judge himself found that they were not in a position
to see the road in front of house of Navin nor they were in
a position to see the road in front of house of Maniben. He,
therefore, observed that so far evidence of these witnesses
in respect of attack by the mob on house of Maniben and
Navin was concerned it could be relevant only generally that
they set fire to the house. That is they could not be taken
to be witnesses to prove that appellants broke open the door
of Maniben’s house or set fire to it or chained it from
outside.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
Nor is the evidence of third group of witnesses helpful
as they had collected near the gate of police outpost.
Distance between the gate and place of incident appears to
be not less than 200 to 250 feet. Moreover they collected
after the house of Maniben was set on fire. And it was
admitted by PW 1, 8, 9 and 13 that the house of Navin,
Kantilal, Ambalal could not be seen from police outpost.
Their testimony thus cannot be taken into account for prov-
ing second part of the incident which resulted in death of
inmates of Maniben’s house.
Fate of the appellants, therefore, hangs on credibility
of first group of witnesses. For its better appreciation it
is necessary to set out topography of the place of the
incident. From the map it is clear that the house of Maniben
alongwith cluster of six other houses in surrounded on all
sides by lanes and roads. Immediately above her house is
house of Navin in North. Then there are two houses, parallel
to each other, in south of her house. There are three more
houses one after the other, in south. On west side of these
is lane. So is a lane in north side after which there is
electric sub-station. On the left of substation there is gap
and then there is one house and in its north is the house of
Kantilal. On the east of Maniben’s house is the Dabgarwad
road which runs somewhat in semi circle running from Kalupur
Panchpatti situated in extreme south east towards west,
taking turn from near Dabgarwad Police outpost in the South
moving up towards
115
north east in angle tilting slightly from somewhere near
cluster of houses round Maniben’s house and then proceeding
towards Daryapur. House of Ambalal from where first set of
witnesses had seen the occurrence is on this road from where
the road tilts. It was admitted by PW 1 that house of Amba-
lal was obliquely situated. That is clear from the map as
well. If from the two ends of the house, south and north
facing the road straight lines are drawn towards west they
shall pass through the lane in front of Navin’s house and
power station respectively. Navin PW 1 whose house is situ-
ated in north of Maniben’s house admitted that electric
sub-station was in front of Ambalal’s house. Rati Lal PW 9
stated that on one side of the road was his house and on
other of Ambalal. The house of Ambalal was thus above Mani-
ben’s house towards north-east.
To bring home the guilt the prosecution was required to
prove the presence of witnesses, possibility of seeing the
incident by them and identification of the appellants.
Importance of first arose as due to riots in March 1985
there was mass exodus of Hindus from Dabgatwad. Therefore
presence of these witnesses was attempted to be challenged
as curfew having been imposed from 7th June and Col. Sudha-
kar, PW 21, incharge of Military stationed, in the area,
having stated that no passes were issued to anyone it was
not probable that any of the witnesses who claim to have
seen the occurrence could have been present. But it appears
to be devoid of any merit in view of unimpeachable testimony
of the witnesses that they were present in their houses
either because they had come earlier after restoration of
partial calm or they had come on the day of occurrence to
see their business and they were not prevented by the police
even if they did not have any pass. The Judge had examined
this aspect in detail and found from various circumstances,
namely, restoration of partial calm due to presence of
military personnel, death of eight persons in Maniben’s
house including children, rescuing of many persons trapped
in the house of Kalidas Chhagan which too was set on fire,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
admission by accused in their statements under section 313
Criminal Procedure Code etc. that presence of these witness-
es could not be doubted. Further if the Dabgads had not
returned and the area was deserted then where was the occa-
sion for the mob to indulge in this vendetta.
But mere presence of witnesses was not sufficient. More
important was if they saw the incident. It assumed impor-
tance due to two reasons one because entire set of witnesses
saw the incident from house of Ambalal which was situated
upwards on the road towards north-east as compared to the
house of Maniben, and second that each
116
of the witnesses including Ambalal admitted that the exteri-
or of Maniben’s or even Navin’s house could not be seen from
interior of the house. From the location of Ambalal’s house
it is clear that one could see front of Maniben’s house only
if he stood in front of it with face towards west-south. But
that is not the prosecution case. In fact prosecution is
silent on this aspect. There is no whisper of the place from
where the incident was seen by the witnesses. Was it front
of house of Ambalal or inside or roof. Prosecution did not
make any effort to remove this defect, obviously, because
the investigation itself suffered from this flaw.Although
the defence, also, did not make any attempt to get it clari-
fied, may be as a part of clever design as to from where
these witnesses saw the occurrence but the disadvantage, if
any is of prosecution. As stated earlier, this was very
relevant as every witness admitted that from interior of
Ambalal’s house the front of neither Maniben’s nor Navin’s
house could be seen. Evidence thus regarding possibility of
seeing the appellant from house of Ambalal is very shaky.
The prosecution left an important lacuna.
Unfortunately, each witness’ not only stated that he saw
the appellants but they went on to describe with remarkable
similarity in detail the article which each accused had in
his hand: What is surprising is that accused had come from
Kalupur side therefore they could not have been seen prior
to their arrival near electric sub-station before which
everyone had entered house of Ambalal yet it is they and
they alone who could be identified from the entire mob. PW 1
admitted that when he rushed from his house in fear the mob
of Kalupur side was 40 or 50 feet away. He also admitted
that he saw these accused for the first time from the house
of Ambalal from a distance of 20 feet. No subsequent witness
tried to explain it. Others had reached admittedly prior to
Navin. Therefore, they could not have had occassion to see
the Kalupur mob and if they saw then it must have been at a
longer distance. Statement of PW 9, therefore, that the
appellants were leading the mob is very difficult to be
accepted. And if they saw for the first time from house of
Ambalal, as stated by Navin and not improved upon by others,
then it is very difficult to accept that they could have
identified these appellants. PW 1 further admitted that if
anyone stood with his face towards house of Maniben his then
his back only could be visible from Ambalal’s house. That is
clear from map as well. Therefore identification of accused
from out of the mob even if they were known from before
becomes highly doubtful.
Out of persons who had collected at house of Ambalal
only four were examined. It was admitted by every witness
that the last to enter
117
the house were Navin and his father. Time of entry as given
by witnesses was before mixing of the mob at the corner
except Ambalal who stated that he came after the mob had
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
collected. But that appears to be improbable as he was so
scared that he ran with his father without even closing door
of his house. And if he would have come out when mob had
collected then it is difficult to believe that he would have
been spared when his house too was burnt. Navin was the
first witness to be examined. He stated, categorically, that
when he entered the house of Ambalal it was closed from
inside. It was attempted to be improved upon by Ambalal who
stated that he kept the door ajar. But apart from normal
human behaviour to close the door, for protection in the
background of incident of March and fear generated by shout
of ’kill’, and ’cut’, the other witnesses PW 9 and PW 13 too
stated that the door was closed after entry of Navin. In any
case the incident having taken place after entry of Navin
and the door having been closed thereafter or even ajar or
half closed it was necessary for prosecution to establish
how did the witnesses see the occurrence when they admitted
that the exterior of Maniben’s house or even of Navin could
not be seen from inside of Ambalal’s house. The deficiency
in prosecution version was attempted to be explained by the
judge by adverting to evidence of PW 13 that Ambalal was
opening and closing the door every now and then, therefore
there was nothing improbable in witnesses having seen the
occurrence. But the approach was, both, faulty and illegal.
The conclusion by picking up isolated sentence without
adverting to other parts of his statement where he admitted
that after entry, of all, the doors of the house were
closed, and, he was able to identify the appellants when
they were effecting entry in house of Maniben and that he
did not identify anyone out of the mob till he entered the
house of Ambalal was contrary to rule of appreciation of
evidence. Reading the whole statement together makes it
consistent with evidence of other witnesses and leaves no
room for doubt that opening and closing the door was resort-
ed to let in the persons who were reaching house of Ambalal
due to fear of mob. And the exercise of opening and closing
being over after entry of Navin seeing the mob or identify-
ing the accused in process of opening and closing was out of
question. The finding of the judge, thus, that ’it is not as
if that once the door of the house of Ambalal was closed it
was never opened again at any time before these persons
escaped from the house of Ambalal ..... Therefore, even
though the house of Ambalal is slightly obliquely situated
as compared to the house of Maniben, it would not at all be
difficult for these witnesses who had hid themselves in the
house of Ambalal to have correctly identified the accused’,
is not based on appreciation of evidence but on imagination.
118
Thus prosecution version suffered from serious infirmi-
ty. Its failure to bring on record evidence which could
establish the possibility or even probability of the witness
seeing the occurrence demolishes the whole structure. Since
it was admitted to all the P.W.s that the exterior of Mani-
ben’s house could not be seen from interior of Ambalal’s
house the prosecution could succeed in establishing its case
only if it could prove that witnesses even then could have
seen the occurrence. The only possibility of seeing the
occurrence could be either from the road or standing in
front of Ambalal’s shop or if there was any source from
inside house of Ambalal. Evidence is lacking for either.
Possibility of the first two alternative from where incident
could have been seen is out of question. Witnesses were so
terrified due to incident of March 1985 that they could not
remain outside. PW 1 was so afraid that he rushed with his
father without even closing door of his house. And if he
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
would have come out when mob had reached house of Maniben
was stated by Ambalal then there would have been every
possibility of his being attacked. PW 9 and 13 too were
afraid and rushed to Ambalal’s house. Every time these
witnesses reached the door was opened and after entry it was
closed. Last man to enter was Navin Chandra. No witness has
stated that it was opened thereafter even once to look
outside. How did then these witnesses see pushing open of
Maniben’s door by appellants, setting fire to her house and
chaining from outside. It was for prosecution to explain. It
could not be taken for granted merely because each witness
repeated that they knew the appellant from childhood and
each of them was armed with articles mentioned in their
hand. Ambala1 did state that the door of his shop had seven
planks joined by hinges. But the prosecution stopped there.
It did not dare to come out with the case that the witnesses
saw from the crevices. Therefore the prosecution version
suffered from a lacuna which was fatal. The doubt thus
created if the witnesses saw the occurrence at a11 is
strengthened by subsequent conduct and behaviour of these
witnesses. The prosecution version was that the moment the
mob moved from house of Maniben to house of Navin Chandra
towards Nani Ali Pole side the witness came out of Ambalal’s
house and dashed towards police gate where large number of
persons had collected. But strangely not one of them told it
to anyone present there or even to police personnel that
Maniben’s house was burnt by appellants. It was against
normal human behaviour as all the appellants were known from
before. The incident had taken place due to communal frenzy.
It is, therefore, difficult to believe that once these
witnesses reached Dabgarwad Police gate they would not have
shouted at top of their voice that the appellants known as
Lallewallas had killed Maniben. What is further surprising
is that they did not disclose the
119
names even to Manchharam whose son had been burnt alive in
house of Maniben, nor to anyone in the hospital and kept
their mouth sealed till 11th June 1985 and opened it for the
first time in the Police Station when their statement was
recorded giving graphic description step by step. Not only
that the PW 9 and 13 broke down in cross examination and
admitted that they had not seen the appellants setting fire
to the house of either Maniben or Navin. They were saying so
by inference as they had seen smoke coming from the houses.
Thus witnesses and circumstances both are against prosecu-
tion version. Although there are contradiction on material
aspects in statement of these witnesses and arguments were
addressed on late recording of evidence, failure to produce
the Chief Fire Officer, to establish if house was chained
’from outside, delay in preparation of panchnama of Mani-
ben’s house etc. but we consider it unnecessary to discuss
them as the prosecution, in our opinion, failed to prove
beyond shadow of doubt that the dreadful crime was committed
by appellants. There is thus no option but to acquit these
accused. We, however, hope that our order shall bring good
sense to members of both the communities residing in Dabgar-
wad and make them realise the disaster which such senseless
riots result in and they shall in future take steps to avoid
recurrence of such incidents and try to resort to the atmos-
phere that prevailed before March 1985.
For the reasons stated above all these appeals succeed
and are allowed. Reference No. 1 of 1987 for confirmation of
death sentence is discharged. The conviction and sentences
of appellants herein under section 3(2)(i) of Terrorist and
Disruptive Activities (Prevention) Act, 1985 read with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
section 34 of the Indian Penal Code, 302 Indian Penal Code
read with sections 34,436/149, 449, 143 and 148 of Indian
Penal Code are set aside. The conviction and sentence of
Haroon S/o Kalubhai Laliwala, under section 3(2)(ii) of the
TADA Act 1985 is also set aside. The appellants shall be set
at liberty forthwith unless they are required in any other
connection.
R.S.S. Appeals
allowed.
120