Aher Bhagu Jetha v. the State of Gujarat

Judgment

The Judgment of the Court was delivered by rha Bto. J.:-The appellant, Ahir Bhagu Jet!Ja, is one of the IS p.:rsons 28thttd Wrth the o)Tcnce of rioting armed with deadly weapons, on the S of June, 1?68, at about 7 ·30 p. m. nt the viii ago Kumbharia in batk tate of GuJarat. This riot, which was alleged to h11ve a communal pet'<i ground~ w~s suid to havo resulted in simple injuries to severar ~I·· 00 ~~ grJcvous inJ'uries to other< und the death of Lalmamad •flaJI, 'the ~1J1t:d Sessions Judge of Kutch, who tried the ~nse, a~quitted ~ bttn co Pt:r~ons and convicted the rest of various oflcnces sa.Jd to have 1... Jler~ns ~muted in the course of the riot. Out of those, stx.accused ·~2 Sup, o,? 4 111cluding tht: uppellant, were convicted. under Secuon 302. [1974] 2 s.c.tt. I.P.C. read wi·h ~. 149, I. P. C. and ~'lntenced to im"risonment for life. On an appC'al to th~ Hi~h Court flf Ol•jarat, the whole story of riot, as ~ct up, w1n disb:-licvc:d. Seven convicttd J'1Crsons were acauitted.

The 1\J'tO•IJant nlonc was ~l"nvictcd under ~. 302, I. P. C. and 'cntcnrc:d to life impri~rnment, Anrther acc1•~cd, whro die! nl"t ap~eal. nnd. who was ccnvictcd vnder a, 324, I. P. C. nnTy ancf ~e-nten· ced to 9 months rigorous imprisonmf.nt and to pay a .fine of Rs. 300/· is not befC'rc us. We are, therefore, concerned only with th~ case against Bhagu J'th11 who has b~cn convicted by th"' Hi~h Court for an offence punishable under ~. 302. I. P. C., althou~h he was ~harged and convicttd of an dfencc 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. l49I. P. C. No separate charge was fram~d under s. 302 I. P. C. simpliciter. We need not consider the effect of the omission in this cue 1\S we arc satisfied. for reasons given below, that the appeal must be allowed on a bare examination of all~gations and evidence in the case.

The two groups, between which tension existed, prior to the occurrence, consisted of Ahirs, who arc Hindu, and Sarna~. who are Muslims, over the taking out of "tazia'' processions during Mohurrum. On the day of occurrence, Bhuraji Ravji and Ranaji Viraji, of the Samas community. were said to be sitting at the entrance of the Samas IC!cality when Govan Mandam, an Ahir, objected to it on the ground that Ahir women folk 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 drag~d Lalmamad towards a dunghill.

At that tim~. a number of Ah1rs are said to have collcct~d 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 L'llmamad, is also alleged to have been injured. Shrimati Jambai, P. W. 8., the wife ofNandaji, who is alleged to 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 a!Jeged 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 men. tioned, and Lalmarnad, Ranaji and Nandaji. are shown to have been injun;d. No injuries on the person of the appellant were mentioned.

The High Court, in the course of a fairly elaborate judgm~nt. · came to the conclusion that th~ origin of the incident set up, intended to suggest that the Ahirs picked up p. 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 Ahlr and -Samas comparrmentalised localities. It pointed out that no ·quarrel over the taking of water from any well or AHER BHAGU JET}V. v, GUJAR.AT (Beg,/,) pnnd from the Same.s lrcalhy by Ahir women folk had evr:r b:fore taken plac~. It also c~ m, to ·th'l conclusion that the story that the Lalmamad was dragaed SO feet by the Ahin before he was assaulted and killed was untrue. The pNt-mortem report shows that there were no marks rf dragging ('n the bcdy of Lalmamad. No clothing of the deceased was proved to be torn.

It pointed out that all the prcseculion witnesses ~poke cf an !\t'ack upon the dcmased Lalmamad beg1.1n by a heavy blow on the head given by Megha Bhima (acquitted accused pencn) 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 bC~dy 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 app:;-llant, 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 courEe of the riot or after it, became most improbable.

The High Court, while, discarding the case of an unlawful assembly, as set llp by the evidence of the prosecution witnessf.s, had held the appellant guilty of murd~ring 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 ap. pellant 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 post-mortem examination :

""(here was only one injury on the neck mentioned in the column No. 7. The mustoid b:me 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 g• or less, and it depends on injury of the weapon from the back side of the neck upto the chest. The wound startt:d frcm the middle of the back of neck. There was no injury on the teeth but the jaw bone was exposed. This injury was pp~ible by one blow''. SUPREl--iB COURT REPORTS [1974]

2 S,f:,R. · The injury on the body of Lalmamad belies the whole prose case that a body of persons. bad fallen upo!l ~alma mad and do~~~n .\ to death and that a Dhanya blow was mjlicted by the appellant ~ the course of that attack .. :rhe plac.c wher~ I;almamad had fallen as well as the nature of the IOJllry on Ius nee)<: md1cates that it was most probable tllat Lalmamad was caught alone tn the dark ncar the Ah· , locality by somebody who cut his neck with a weapon like a Dhari~~ Night had fallen then. It could not be asserted, on the evidence on a record, that the person who cut the r.~ck ofLahnamad, was nece>sarily the appellant. It is not uncommon in cases of a communal nature to find witncsltl coming forward to depose falsely about an attack by a person 11ho is believed to be guilty. Apparen!ly, this is why the witnesses had tried to involve the appellant "hose participation in the occurren,'l:

C seemed to them to be establi>t.ed by his h;wing 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 Lal· mamad. But. a court of justice has to sift and analyse evi<knce v!ry cardully; sot as to determine w hcther 1 he case against an accused person is established beyond r.:asonable doubt. This is particularly necessary in a case with a ccmmunal bnckground in \\hieh parti;Jn witnesses may depose fabely out of a mi swk~n or misplaced ~cnse of a group loyalty. The result is that we allow this appeal and set aside the con\icti~n and sentence of the appellant. who will be released forthwith uni<!'S wanted In some other connection. V.P.S. I l l