Hussain Son of Mohammad Bhailaliwala Vs. State of Gujarat & Anr  INSC
303 (5 October 1990)
R.M. (J) Sahai, R.M. (J) Ray, B.C. (J) Pandian, S.R. (J)
1991 AIR 56 1990 SCR Supl. (2) 108 1991 SCC (1) 253 JT 1990 (4) 282 1990 SCALE
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.
and Disruptive Activities (Prevention) Act, 1985-Section 3(2) (i). Murder
Reference for confirmation.
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.
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.
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
the appeals and acquitting the accused and discharging reference. this Court,
(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- 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]
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.
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
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.
thus regarding possibility of seeing the appellants from house of Ambalal is
very shaky. The prosecution left an important lacuna. [116A-C]
of accused from out of the mob even if they were known from before becomes
highly doubtful. [116G]
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]
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
APPELLATE.JURISDICTION: Criminal Appeal Nos. 259-64 of 1987.
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.
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.
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.
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? 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.
pathetic and sad.
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.
this generated a little emotion during submissions.
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.
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.
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.
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.
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 can, well be raised there.
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.
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.
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 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.
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.
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.
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.
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
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.
the evidence of third group of witnesses helpful as they had collected near the
gate of police outpost.
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.
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.
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.
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
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, 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.
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
prosecution left an important lacuna.
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.
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 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.
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.
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
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 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.
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.
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.
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.
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 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.