Arif & Ors Vs. The State of Gujarat  INSC 1245 (3 October 1996)
Mukherjee, S.P. Kurdukar M.K. Mukherjee, J.
CRIMINAL APPEAL NO. 387 OF 1993 The State of Gujarat V. Mohamed Arif & Ors.
persons were tried by the Additional Designated Court, Ahmedabad under Sections
143, 147, 148, 302/149, 452, 395, 435, 436, 427, 323, 336 and 188 of the Indian
Penal Code, Section 105(1) of the Bombay Police Act and Section 3(2) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA' for short).
On conclusion of the trial the Designated court acquitted three of them of all
the charges and convicted the four others under Section 307 read with Section
149 IPC and Section 3 (2) of TADA. Two of them were also convicted under
Section 135 (f) of the Bombay Police Act. Against their conviction and sentence
the four convicts (hereinafter referred to as the appellants) have filed one of
these appeals (Criminal Appeal No. 103 of 1995) while the other (Criminal
Appeal No. 387 of 1995) has been filed by the State of Gujarat against their
acquittal of the other offences. Bereft of details the prosecution case is as
under:- In the wake of the demolition of Babri Masjid in Ayodhya on December 6, 1992 a mob of about 700 to 1000 members
of the Muslim Community went on a rampage in the city of Ahmedabad on the following morning armed with
various deadly weapons and burning rage. After forming themselves into smell
groups they went to different parts of the city and started destroying and
damaging the shops and other properties of the members of the Hindu Community
and beating them up. The appellants were the members of one of such mobs
comprising 70/80 people which went to Khamasa Chowky under the Police Station
of Karanj and pelted stones on the houses occupied by the Hindus there, broke
the glasses and ripped the hoods of rickshaws parked on the roadside and
attempted to kill Bharat Kanaiyalal Modi.
of the appellants, who pleaded not guilty, was that they were implicated on
from examining a number of witnesses to prove the rampage, the prosecution
examined Dharat Kanaiyalal Modi (P.W.3) and has father Kanaiyalal Modi (P.W.6)
to prove that part of it, with which we are concerned in these appeals. In
narrating the incident Bharat Stated that on December 7, 1992 it or about 10
A.M. when he was engaged in cleaning his rickshaw outside his house a mob
consisting of about 60/70 persons and armed with various weapons and burning
rags came there and encircled him. One or them first attacked him with a razor
on the backside on his neck and then two other hit him, one with a glass bottle
and another with a knife.
his parents came to his rescue his mother also got an injury due to a stone
hurled at her. Thereafter both of them were taken to the hospital, where he was
operated upon and kept as an indoor patient for in days. He identified the four
appellants as members of the mob and stated that Mohd. Arif (Appellant No. 4)
with a glass bottle. As regards the other two appellants he averred that they
were carrying pipes. He lastly stated that his rickshaw was also broken and
damaged. Kanaiyalal fully supported the above testimony of his son and
identified the four appellants an some of the miscreants. He stated that they
used to visit their locality.
carefully gone through the evidence of the above two witnesses we find no
reason to disbelieve them. There is nothing on record to show that they had any
enmity with the appellants; and, though they were subjected to lengthy cross
examination the appellants could not succeed in discrediting them. Rather, we
find that their evidence stands amply corroborated by that of Dr. Anjanaben (PW
14) who examined Bharat on the same day (December 7, 1992) at 11.30 A.M. and
found three stab injuries on his person one of which on the chest and another
on the lumber region. She stated that the injury on the lumber region was of a
serious nature and he had to be operated upon to explore the depth of the
injuries. The other corroboration is furnished by the evidence of Popatji Javanji
Chavada (PW 15), a Sub- Inspector of Karanj Police Station who investigated
into the case. He testified that when he went to Khamasa Chowky on December 7,
1992 in the afternoon he found 4/5 rickshaws in a broken condition, stones
lying scattered on the road and signboards of nearby shops broken.
spite of our above discussion we do not feel it safe to sustain the conviction
of Mohd. Arif (Appellant No.1) as we find that though Bharat identified him
correctly, his father Kanaiyalal identified another accused (since acquitted)
as Mohd. Arif. He is, therefore, entitled to the benefit of reasonable doubt.
We, therefor, set aside the conviction and sentence of Mohd. Arif but uphold
the conviction and sentence of the other three appellants in Criminal Appeal
No. 103 of 1994. This appeal is thus disposed of.
as the other appeal is concerned (Criminal Appeal No. 387 of 1995) we find from
the record that the activities of the mob of which the appellants were the
members were confined to terrorising the members of the Hindu community in and
around Khamasa Chowky and attempting to commit murder of Bharat. In such
circumstances this appeal has got to be dismissed; and we order accordingly.