LexDILAVER HUSSAIN SON OF MOHAMMADBHAL LALIWALA ETC. versus STATE OF GUJARAT AND ANR.
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DILA VER HUSSAIN SON OF MOHAMMADBHAl
LAUW ALA ETC.
v.
STATE OF GUJARAT AND ANR.
OCTOBER 5, 1990
[B.C. RAY, S.R. PANDIAN AND R.M. SAHA!, JJ.]
Indian Penal Code: Seaion 302-Crime emanating from com-
munal Frenzy-Law makes no distinction in leading of evidence or of
its .assessment-Held on facts prosecution left important lacuna--
Failed to prove beyond doubc dreadful crime committed by appellants.
Terrorist and Disruptive Activities (Prevention) Act, 1985-
Section 3 (2 J ( i). Murder Reference for confirmation.
The agitation that started in February 1985 against government
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policy of reservation in lhe 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 con-
tinued to live in her house with other members of her family:
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On 9th June, 1985, due to absence of military which had been
stationed there, members of minority community converged from two
sides and indulged in most cowardly and shamefUI act of pushing open
the door of Maniben's house, setting fire to it, and then chaining it from
outside resulting in death of the lady, her two daughters, four grand- ·
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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 Dis-
ruptive Activities (Prevention) Act, 1985 and variolls offences including
section 302, Indian Penal Code. Fifty six were acquitted by the Trial
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Judge. Those convicted have come up in appeal. At the same time, a
reference has been made for confirmation of death sentence.
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Allowing the appeals and acquitting the accused and discharging
reference. this Court,
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HELD: (1) Sentiments or emotions, howsoever strong, are neither
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DJLAVER v. STATE OF GUJARAT
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relevant nor have any place in a court of law. Acquittal or conviction
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depends on proof or otherwise of the criminological chain which in-
variably 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 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
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in its execution howsoever abhorring and hateful cannot reflect in
deciding the gnilt. [UOH; lllA-8]
(2) Credibility of witnesses has to be measured with same yard-
stick, whether it is an ordinary crime or a crime emanating due to
communal frenzy. Law does not make any distinction, either in leading of C
evidence or in its assessment. [111q
(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. [USC]
( 4) From· the location of Ambalal's house it is clear that one could
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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 pro-
secution 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
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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]
( S) Indentification of accused from out of the mob even if they
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were known from before becomes highly doubtful. [116G I
(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
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the accused, is not based on appreciation of evidence but on imagina-
tion. [117G-H]
(7) The prosecution version suffered from serious infirmity. Its
failure to bring on record evidence which could establish the possibility
or even probability of the witness seeing the occurrence demolishes the
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whole structure. [i18A]
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SUPREME COURT REPORTS
I 1990] Supp. 2 S.C.RExcerpt shown. Read the full judgment & AI analysis in Lexace.