MEHBUB SAMSUDDIN MALEK AND ORS. versus STATE OF GUJARAT

Citation: [1996] SUPP. 5 S.C.R. 136 · Decided: 23-08-1996 · Supreme Court of India · Bench: G.N. RAY · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
MEHBUB SAMSUDDIN MALEK AND ORS. 
v. 
ST A'fE OF GUJARAT 
AUGUST 23, 1996 
(G.N. RAY AND G.T. NANAVATI, J.T.) 
Criminal Law : 
Penal Code, 1860 : Sections 120-A and 120-B. 
Criminal conspiracy-Accused Driver stopped the bus near a mob 
anned with weapons-In spite of request of passengers to sta1t the bus accused 
did not start the bus before the mob could approach it-!11stead accused got 
down from the bus, we11t upto the mob and had some discussion with persons 
of that mob-field : accused facilitated attack 011 passengers-In the cir-
D cumstances of the case, 01i agreement between accused and the said unlawful 
assembly was established-Hence, his conviction under s.120-B deserved to 
be upheld. 
Evidence Act, 1872 : Sections 9 and 27. 
E 
lde11tiftcati01r-Failure of witness to identify all accused at identifica-
tion parad(~eld : his evidence regarding identification of some of those 
accused could not be rejected. 
ldentiftcati01r--Commu11al riot-Accused identified by witness as the 
person who had given gupti blow to deceased-Discrepancy as regards height 
F of accused whom he identified-Witness saw accused giving a blow to 
deceased with a dangerous weapon-Delay of 12 days in recording statement 
of witnes~Held : it was quite probable that the attention of the witness was 
focussed on the face of the accused-In the circumstances of the case, 
discrepancy regarding height could not be given any importance-This being 
G a case of communal riot witness might have been reluctant to go to 
"polic~ence, delay of 12 days in recording his statement was immaterial. 
Discovery of gupti at instance of accused from dilapidated building 
concealed below heap of ea1th-gupti found stai11ed with human blood of 'B' 
Group-Clothes of deceased also stained with blood of 'B' Group-Accused 
H denied discovery of gupti--Held : evidence regarding discovery of gupti could 
136 
' .. 
MEHBUB SAMSUDDIN MALEK v. STAIB 
137 
not be disbelieved. 
Criminal Trial : 
Circumstantial evidence-Crime objects-Clothes of accused-Produc-
tion of-By two persons in presence of pan ch witnesses-These two persons 
A 
not examined by prosecution----Held: it was not safe to accept statement of B 
panch witnesses that accused gave his clo.thes to these two persons. 
Circumstantial evidfmce-Crime objects-Muddamal razo~ecovery 
of-From house of accused-Panch witness did not say it was stained with 
blood-Origin of blood also could not be ascertained-Held : it was not safe 
to place reliance on this circumstance for convicting accused. 
Criminal Procedure Code, 1973 : Section 353. 
c. 
Judgment-Application of mind-Mistake of court while naming ac-
cused who had produced knife-Held : In the circumstances of the case, the D 
mistake could not be regarded as non-application of mind-Mistake com-
mitted by court either taken individually or cumulatively do not have effect of 
vitiating conviction. 
The first appellant was convicted under Section 120-B of the Indian 
Penal Code, 1860 and the second and third appellants were convicted E 
under Sections 147, 148, 302 and 451 read with Section 149 I.P.C. and . 
Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. 
According to the prosecution about 25 to 30 Muslim boys formed a 
mob and started shouting words like 'beat', 'kill', 'kill Hindus'. Some of 
them were armed with weapons. After attacking some persons the mob F 
kept waiting at the entrance of a street. Appellant No. 1 was the driver of 
a city bus with about 50 passengers. As soon as the bus reached the 
entrance of the street Appellant No. 1 stopped it even though he was told 
by the passengers not to do so as they saw a mob of persons armed with 
weapons standing near the entrance of the street. Appellant No. 1 got down G 
from the bus and had some talk with the mob. Soon thereafter the said 
mob which included Appellants Nos. 2 and 3 attacked the bus, inflicted 
injuries to the passengers and Appellant No. 2 gave a 'Gupti' blow to the 
deceased. On seeing the police coming the appellants ran away. 
In the appeal before this Court on behalf of the appellants-accused, H 
138 
SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R. 
A it was contended that the trial court either misread the evidence or did not 
apply its mind with the result that the findings stood vitiated; that neither 
the evidence of the eye-witnesses nor the evidence relating to identification 
of Appellants 2 and 3 nor the evidence relating to the discovery of weapo

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