MOHMEDRAFIZ HUSENMIYA THAKOR AND ORS. versus STATE OF GUJARAT

Citation: [1996] SUPP. 9 S.C.R. 504 · Decided: 03-12-1996 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
MOHMEDRAFIZ HUSENMIYA THAKOR AND ORS. 
v. 
STATE OF GUJARAT 
DECEMBER 3, 1996 
B 
[DR. AS. ANAND AND K.T. THOMAS, JJ.] 
Criminal Law : 
Indian Penal Code, 1860-Section 302/Terrorist and Disrnptive Ac-
C tivities [Prevention] Act,-Section 3 and 4-f'rosecution under-With regard 
to 5 appellants identification by eye-witness corroborated by other wit-
nesses-ff eld, conviction justified-Hence, upheld-With regard to 2 appel-
lants--1 dentifi cation by only one witness-No corroboration by other 
witnesses-Hence, acquitted-With regard to other 2 appellants their names 
D memioned as assailants by eye-witness-2 other accused bearing the same 
name, acquitted by trial coult-Held, there is reasonable doubt as to identity 
of the accused whether the witness meant the appellant or other two ac-
cused-Hence, acquitted. 
E 
Criminal Trial : Regarding evidence in cases involving multiplicity of 
accused-Trial Courts to indicate the rank of the accused, besides using the 
name-High Courts to issue circulars to Trial Courts to implement the 
practical suggestion to avoid possible miscarriage of justice-It is essential 
since the appellate and revisional Courts have to exercise jurisdiction with the 
F help of records. 
63 persons, inclnding the 9 appellants were charged under Section 
302 IPC & Sections 3 & 4, TADA Act. There were 3 eye witnesses to the 
incident. In trial before the Designated Court, one eyewitness [P.W. 5], 
deposed that he identified A-42, A-43, A-44, A-45, A-46, A-47, A-48, A-49 
G and A-58 as assailants. Another eyewitness [P.W. 6], deposed that he 
identified only A- 42, A-45, A-46, A-49 and A-58. The third eyewitness [P.W. 
4], identified A-42, A-45, and A-58. He also named 'M' and 'I' as assailants 
who were treated by the trial court as A-43 and A-47. There were 2 other 
accused A-1 and A-53 bearing the same name. There was no corroboration 
H with regard to A-44 and A-48. 
504 
M.H. TIIAKOR v. STATE i 
505 
Relying on the eyewitnesses, the trial court convicted the appellants A 
and acquitted the rest of the accused including A-1 and A-53. 
In appeal u/s 19 of TADA Act, this Court 
HELD : 1. The Court is unable to sustain the convictioil of four 
appellants who are A-43, A-44, A-47 and A-48. Therefore, the conviction B 
and sentence passed on them is set aside. No other witness has supported 
the version of PW. 5 that A-44 & A-48 were also the assailants. The 
·reference made by PW. 4 could as well apply to A-53 and A-1 also instead 
of A-43 and A-47. There is a real doubt regarding the identity of the 
accused as to whether PW. 4 would have meant A-53 and A-1. The Mnefit C 
' 
of that reasonable doubt is extended to A-43 & A-47. [509-G-H' C-Dl( 
2. PW-5 has identified all the 9 appellants as participants in the 
crime, but PW-6 has identified only A-42, A- 45, A-46, A-49 and A-58 and 
PW-4 has also said that A-42, A-45 and A-58 were participants in the 
incident. In view of facts and circumstances, the conviction and sentence 
passed by the trial court on other appellants viz. A-42, A-45, A-46, A-49 & 
A-58 is confirmed. [508-H; 509-A-B; 510-A-B] 
[The court observed that the trial court should indicate the rank of 
D 
the accused, besides using the name, while recording evidence in cases E 
involving multiplicity of accused; it would be profitable for the High Courts 
to issue circulars to the trial courts to implement this practical suggestion 
to avoid possible miscarriage of justice - resulting solely on account of 
defective and truncated recordin~ of evidence in criminal cases involving 
many accused, and that it is a necessary for the appellate and revisional 
' 
courts, since such courts have to exercise jurisdiction only with the help 
of records.] [509-E-G] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
31of1992. 
From the Judgment and Order dated 30.11.91 of the Designated 
Court in Kheda at Nadiad, in Gujarat in Cr!. Case No. 2 of 1991. 
U.R. Lalit and Ms. Kamini Jaiswal for the Appellant. 
F 
G 
Dr. N.M. Ghatate, Ms. N. Mukherjee and Ms. Hemantika Wahi for H 
506 
SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R. 
A the Respondent. 
B 
Uma Nath Singh (NP) for the Complainant. 
The Judgment of the Court was delivered by : 
THOMAS, J. Girishbhai was a Secretary of the local unit (Bhalej) of 
Vishwa Hindu Parishad and he was murdered by a group of people by 
attacking him with lethal weapons on the night of 27.3.1990. Police charge· 
sheeted 63 persons for the said murder and also for certa
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