minal Appeal No 151 of 1970
Appeal by Special Leave from the judgment and order dated the 25th March 1970 of the Gujarat High Court at Ahmedabad in Criminal Appeal No 517 of 1969
N P Maheshwari for the appellant
section N Anand M N Shroff and section P Nayar for the respondent
The appellant Ahir Bhagu Jetha is one of the 18 persons charged with the Offence of rioting armed with deadly weapons on 28th of June 1968  at about 7 30 p m at the village Kumbharia in the State of Gujarat
This riot which was alleGed to have a communal background was said to have resulted in simple injuries to several persons grievous injuries to others and the death of Lalmamad Murvaji
The Sessions Judge of Kutch who tried the case acquitted 9 accused persons and convicted the rest of various offences said to have been committed in the course of the riot
Out of those six accused persons including the appellant were convicted under Section 302 5 602 Sup
CI74 478 IPC read with section 149 I P C and sentenced to imprisonment for life
On an appeal to the High Court of Gujarat the whole story of riot as set up was disbelieved
Seven convicted persons were acquitted
The appellant alone was convicted under section 302 I P C and sentenced to life imprisonment
Another accused who did not appeal and who was convicted under section 324 I P C only and sentenced to 9 months rigorous imprisonment and to pay a fine of Rs 300is not before us
We are therefore concerned only with the case against Bhagu Jetha who has been convicted by the High Court for an offence punishable under section 302 I P C although he was charged and convicted of an offence punishable under section 302 IPC only with the aid of section 149 I P C
As the charge for rioting failed he was not and could not be convicted with the aid of section 149 I P C
No separate charge was framed under section 302 I P C simpliciter
We need not consider the effect of the omission in this case as we are satisfied for reasons given below that the appeal must be allowed on a bare examination of allegations and evidence in the case
The two groups between which tension existed prior to the occurrence consisted of Ahirs who are Hindu and Samas who are Muslims over the taking out of tazia processions during Mohurrum
On the day of occurrence Bhuraii Ravii and Ranaji Viraji of the Samas community were said to be sitting at the trance of the Samas locality when Govan Mandam an Ahir objected to it on the ground that Ahir womenfolk had to pass that way for fetching water Bhuraji and Ranaji were alleged to have expostulated and said that they were doing no wrong in sitting outside in their own locality and that the Ahir ladies are like their own sisters and daughters to them
It is said that the deceased Lalmamad then appeared at the scene and took the side of Bhuraji and Ranaji
Thereupon Govan Mandan acquitted is alleged to have dragged Lalmamad towards a dunghill
At that time a number of Ahirs are said to have collected and fallen upon Lalmamadwho was thus said to have been done to death
It was also alleged that Ahirs threw stones at members of the Samas community as a result of which Bhuraji and Ranaji were injured
One Nandaji who is said to have tried to save Lalmamad is also alleged to have been injured
Shrimati Jambai P W 8 the wife of Nandaji who is alleged lo have come to the scene of occurrence and covered her husband was also injured An FIR was lodged at noon on 29 6 68 by a cousin of Lalmamad who alleged having seen the attack on Lalmamad and to have been near Lalmamad deceased when he was actually struck by the appellant by a Dharia
In this FIR only four accused persons including the appellant are mentioned and Lalmamad Ranaji and Nandaji are shown to have been injured
No injuries on the person of the appellant were mentioned
The High Court in the course of a fairly elaborate judgment came to the conclusion that the origin of the incident set up intended to suggest that the Ahirs picked up a quarrel deliberately by saying that their women folk were to take water from the Samas locality was most improbable in view of the previous tension and division of the village into Ahir and Samas compartmentalised localities
It pointed out that no quarrel over the taking of water from any well or 479 pond from the Samas locality by Ahir women folk had ever before taken place
It also came to the conclusion that the story that the Lalmamad was dragged 50 feet by the Ahirs before he was assaulted and killed was untrue
The postmortem report shows that there were no marks of dragging on the body of Lalmamad
No clothing of the deceased was proved to be torn
It pointed out that all the prosecution witnesses spoke of an attack upon the deceased Lalmamad begun by a heavy blow on the head given by Megha Bhima acquitted accused person with a Lathi which had an iron ring attached to it
This version was belied by the only injury with a sharpedged weapon found on the body of Lalmamad deceased
The serious injuries of the appellant who was also found lying on the road could not be explained by the prosecution version
It was also found that a stick and not a Dhariya was found lying beside the appellant
No one spoke of the Dhariya alleged to have been used by the appellant having been taken away from the scene by anybody
Therefore the whole story of an attack by the appellant on Lalmamad deceased with a Dhariya either in the course of the riot or after it became most improbable
The High Court while discarding the case of an unlawful assembly as set up by the evidence of the prosecution witnesses had held the appellant guilty of murdering Lalmamad only because the appellant was undoubtedly found lying injured on the spot and had pleaded that he was attacked because he had objected to the beating of a boy named Duda Pachan by a group of members of the Samas community approaching with Dhariya spears sticks and axes
The High Court had found that the appellant had serious injuries on his body
We think that the High Court had not given due importance to this fact and had dismissed the statement of the appellant that he had only a stick with him without examining the credibility of this version supported by the fact that only a stick was found lying near the appellant who was so badly injured that he could not get up
There was only one injury found on the body of Lalmamad
It was described as follows by Dr D A Joshi who also performed the postmortem examination  There was only one injury on the neck mentioned in the column No 7
The mustoid bone was not fractured
The wound was 9 long 4 broad and 3 in depth
The place where the impact of the weapon would take place will be deeper
The depth of the wound 3 shown by me is the maximum depth which I found and it was at the back of the neck
The breadth of the injuries does not depend upon the breadth of the Dhariya
The width is correlative with the depth of the wound
I was not sent any weapon
The wound is also possible by an axe having a blade 9 or less and it depends on injury of the weapon from the back side of the neck upto the chest
The wound started from the middle of the back of neck
There was no injury on the teeth but the jaw bone was exposed
This injury was possible by one blow
480 The injury on the body of Lalmamad belies the whole prosecution case that a body of persons had fallen upon Lalmamad and done him to death and that a Dhariya blow was inflicted by the appellant in the course of that attack
The place where Lalmamad had fallen as well as the nature of the injury on his neck indicates that it was most probable that Lalmamad was caught alone in the dark near the Ahirs  locality by somebody who cut his neck with a weapon like a Dhariya
Night had fallen then
It could not be asserted on the evidence on record that the person who cut the neck of Lalmamad was necessarily the appellant
It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty
Apparently this is why the witnesses had tried to involve the appellant whose participation in the occurrence seemed to them to be established by his having been found lying on the road in an injured condition
This may be enough to convince unsophisticated persons of his complicity in the murder of Lalmamad
But a court of justice has to sift and analyse evidence very carefully  so as to determine whether the case against an accused person is established beyond reasonable doubt
This is particularly necessary in a case with a communal background in which partisan witnesses may depose falsely out of a mistaken or misplaced sense of a group loyalty
The result is that we allow this appeal and set aside the conviction and sentence of the appellant who will be released forthwith unless wanted in some other connection


Summary:
A riot which was alleged to have a communal background resulted in the death of a person
The trial court convicted the appellant and some others under section 302 read with section 149 IPC The High Court in appeal convicted only the appellant under section 3020
The High Court while discarding the case of unlawful assembly as set up by the prosecution held the appellant guilty of murder only because the appellant was found lying injured near the scene of occurrence and had pleaded that he was attacked by a group of members of the Muslim community
Allowing the appeal to this Court HELD  The High Court had not given due importance to the fact that the appellant had serious injuries on his body
The High Court dismissed his statement that he had only a stick with him without examining the credibility of his ver sion which was supported by the fact that only a stick was found near him while the only injury on the deceased was caused by a sharp edged weapon
It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty and partisan witnesses may depose falsely out of a mistaken or misplaced sense of group loyalty
In the present case the participation of the appellant in the occurrence might have seemed to the witnesses to have been established by his having been found lying near the scene of occurrence in an injured condition
This may be enough to convince unsophisticated persons of his complicity in the murder but a court of justice has to sift and analyse the evidence very carefully particularly in a case with a communal background to determine whether the case against the accused is established beyond reasonable doubt
479E F 480B D