DILAVER HUSSAIN SON OF MOHAMMADBHAL LALIWALA ETC.versusSTATE OF GUJARAT AND ANR.

           DILA VER HUSSAIN SON OF MOHAMMADBHAl
A
                         LAUW ALA ETC.
                              v.
                  STATE OF GUJARAT AND ANR.

                              OCTOBER 5, 1990
B
          [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.
c
          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
D   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:
E
          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- ·
f   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
G   Judge. Those convicted have come up in appeal. At the same time, a
    reference has been made for confirmation of death sentence.
                                                       ~ ··-·~.
          Allowing the appeals and acquitting the accused and discharging
    reference. this Court,

H         HELD: (1) Sentiments or emotions, howsoever strong, are neither

                                       108
                    DJLAVER v. STATE OF GUJARAT                        109

 relevant nor have any place in a court of law. Acquittal or conviction      A
 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       B
 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]
                                                                             D
      (4) From· the location of Ambalal's house it is clear that one could
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           E
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         F
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 G
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      H·
whole structure. [i18A]
    110          SUPREME COURT REPORTS             I 1990] Supp. 2 S.C.R.     .,.-.
                                                                              .
                                                                               \ .
A         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    'Nos. 259-64of 1987.

         From the Judgment and Order dated 20.4. 1987 of the Designa-
    ted Court, Ahmedabad in Terrorist Criminal Case No. 3 of 1985 with            •
    Terrorist Criminal Case Nos. 13 of 1985 and 6 of 1986.
B         '' T.U. Mehta, A.S. Quereshi, Salman Khurshid, S.H. Kureshi,
    Mrs. Vimla Sinha, lrshad Ahmed. Imtiaz Ahmed, Gopal Singh and
    S.M. Qureshi for the Appellants.

         P.S. Poti, M.N. Shroff, Anip Sachthey, Bimal Roy. Kailash
    Vasdev, Ms. A. Subhashini, Chava Badri Nath Babu, Girish Chandra,
c   Biman Jad and Ashish Verma for the Respondents.

           The Judgment of the Court was delivered by
                                                                  ..
          R.M. SABAi, J. Tragic trauma of ghastly, in human and beastly
D   behaviour of one community against another depicted for weeks and
    weeks, in this criminal appeal, forcefully, at times, emotionally still
    hangs heavily. What a tragedy? Eight human lives roasted alive. Five
    in w-aiting for gallows. Neighbours residing peacefully for generations
    sharing common happiness and sorrow even playing cricket togehter
    suddenly went mad. Blood thirsty for each other. Burning, looting and
E   killing became order of the day. Even ladies attempted to prevent fire
    brigade from extinguishing fire. How pathetic and sad.

          Still sadder was the manner in which the machinery of law
    moved. From accusation in the charge sheet that accused were part of
    unlawful assembly of ·1500 to 2000 the number came down to 150 to 200
F   in evidence and the charge was framed against sixty three under
    Terrorist and Disruptive Activities (Prevention) Act, 1985 (in brief
    TADA Act) and various offences including Section 302 under Indian
    Penal Code. Even from that fifty six were acquitted either because
    there was· no evidence, and if there was evidence against some it was
    not sufficient to warrant their conviction. What an affront to funda-
G   mental rights and human dignity. Liberty and freedom of these
    persons was in chains for more than a year. For no reason. One even
    died in confinement.

         All this generated a little emotion during submissions. But senti-
    ments or emo_tions, howsoever, strong are neither relevant nor have
H   any place in a court of law. Acquittal or conviction depends on proof
             '
              DILAVER v. STATE OF GUJARAT [SAHA!, J.l                 111

or otherwise of the criminological chain which invariably comprises of
                                                                            A
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 consis-
tent that the, only conclusion which must follow is that the accused is
guilty. Although guilty should not escape. But on reliable evidence
truthful witnesses and honest and fair investigation. No free man           B
should be amerced by framing or to assuage feelings as it is fatal to
human dignity and destructive of social, ethical and legal norm. Heni-
ousness of crime or cruelty in its execution howsoever abhorring and
hateful cannot reflect in deciding the guilt.

      Misgiving, also, prevailed about appreciation of evidence. With-
out adverting to submissions suffice it to mention that credibility of      G
witnesses has to be measured with same yardstick, whether, it is an
ordinary crime or a crime emanating due to communal frenzy. Law
does not make. any distinction either in leading of evidence or in its
assessment. Rule is one and only one namely, if depositions are honest
and true: Whether the witnesses, who claim to have seen the incident        D
in this case, withstand this test is the issue" But before that some
legal and general questions touching upon vernGity of prosecution
version may be disposed of.

      Trial under TADA Act was assailed, both, because of the Act
being ultra vires of the fundamental right guaranteed under Constitu-       E
tion and abser.ce of circumstances justifying its extension to the State
of Gujarat. For the latter no foundation was laid therefore it was not
permitted to be raised. And the former is awaiting adjudication before
Constitution Bench from where this appeal was got delinked. Invoking
of provisions of TADA Act, in communal riot, was attacked and it was
submitted that a combined reading of Sections 3 and 4 with explanation      F
indicated that the Legislative intention was to confine the applicability
of the Act to secessionist or insurgency activities against the State and
not to ordinary crimes for which provisions exist in the Penal Code.
Since the Constitution Bench is already ceased of the matter we are of
the opinion that these aspects too can, well be raised there.
                                                                            G
      From acquittal of thirty seven accused for lack of evidence even
though they were arrested in rounding off operation by the military,
after cordoning off the area immediately after the incident, itwas
vehemently argued that it demonstrated that prosecution was not fair
and there was deliberated attempt to rope in appellants who were
well-to-do persons of the community not because they had a.1y hand in
                                                                               '
     112        SUPREME COURT REPORTS               [ 1990) Supp. 2 S.C.R.

    the crime but for extraneous reasons. It was emphasised that if persons
A
    arrested on the spot residing in the same locality could not be
    identified nor any evidence could be produced against them then it was
    clear that the case against the appelllants was also not trustworthy and
  · they were implicated either because of enemity or for oblique motive.
    Although the argument did appear to be attractive on the first flush
B but it was dispelled soon by the learned counsel appearing for the State
    who submitted that the mistake in charge-sheeting those accused along
    with appelllant was bloated out of proportion. According to him the
    incident for which the appellants have been convicted and sentenced
    was part of a different transaction, although it took place on the same
    day, than the incident in which thirty seven persons were rounded off.
    The learned counsel explained with help of Colonel Sudhakar PW 2 l's
c statement and, in our opinion, rightly, that these arrests were made in
    consequence of action taken by the military, on a different mob, as it
    included many ladies who did not form part of earlier mob, while
    attempting to bring situation under control after the incident. There-
    fore, it is not possible to draw any adve;se inference against prosecu-
D tion on this score.

          Time, place, background and manner in which dastardly crime
    was committed on 9th June, 1985 in broad daylight at 2.30 p.m. was by
    and large not in dispute. What started as agitation in February 1985
    against government policy of reservation, in the State of Ahmedabad,
E   turned into commu.nal riots between Hindus and Muslims in March,
     1985 which went on, continuously, for Jong spell resulting in enormous
    Joss of life and property of both the communities. Situation deteriora-
    ted so much that military had to be called and stationed in sensitive
    areas, in April, 1985, including Dhabgarwad, a large area with Hindus
    and Muslims residing at places side by side and others exclusively. In
F   March 1985 riot of shocking magnitude had taken place in this area
    resulting in mass exodus of Dabgars, a Hindu community, who earned
    their livelihood by manufacturing musical instruments such as drums
    and also umbrellas and kites. When calm was partially restored, due to
  the military being stationed, some of them returned and some used to
  visit their houses in day time to look after their property or business.
G Maniben, a dabgar, whose one of the daughters had married a muslim
  but was having strained relations with him, continued to live in her
  house either because she had no other place to go or she was confident
  that she shall not be harmed. However despite stationing of military
  incidents went on whenever or wherever least opportunity was avail,
  able with the result that curfew was clamped, continuously, in the area
H frotn 7th June, 1985. As ill luck would have it the military stationed in
              DILAVER v. STATE OF GUJARAT (SAHA!, J.I                113

the area left for some other place at about 1.30 p.m. on 9th June, 1985.
                                                                            A
Taking advantage of the vulnerability, due to absence of military,
members of minority community converged from two sides and when
they intermingled in the corner somewhere near the house of Maniben
or electric power sub-station they indulged in most cowardly and
shameful act of pushing open the door of her house setting fire to it
and then chaining it from outside resulting in death of the lady, her       B
two daughters, four grand-children and son of a neighbour. Next
house set ablaze was of Navin and then many others.

      Prosecution version can thus be divided in three parts one, entry
of mob from two sides one from Magadom Pole and other kalupur
Panchpatti shouting 'kill' 'cut' pelting stones, throwing acid bulbs and
flambeaus on houses of Hindus while approaching towards Nani Ali
                                                                         c
Pole. The second was meeting of the two groups on the corner of Nani
Ali Pole and then pushing open the door of Maniben's house by five
appellants armed with burning flambeau, iron pipe, stick, kerosene
and bottle of petrol sprinkling of kerosene or petrol inside the house
setting it ablaze then coming out of the house closing and shutting the- D
door and chaining it from outside. The third was entry of appellants
thereafter in the house of Navin setting it on fire and then entering in
Nani Ali Pole with other members of mob and attacking houses of
Kantilal, Kalidas and others.

      To prove it th~ prosecution examined twenty two witnesses·            E
which were grouped by the trial judge in seven. One .and rtie main
group consisted oJ Navin PW 1, Ambalal PW 8, Rati!al PW 9, and
Kalidas PW 13. These were the witnesses who were 'said to have
collected at the house of Ambalal from where.they·witnessed the
occurrence and the participation of the appellants in it. The second
group consisted of Kalidas PW 7, Ramanlal' PW 10, Manchharam PW             F
12, who were said to have witnessed the incident from the house of
Kalidas Chhaganlal. The third group consisted of A run Kumar PW 11,
Jaswantlal PW 14, Dilip.Kumar PW 17 and Sanmukhbhai PW 20, who
were witnesses who are said to have arrived on hearing the shouts an<l
commotion and witnessed the occurrence from near Dabgarwad Police
gate. The other group~ comprised of official witnesses.                     G

       No wit2ess was e1rnmined from any of the house situated on.
either side of road from where the two mobs entered.or from any of
the houses ,situated on the route through which the mob passed·before
it reached 1the corner of Nani Ali Pole to establish identity of accused.
Mod which entered from Magadom Pole side was admitted by                    H
    114         SUPREME COURT REPORTS               [ 1990] Supp. 2 S.C.R.

                                   "
A Ambalal to have passed from,the front of his house. But he stated that
  he could not recognise anyone out of them. Appellants according to
  prosecution were in the mob which came from Kalupur Panchpatti.
  From the place from where the mob entered and to the corner of Nani
  Ali Pole the mob had to pass from a long route which is inhabited by
  houses on both sides but not one witness was produced from any of
B these house nor it was clearly brought out that inmates of all these
  houses were of minority community only.

  ,      For the second group of witnesses who according to prosecution,
  saw the occurrence from the house top of Kanti Lal the Judge himself
  found that they were not in a position to see the road in front of house
  of Navin nor they were in a position to see the road in front of house of
C Maniben. He, therefore, observed that so far evidence of these witnes-
  ses in respect of attack by the mob on house of Maniben and Navin was
  concerned it could be relevant only generally that they set fire to the
  house. That is they could not be taken to be witnesses to prove that
  appellants broke open the door of Maniben's house or set fire to it or
D chained it from outside.

        Nor is the evidence of third group of witnesses helpful as they had
  collected near the gate of police outpost. Distance between the gate
  and place of incident appears to be not less than 200 to 250 feet.
  Moreover they collected after the house of Maniben was set on fire.
E And it was admitted by PW I, 8, 9 and 13 that the house of Navin,
  Kantilal, Ambalal could not be seen from police outpost. Their
  testimony thus cannot be taken into account for proving second part of
  the incident which resulted in death of inmates of Maniben's house.

         Fate of the appellants, therefore, hangs on credibility of first
F  group of witnesses. For its better appreciation it is necessary to set out
   topography of the place of the incident. From the map it is clear that
   the house of Maniben alongwith cluster of six other houses in
 , surrounded on all sides by lanes and roads. Immediately above her
   house is house of Navin in North. Then there are two houses, parallel
   to each other, in south of her house. There are three more houses one
G after the other, in south. On west side of these is lane. So is a lane in
   north side after which there is electric sub-station. On the left of sub-
   station there is gap and then there is one house and in its north is the
   house of Kantilal. On the east of Maniben 's house is the Dabgarwad
   road which runs somewhat in semi circle running from Kalupur
   Panchpatti situated in extreme south east towards west, taking turn
H from near Dabgarwad Police outpost in the South moving up towards
                  DILAVER v. STATE OF GUJARAT [SAHA!, J.l                 115

    north east in angle tilting slightly from somewhere near cluster of
    houses round Maniben's house and then proceeding towards Darya-             A
    pur. House of Ambalal from where first set of witnesses ·had seen the
    occurrence is on this road from where the road tilts. It was admitted by
    PW l that house of Ambalal was obliquely situated. That is clear from
    the map as well. If from the two ends of the house, south and north
    facing the road straight lines are drawn towards west they shall pass       B
    through the lane in front of Navin's house and power station respec-
    tively. Navin PW 1 whose house is situated in north of Maniben's
t   house admitted that electric sub-station was in front of Ambalal's
    house. Rati Lal PW 9 stated that on one side of the road was his house
    and on other of AmbalaL The house of Ambalal was thus above Mani-
    ben 's house towards north-east.
                                                                                c
          To bring home the guilt the prosecution was required to prove
    the presence of witnesses, possibility of seeirig the incident by them
    and identification of the appellants. Importance of first arose as due to
    riots in March 1985 there was mass exodus of Hindus from Dabgar-
    wad. Therefore presence of these witnesses was attempted to be chal-        D
    lenged as curfew having been imposed from 7th June and Col.
    Sudhakar, PW 21, incharge of Military stationed, in the area, having
    stated that no passes were issued to anyone it was not probable that
    any of the witnesses who claim to have seen the occurrence could have
    been present. But it appears to be devoid of any merit in view of
    unimpeachable testimony of the witnesses that they were present in          E
    their houses either becatts.e they had come earlier after restoration of
    partial calm or they had come on the day of occurrence to see their
    business and they were not prevented by the police even if they did not
    have any pass. The Judge had examined this aspect in detail and found
    from various circumstances, namely, restoration of partial calm due to
    presence of military personnel, death of eight persons in Maniben's         F
    house including children, rescuing of many persons trapped in the
    house of Kalidas Chhagan which too was set on fire, admission by
    accused in their statements under section 313 Criminal Procedure
    Code etc. that- presence of these witnesses could not be doubted.
    Further if the Dabgads had not returned and the area was deserted
    then where was the occasion for the mob to indulge in thi·s~~ndetta.        G
          But mere presence of witnesses was not sufficient. More
    important was if they saw the incident. It assumed importance due to
    two reasons one because entire set of witnesses saw the incident fro1n
    house of Ambalal which was situated upwards on the road towards '
    north-east as compared to the house of Maniben, and second that each H
    116         SUPREME COURT REPORTS                [ 1990) Supp. 2 S.C.R.

    of the witnesses including Ambalal admitted that the exterior of Mani-
A
    ben 's or even Navin's house could not be seen from interior of the
    house. From the location of Ambalal's house it is clear that one could
    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
B   where the incident was seen by the witnesses. Was it front of house of
    Ambalal or inside or roof. Prosecution did not make any effort to
    re1nove this defect, obviously, because the investigation itself suffered
    from this flaw .Although the defence, also, did not make any attempt
    to get it clarified, may be as a part of clever design as to from where
    these witnesses saw the occurrence but the disadvantage, if any is of
    prosecution. As stated earlier, this was very relevant as every witness
c   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 appellant from house of Ambalal is very
    shaky. The prosecution left an important lacuna.

D           Unfortunately, each witness not only stated that he saw the
    appellants but they went on to describe with remarkable similarity in
    detail the article which each accused had in his hand: What is surpris-
    ing is that accused had come from Kalupur side therefore they could
    not have been seen prior to their arrival near electric sub-station
    before which everyone had entered house of Ambalal yet it is they and
E   they alone who could be identified from the entire mob. PW l admit-
    ted that when he rushed from his house in fear the mob of Kalupur side
    was 40 or 50 feet away. He also admitted that he saw these accused for
    the first time from the house of Ambalal from a distance of 20 feet. No
    subsequent witness tried to explain it. Others had reached admittedly
    prior to Navin. Therefore, they could not have had occassion to see the
F   Kalupur mob and if they saw then it must have been at a longer
    distance. Statement of PW 9, therefore, that the appellants were lead-
    ing the mob is very difficult to be acceppted. And if they saw for the
    first time from house of Ambalal, as stated by Navin and not improved
    upon by others, then it is very difficult to accept that they could have
    identified these appellants .. PW 1 further admitted that if anyone stood
G   with his face towards house of Maniben his. then his back only could be
    visible from Ambalal's house. That is clear from map as well. There-
    fore identification of accused from out of the mob even if they were
    known from before becomes highly doubtful.

         Out of persons who had collected at house of Ambalal only four
H   were examined. It was admitted by every witness that the last to enter
              DILAVER v. STATE OF GUJARAT [SAHA!, J.J                  117

the house were Navin and his father. Time of entry as given by witnes-
                                                                              A
ses was before mixing of the mob at the corner except Ambalal who
stated that he came after the mob had collected. But that appears to be
improbable .as he was so scared that he ran with his father without even
closing door of his house. And if he would h.ave come out when mob
had collected then it is difficult to believe that he would have been
spared when his house too was burnt. Navin was the first witness to be        B
examined. He stated, categorically, that when he entered the house of
Ambalal it was closed from inside. It was attempted to be improved
upon by Amhalal who stated that he kept the door ajar. But apart
from normal human behwiour to close the door, for protection in the
beckground of incident of March and fear generated by shout of 'kill',
and 'cut', the other witnesses PW 9 and PW B too stated that the door
was closed after entry of Navin. In any case the incident having taken        c
place after entry of Navin and the door having been closed thereafter
or even ajar or half closed it was necessary for prosecution to establish
how did the witnesses see the occurrence when they admitted that the
exterior of Maniben's house or even of Navin could not be seen from
inside of Ambalal's house. The deficiency in prosecution version was          D
attempted to be explained by the judge by adverting to evidence of PW
 13 that Ambalal was opening and closing the door every now and then,
therefore there was nothing improbable in witnesses having seen the
occurrence. But the approach was, both, faulty and illegal. The con-
clusion by picking up isolated sentence without· adverting to other
parts of his statement where he admitted that after entry, of all, the        E
doors of the house were closed, and, he was able to identify the appel-
lants when they were effecting entry in house of Maniben and that he
did not identify anyone out of the mob till he entered the house of
Ambalal was contrary to rule of appreciation of evidence. Reading the
whole statement together makes it consistent with evidence of other
witnesses and leaves no room for doubt that opening and closing the           F
door was resorted to let in the persons who were reaching house of
Ambalal due to fear of mob. And the exercise of opening and closing
being over after entry of Navin seeing the mob or identifying the
accused in process of opening and closing was out of question. The
finding of the judge, thus, that 'it is not as if that once the door of the
house of Ambalal was closed it was never opened again at any time             G
before these persons escaped from the house of Ambalal ..... There-
fore, everl'{hough the house of Amba\a\ is slightly obliquely situated as
compared to the house of Maniben, it would not at all be difficult for
these witnesses who had hid themselves in the house of Ambalal to
have correctly identified the accused', is not based on appreciation of
evidence but on imagination.                                                  H
     IJ8         SUPREME COURT REPORTS               [1990) Supp. 2 S.C.R.

           Thus prosecution version suffered from serious infirmity. Its fai-
A
    lure to bring on record evidence which could establish the possibility
    or even probability of the witness seeing the occurrence demolishes
    the whole structure .. Since it was admitted to all the P. W.s that the
    exterior of Maniben's house could not be seen from interior of Amba-
    lal's house the prosecution could succeed in establishing its case only if
B it could prove that witnesses even then could have seen the occur-
    rence. The only possibility of seeing the occurrence could be either
    from the road or standing in front of Ambalal's shop or if there was
    any source from inside house of Ambalal. Evidence is lacking for
    either. Possibility of the first two alternative from where incident could
    have been seen is out of question. Witnesses were so terrified due to
    incident of March 1985 that they could not remain outside. PW I was
c so afraid that he rushed with his father without even closing door of his
    house. And if he would have come out when mob had reached house
    of Maniben was stated by Ambalal then there would have been e:;ery
    possibility of his ·being attacked. PW 9 and 13 too were afraid and
    rushed to Ambalal's house. Every time these witnesses reached the
D door was opened and after entry it was closed. Last man to enter was
    Navin Chandra. No witness has stated that it was opened thereafter
    even once to look outside. How did then these witnesses see pushing
    open of Maniben's door by appellants, setting fire to her house and
    chaining' from outside. It was for prosecution to explain. It could not
    be taken for granted merely because each witness repeated that they
E   knew   the appellant from childhood and each of them was armed with
    articles mentioned in their hand. Ambalal did state that the door of his
    shop had seven planks joined by hinges. But the prosecution stopped
    there. It did not dare to come out with the case that the witnesses saw
    from the crevices. Therefore the prosecution version suffered from a
    lacuna which was fatal.The doubt thus created if the witnesses saw the
F · occurrenc at all is strengthened by subsequent conduct and behaviour
    of these witnesses. The prosecution version was that the moment the
    mob moved from house of Maniben to house of Navin Chandra to-
    wards Nani Ali Pole side the witness came out of Ambalal's house and
    dashed towards police gate where large number of persons had col-
    lected. But strangely not one of them told it to anyone present there or
G even to police personnel that Maniben's house was burnt by appel-
    lants. It was against normal human behaviour as all the appellants
    were known from before. The incident had taken place due to com-
    munal frenzy. It is, therefore, difficult to believe that once these
    witnesses reached Dabgarwad Police gate they would not have shouted
    at top of their voice that the appellants known as Lallewal!as had killed
H Maniben. What is further surprising is that they did not disclose the
,,
                   DILAVER v. STATE OF GUJARAT ISAHAl, J.)                  119

     names even to Manchharam whose son had been burnt alive in house             A
     of Maniben, nor to anyone in the hospital and kept their mouth sealed
     till 11th June 1985 and opened it for the first time in the Police Station
     when their statement was recorded giving graphic description step by
     step. Not only that the PW 9 and 13 broke down in cross examination
     and admitted that they had not seen the appellants setting fire to the
     house of either Maniben of Navin. They were saying so by inference as        B
     they had seen smoke coming from the houses. Thus witnesses and
     circumstances both are against prosecution version. Although there
     are contradiction on material aspects in statement of these witnesses
     and arguments were addressed on late recording of evidenc, failure to
     produce the Chief Fire Officer, to establish if house was chained from
     outside, delay in preparation of panchnama of Maniben's house etc.           c
     but we consider it unnecessary to discuss them as the prosecution, in
     our opinion, failed to prove beyond shadow of doubt that the dreadful
     crime was committed by appellants. There is thus no option but to
     acquit these accused. We, however, hope that our order shall bring
     good sense to members of both the communities residing in Dabgar-
     wad and make them realise the disaster which such senseless riots            D

!
I
     result in and they shall in future take steps to avoid recurrence of such
     incidents and try to .resort to the atmosphere that prevailed before
     March 1985.

           For the reasons stated above all these appeals succeed and are
     allowed. Reference No. I of 1987 for confirmation of death sentence is       E
     discharged. The conviction and sentences of appellants herein under
     section 3(2)(i) of Terrorist and Disruptive Activities (Prevention) Act.
     1985 read with section 34 of the Indian Penal Code, 302 Indian Penal
     Code read with sections 34, 436/ 149, 449, 143 and 148 of Indian Penal
     Code are set aside. The conviction and sentence of Hamon S/o
     Kalubhai Laliwala, under section 3(2)(ii) of the TADA Act 1985 is            F
     also set aside. The appellants shall be set at liberty forthwith unless
     they are required in any other connection.

     R.S.S.                                                  Appeals allowed.